Author Archive | Timothy Sandefur, guest-blogging

Thanks And Farewell For Now

My thanks again to the VC for lending me the podium this week to talk about The Conscience of The Constitution. I hope you’ll join me—in person or online—on January 30, when I speak about the book at the Cato Institute’s book forum. Then I’ll be participating in February’s Cato Unbound to discuss the debate over “judicial activism” (which takes up chapter 5 of my book).

If you enjoy The Conscience of The Constitution, you might also be interested in my other books, The Right to Earn A Living: Economic Freedom And The Law, and Cornerstone of Liberty: Property Rights in 21st Century America (on sale now for only $7 at the Cato store).

Please also bookmark the Pacific Legal Foundation’s Liberty Blog to follow our litigation in defense of economic liberty and other constitutional rights across the country—including our ongoing challenges to Obamacare, subject of the cover article in this issue of Regulation. And my personal blog is Freespace, where I write on various subjects of interest. You can also follow me on Twitter @TimothySandefur. [...]

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Ninth Circuit to Hear Challenge to Obamacare’s “Platonic Guardians” January 28

I mentioned in a previous post that Progressivism has a curious definition of “democracy” that largely takes the form of unaccountable administrative agencies wielding enormous power to regulate people’s behavior. Perhaps the most extreme example of administrative power—the Independent Payment Advisory Board, or IPAB—is the subject of the latest constitutional challenge to Obamacare to be heard by a federal court of appeals. The Ninth Circuit will hear the case in a special session in Las Vegas on January 28.

IPAB is an agency created by Obamacare to regulate Medicare reimbursement rates. This group of bureaucrats is required by the statute to promulgate “recommendations” as to how to reduce Medicare costs—except that those “recommendations” go into effect automatically, without Congressional or Presidential approval. On the contrary, the law specifically forbids Congress or the President from altering these “recommendations” (except in one limited sense: Congress can replace those “recommendations” with new ones, so long as they achieve the same reductions as the originals.) And Obamacare even attempts to make IPAB immune to repeal. It allows Congress to abolish the agency only by passing a joint resolution during a narrow one-month window in 2017—and that resolution must receive the most extreme supermajority ever required in American law. Courts are prohibited from reviewing IPAB’s actions, also. In short, IPAB is an autonomous lawmaking body that operates without Presidential, Congressional, or Judicial checks or balances.*

Given its extreme degree of independence from popular control, it’s not surprising that opponents of the law labeled IPAB a “death panel.” The law’s defenders called that an exaggeration because the law expressly forbids IPAB from “rationing care.” But the law also doesn’t define what “rationing care” means—and since IPAB’s actions are immune from judicial review, it’s hard to see how courts could stop it from doing so. [...]

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Kentucky’s War On The Little Guy…And Nevada’s…and Missouri’s…

Sunday at 10pm Eastern, Fox News will be rebroadcasting John Stossel’s special, War On The Little Guy, which includes a segment about my lawsuit on behalf of Kentucky entrepreneur Raleigh Bruner.

Some years ago, Raleigh started a moving business in Lexington called Wildcat Moving. What he didn’t know was that if you want to start a moving company in Kentucky, the law requires you to basically get permission from all of the state’s existing moving companies.

The law, called a Certificate of Necessity or CON law, works this way: to run a moving company, you need a license. But when you apply for a license, the law requires you to notify all the state’s moving companies and give them the chance to file an objection. And when an objection is filed, you have to go to a hearing and prove to the government that “existing moving services are inadequate,” and that a new moving company would be consistent with the “present or future public convenience and necessity.” What do these phrases mean? Nobody really knows. In fact, the chief lawyer for the state’s Transportation Cabinet testified under oath that there are “no objective criteria” for deciding what services are “inadequate.” And it’s hard to imagine how bureaucrats can predict “future public convenience.”

But one thing is clear: the law gives bureaucrats almost unlimited power to decide who can and who cannot run a moving business. In the past five years, there have been 39 applications for new moving licenses. Of those, 19 were subjected to protests by one or more existing moving companies, giving a total of 114 protests. You can see an example of a protest here. Note that it doesn’t even suggest that the applicant is unqualified or unsafe or untrustworthy. That’s typical; in fact, since [...]

