 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Powell. And I'm Trevor Burrus. And today, because America demanded it, we are back with more Roger Pilon. He is vice president for legal affairs and founding director of the Center for Constitutional Studies at the Cato Institute. Last time we went into an examination of the philosophical underpinnings of the social contract and ultimately our government. And so today we're going to be talking more about the history of our constitution specifically and interpreting it. But why don't we have you start by just giving our listeners the very brief version of those philosophical underpinnings. Good. I'd be glad to do so. Last time we started, Aaron, with you asking a question about interpreting the First Amendment and then Trevor followed up with general points about interpretation, originalism and so forth. And I responded by saying that to interpret the Constitution or various clauses within the Constitution, you're going to have to, first of all, start with the text, then with the structure of the document and then with the original understanding. And all of that has to take place within the context of the theory that stands behind the Constitution, which is outlined, sketched at least in the Declaration of Independence where they set forth their philosophy of government. And that theory is rooted in the theory of rights, the classical theory of rights that came from the common law and was captured in the form of natural rights theory by John Locke and others in the classical liberal tradition. So what I'm going to do is just sort of summarize that. You look at the state of nature theory, which is the tradition they were working in in the 16th, 17th and 18th centuries, and you see that the issue before them was how to create a government that was legitimate, with legitimate powers, and you do that by looking at the rights that we have to do so and to try to spell out from pure reason what our rights and obligations are vis-a-vis each other in the state of nature. And when you do that, you discover that our basic right is the right to be free, the right to be left alone, and accordingly the right to come together to bring government into being if we think that this is the thing to do. And all of those rights are reducible to property as Locke put it, lives, liberties and estates, such that a right violation is the taking of something that belongs free and clear to another. And so we start with the basic right to property, which is the right essentially against the whole world, good against the world to be left alone, to be free. And then the second right that arises from that is the whole world of contract rights, the general right, as we say, to enter into contracts with other willing parties, and then to create special rights and obligations by contract, and also to create special rights and obligations when we commit torts or crimes vis-a-vis someone else. And so through these two methods, tort and crime on one hand, contract and the other, we change the world of rights and obligations, bring new ones into being, and extinguish old ones. Now I can reduce this whole world, and this I didn't go into last time, this whole world of rights and obligations to three simple rules. They're so simple that you can understand them on the playground. The first rule is this, don't take what belongs to somebody else. That's the whole world of property. The second rule is equally simple, keep your promises. That's the whole world of contract. Now in applying those, there are very complex issues that you'll get into, intellectual property, what amounts to creation of a contract and so on and so forth. That's what the law deals with. And the third rule is if you fail in one or two, give back what you've wrongly taken or wrongly withheld. That's the whole world of remedies. So there you have in a nutshell three simple rules that capture the theory of rights. There is however a fourth rule. It's optional. It's this. Do some good as you work your way through life. I say it's optional because you don't have to do that. You don't have to rescue the drowning child. For example, you ought to do so, but you're not obligated to do so, nor does the child have a right to be rescued. Now how can I say that with perfect consistency? I can because those two terms as I just used them, ought and obligation, come from different domains of morality as the Oxford Jurisprud HLI Hart has put it. The idea of ought, as I have said, it comes from the theory of value, not the theory of rights. And of course, we have different values. Some people, I hope most people will, if they can do so at relatively low costs, rescue the drowning child, but you're not obligated to do so. And the reason the Anglo-American law has not imposed these so-called good Samaritan obligations is because it is rooted ultimately in liberty. And if you want to be virtuous, you are free to be virtuous. You will not be virtuous if it's compelled beneficence that you're engaged in. So here we have this fourth rule, which is optional. And that is indeed the good Samaritan issue is the welfare state writ small. And so that's why it's important to get clear on a local individualized basis what the rights and obligations that we have vis-à-vis each other so that when we come together to create government, we will know what it is that we have a power to bring into being and what we don't have a power to bring into being. Now in this state of nature, which has just summarized very briefly in the first part of the Declaration of Independence before Jefferson gets to government and to the political and legal order, in this state of nature, if everyone had perfect knowledge as to what his rights were and were of perfect good will such that if he accidentally or intentionally violated the rights of another, he made good on that and made his victim whole, then we wouldn't need to turn to government. But of course that's not the world we live in. As I said last time, the Hobbes put it very nicely, life in the state of nature is solitary, poor, nasty, brutish, and short. As Locke said, there are inconveniences. We don't all agree about what our rights are. We don't agree about what rights we have to secure our rights once they're violated. And so it behooves us to move out of the state of nature into the state of civil society. And last time I went through some of the problems of that, in particular the problems of consent. At the end of the day, as I said, you cannot overcome the objection that is posed by the anarchist, the person who wants to stay in the state of nature. You're going to force him