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Conservatives Adopt Progressive Priorities

Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not be compelled to salute the flag, and overruled Minersville School District v. Gobitis only three years after the earlier decision had allowed schools to require this. Then in cases like Griswold, the Court recognized a right to privacy which ultimately barred the state from intruding into the bedroom. Justifying this right to privacy was difficult for Progressives, since doing so ran counter to democracy. Witness the fight between Justices Douglas and Black in Griswold. Black rightly argues that Douglas is reviving Lochner, but Douglas tries weakly to evade that accusation by taking shelter in weird language of “emanations” and “penumbras.” But the trend had begun of liberal justices reinjecting liberty considerations into some aspects of their jurisprudence, ultimately a healthy development, whatever its shortcomings.

What’s more interesting to me is how conservatives responded by making the Progressive theory of judicial restraint their own. They saw decisions like Griswold as disruptive to traditional values and social structures, and as rooted in abstract conceptions of justice of which good Burkean gradualists are always suspicious. But that gradualism combined with the primacy of democracy meant moral relativism. [...]

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How Rational Basis (D)evolved Into A Get Out Of The Constitution Free Card

I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate. [...]

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Holmes Helps Americans Go To Hell

The clash between the classical liberalism of the Constitution—which holds that individual rights are primary, and democracy is secondary, and limited by individual rights—and the “wolf’s view” of politics—which holds the power of the majority as primary, and sees rights as privileges given to the individual by the majority—persisted into the twentieth century. Although the Court had dealt the death blow to the Privileges or Immunities Clause, it did continue, in a limited way, to protect individual rights under the Due Process of Law Clause of the Fourteenth Amendment. This was through the doctrine now called “Substantive Due Process.” (In Chapters 3 and 4 of The Conscience of The Constitution, I explain why Substantive Due Process is the correct reading of the Due Process Clause—notwithstanding the mountains of scorn heaped on it by both left and right. But I won’t repeat that here, since I touched on the issue when I last guest-blogged here, and also wrote about it at Cato Unbound two years ago.)

The focus of the clash was never so much the concept of “substantive due process”—which was almost universally accepted until the New Deal era—as it was over the nature of sovereignty and the relationship between liberty and democracy. Those who held that government power was primary, and individual rights only privileges extended by the state never went away; on the contrary, by the opening years of the twentieth century, they had made significant advances.

The intellectual history here has yet to be fully explored—and is beyond the scope of my book—but I suspect that the general outlines of the story are these: the intellectual class of the Confederate cause, having been stripped by the Fourteenth Amendment of eligibility for office, and now no longer brash young men, moved into the universities, [...]

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A private little Slaughter-House Cases

The Slaughter-House Cases was a shocking reactionary retreat from what had been accomplished with the ratification of the Fourteenth Amendment. But it was not the first such case. Three years earlier, the California Supreme Court decided a similar case called People v. Brady, in which it declared that if the Justices thought the Amendment had been designed to provide federal protection for civil rights, then they would “regard [the Amendment] as we would a law apparently legalizing murder or robbery”! [...]

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Jeremiah Black And The Wrecking of The Fourteenth Amendment

The first Supreme Court case to interpret the Fourteenth Amendment was the 1873 Slaughter-House Cases, in which a group of Louisiana butchers challenged the constitutionality of a state law requiring that all slaughtering be done at a single, privately-owned abattoir. They argued that this law deprived them of the right to earn a living without the interference of government-created monopolies—a right recognized by English and American courts since the early seventeenth century, and that was among the “privileges or immunities” the new Amendment secured against state infringement. Unfortunately, the Court ruled against them, and essentially erased the Privileges or Immunities Clause from the Constitution.

Much has been written on the various things Slaughter-House got wrong. But my focus in chapter 2 of The Conscience of The Constitution is on how that decision ignored the central purpose of the Fourteenth Amendment. The Amendment was designed to implement the anti-slavery constitutional vision of paramount national citizenship. That conception, derived from the principles of the Declaration of Independence, held that national citizenship took priority over state citizenship; that natural and common-law rights of all Americans were secured to them by virtue of their national, not their state, citizenship; that all deserved federal protection against interference by state governments. The Amendment would deal the death-blow—so its authors hoped—to the antebellum States Rights ideology which held that state governments were sovereign; that their sovereignty was not bound by the principles of the Declaration; that states possessed, in William Blackstone’s words, “supreme, irresistible, absolute” power to do “anything that is not naturally impossible.” The anti-slavery constitutionalists believed this States Rights model had always been an incorrect reading of the Constitution; their new Amendment would settle the question once and for all.

One of the leading spokesmen for the States Rights model was a [...]

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The Liberty Constitution, Or, What About Slavery?

In my first post, I said that the basic premise of the Constitution is that people are fundamentally free, and that political institutions are created through that freedom, and are legitimate only insofar as they respect that freedom. The central value of the Constitution, I argue, is the liberty that the Declaration of Independence proclaims as the birthright of all people.

But can that be what the founders thought? After all, they lived with the institution of slavery, which obviously violated these principles. Can the founders have meant the Constitution to embody a classical liberalism that they were simultaneously flouting? Today it’s common to hear people say that the Declaration’s reference to equality actually only meant white men; that the Constitution was written only for white men—because the authors of these documents owned slaves. There’s one person who comes to mind who believed that the founders’ personal ownership of slaves was dispositive in interpreting the Constitution they wrote: Roger B. Taney. The fact that Jefferson and others owned slaves and did not immediately free them was, Taney asserted in Dred Scott, sufficient to show that they did not mean all men when using the phrase “all men” in the Declaration, and did not mean to include black people among the “people of the United States” referred to in the Constitution. Abraham Lincoln showed at tedious length in his Cooper Union speech how flimsy this argument really is, and it is tragic to see that many people today who consider themselves friends of equality and liberty—including even Justice Thurgood Marshallendorse Taney’s shoddy Dred Scott reasoning.

Yet we can’t understand Dred Scott unless we understand that Taney was hoping his decision would deal the death-blow to a rising tide of anti-slavery constitutional thinking—a strain of [...]

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The Wolf Amendment

Prof. Kerr asks a good question, one that touches on a point that differentiates my argument from that of some of my allies, and one that gives rise to another point that I think strengthens my view. How should a judge act if the American people were to ratify a constitutional amendment that explicitly adopted existing precedent and rejects the Declaration as a guide for constitutional interpretation? In such a case, I would argue that judges would be bound to comply with that amendment—with certain important exceptions.

If the Constitution were amended to declare, say, that “commerce” in Art. I sec. 8 includes economic activity that has the potential to interfere with the national economy when aggregated, then that would ratify existing practice and would be legitimate. In fact, I advocate something like this, myself. I believe that a constitutional amendment ought to be proposed to constitutionalize things that I think are not constitutional—various parts of the regulatory welfare state, for example. Were such an amendment proposed, I have no doubt that it would pass overwhelmingly—although I would vote against it. But even knowing I’d be outvoted, I would favor such an amendment being proposed and ratified, because it is better to have the Constitution clear on these things. Such an amendment would give constitutional legitimacy to the welfare state which it currently lacks—and would rectify the problem we now have in our constitutional law, where judges strain and force the text’s meaning (e.g., the commerce clause) or ignore whole swaths of it (e.g., the public use clause, the due process clause, the privileges or immunities clause) in order to rationalize the existence of institutions that are, in fact, unconstitutional. It is because judges bend over like Chinese acrobats to find some way to [...]

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The Conscience of The Constitution: An Introduction

It’s great to be back guest-blogging at The Volokh Conspiracy. And it’s well-timed, because just the other day , Prof. Volokh quoted one of my favorite passages from Lincoln, one I use on the first page of The Conscience of The Constitution.

The theme of my book is that the clash of these two conceptions of liberty—the right of the individual to be free, and the alleged right of some people to tell others how they may live—sets the background for understanding many of the most important conflicts in constitutional law. I argue that the central value of the U.S. Constitution is to protect individual liberty—the “sheep’s view” of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the “wolfish” notion that people have a basic right to control the lives of others. I argue that the primacy of liberty was the basic premise of the classical liberalism that lies at the foundation of American constitutional system—that is articulated in the Declaration of Independence—and that ought to guide our interpretation of the nation’s fundamental law. I call this the “conscience” of the Constitution.’

The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives. Although today it’s common for intellectuals to dismiss the notion of natural rights as mysticism or emotionalism, it is actually a sound philosophical position. People are “created equal” in the sense that they possess their own selves (and can’t give them up; hence “inalienability”). Given that initial position of individual freedom, there must be some good reason for limiting freedom. This entails government by consent—we have the right to a say as to how we are governed—but democracy is only an instrumental good, serving the more [...]

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Thanks — and Come Visit!

Thank you to The Volokh Conspiracy for allowing me to guest blog this week about economic liberty and the law. Economic freedom is one of the most crucial of human rights, and it is a shame that government violates this right in so many ways today, and with little serious opposition by the courts that are supposed to protect our rights.

Check out the new Right to Earn A Living book page, and if you haven’t joined our Facebook page, please do so today!

I hope readers will check out PLF Liberty Blog for more updates on the cases I and my Pacific Legal Foundation colleagues are litigating. Also, in the coming weeks I’ll be speaking at events across the country, and would love to meet any VC readers or PLF supporters. I’ll be speaking in Boston on Tuesday, Hartford on Wednesday, Portland and Brewer, Maine, on Thursday, and again in Boston on Friday. Check out the book page for a full schedule of future talks in those and other cities across the country.

Please also drop by my personal blog, Freespace, and Panda’s Thumb, where I sometimes write about creationsim/evolution issues. [...]

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The Poetry of Economic Liberty

There’s a surprising amount of great poetry about economic liberty; perhaps the most famous is Shylock’s comment in The Merchant of Venice, when Antonio recommends that the state confiscate Shylock’s property: “Nay, take my life and all; pardon not that: / You take my house when you do take the prop / That doth sustain my house; you take my life / When you do take the means whereby I live.” The Supreme Court quoted this passage in Adams v. Tanner, 244 U.S. 590 (1917), when it struck down a state law that outlawed employment agencies. While the government could certainly regulate such agencies to protect the public and to police against fraud or force, it could not “justify destruction of one’s right to follow a distinctly useful calling in an upright way.”

Other poets have celebrated economic dynamism; there’s Whitman’s evocative praise of American industry, and Sandburg’s ode to muscular Chicago; the New Deal’s insane restrictions on economic freedom led to Ogden Nash’s famous parody “One From One Leaves Two,” and also inspired a poem about the Shechter Poultry case by Mrs. Shechter herself.

But I’ve always most enjoyed Maya Angelou’s poem “Times Square Shoeshine Composition.” Although Angelou’s shoeshiner speaks ironically of capitalism, he is actually a prime example of the opportunity that free markets offer to people in his position, and Angelou’s warm celebration of his boastful pride in his work harmonizes remarkably well with Whitman’s mechanics and artificers. He really is a capitalist; an entrepreneur who has achieved a degree of self-reliance and pride that was, of course, totally denied to his ancestors. When he insists on the quarter and a dime instead of just a quarter, he brings to mind Frederick Douglass, who described in The Life And Times how he felt upon being paid [...]

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Florida District Court Refuses to Dismiss Obamacare Challenge

Judge Roger Vinson of the Northern District of Florida has issued a decision refusing to dismiss the constitutional challenge to the Obama Administration’s health care legislation. You can read the decision here, and more information here. On the Commerce Clause issue, the court said:

The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. As the nonpartisan CBO concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Of course, to say that something is “novel” and “unprecedented” does not necessarily mean that it is “unconstitutional” and “improper.” There may be a first time for anything. But, at this stage of the case, the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.

 I represent an individual in a separate lawsuit challenging the Individual Mandate. [...]

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Racial Impacts and Business Regulations

Intrusive business regulations have a disproportionately negative impact on the poor and members of minority groups, who lack the political influence that whereby wealthy corporations and politically well-connected people are able to obtain special government favors. Nobody has done better scholarship on this point than Volokh Conspiracy blogger David Bernstein. The historical examples of the abuse of licensing laws and other regulations to oppress racial minorities are legion, and depressing. But they aren’t surprising. The lesson of public choice theory is that when government can redistribute wealth or opportunities, that power will fall into the hands of politically well-connected groups, who use it to their own advantage at the expense of less favored groups.

The treatment of the Chinese in California is a distressing example. At the California Constitutional Convention of 1878 — organized by the anti-Chinese Workingmen’s Party — many delegates spoke of their readiness to exploit government’s regulatory powers to keep out the Chinese workers who competed with white labor. As one delegate said, the Chinese laborer was [...]

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