out of the state of nature. Fortunately, there aren't too many people like that, but you're going to force him into the state of civil society. And in that connection, what I suggested is that there are three powers in descending order of legitimacy that we need to take note of. Because once you realize that government is a forced association, unlike other voluntary associations, corporations, partnerships, et cetera, then you have your presumptions and your burdens of proof right. The presumption is against doing things through government. The burden of proof is on those who want to do things through government to show why it must be done there, where it is done in violation of those who don't want it done through government, and must be dragged into this socialized arrangement, and not done in the private sector where it can be done voluntarily and hence in violation of the rights of no one. And so you want to think of a continuum running from anarchism at one end to totalitarianism at the other end, and each step along that continuum in which you move, you invite greater and greater illegitimacy. When you start down at the anarchism end and you have just, for example, the police power securing our rights, and then you move up to certain limited public goods like national defense or clean air, then you're pretty well within the realm of legitimacy that anarchists decide. But as you move further along, education in the public domain, health care in the public domain, and you get up to the area finally of North Korea, Cuba, et cetera, then each step along the way, you're dragging more and more people into the public sector who may not want to be in the public sector. I'd rather provide for my own health insurance rather than throw Obamacare, thank you. This is the kind of situation you're up against. But we can say a little bit more about legitimacy. And I did last time, I distinguished the police power, which is the power that each of us has in the state of nature to secure his rights and the main power we yield up to government to exercise on our behalf. I then went to the eminent domain power, which is more problematic because none of us had that in the state of nature, and it's justified only with reference to the fact that we, at least those in the original position, gave it to government, this power, and it's Pareto superior, as economists say. And the third power is the redistributive power, which of course is what most of governments are engaged in today. And here we have to distinguish material redistribution from regulatory redistribution. That part of regulatory redistribution, which is involved in flushing out the theory of rights, is perfectly legitimate. As I said, when you have to draw lines in the areas of nuisance or risk or remedies or enforcement, you need to distinguish where one person's right to the active enjoyment of his ends and the right of the quiet enjoyment of his neighbor begins. These are perfectly legitimate. The illegitimate redistributive regulations are those that involve taking from A and giving to B by prohibiting A from doing what he otherwise has the right to do or requiring him to do what he otherwise has the right not to do for the benefit of B. With respect to material redistribution, that is the taxation from A for the benefit of B, pure redistribution. And so these redistributive acts are utterly illegitimate, yet it's what most of government does today. Now then you look at the Constitution and you see this theory born out in the Constitution to a very large extent. I started yesterday by saying the preamble puts us right back in state of nature theory. The people create the government, they empower it. The government does not give the people their rights. They already have them. And then you look through the checks and balances and you see how Madison set it up so that the government would do only those things or for the most part those things that would be legitimate in if we were setting this forth in a state of nature and moving out of that into the state of civil society. We see those checks in the form of the division of powers between the federal and state government with most power left for the states. The separation of powers between the three branches, the unitary executive, the provision for an independent judiciary, the provision for periodic elections to fill the offices. And then I focused on the most important part of the Constitution, the doctrine of enumerated powers, the idea that government, the federal government, has only those powers that have been delegated to it by the people, are enumerated in the document, and are therefore limited as the 10th Amendment makes very clear. And then the 9th Amendment gives us the idea of we have both enumerated and unenumerated rights. The 9th and 10th Amendments draw this all together and recapitulate the philosophy of government that was first set forth in the declaration. And that's pretty much where we ended in the last session. So then structurally, this is pre-incorporation. So these rights, we have not incorporated these against the states. So the states at the time that the Constitution was being written had a lot more power over us than they do now. How does that mesh with this rights protection as the chief aim of the government when what you're basically saying is, we as the federal government sit above the states, but and our obligation is to protect your rights as citizens, because that's what makes us legitimate or roughly legitimate in the first place, but we're only limiting our own power. And the states can get away with all sorts of things that are rights violating, and we are going to stand back and let it happen. In addition to add to that too, the question of there being no, and I think the answer, these are the same thing, there being no bill of rights when they adjourned the Constitutional Convention, not only no bill of rights. On September 12th, 1787, George Mason proposed one and Elbridge Jerry seconded it, and it was unanimously voted down by the 10 states left in the convention. So they all agreed as state delegations, not every delegate, that there should be no bill of rights. So between, but both Aaron's question and my question, how do we have this rights protecting Constitution if there was no bill of rights originally? And it didn't apply to the states afterwards. Yeah, those are very good questions because they bring us to the complicated arrangements that were set out in the original position in 1787 relative to the states, and that was an unresolved issue and it would take another 80 or more years, the Civil War and the Civil War amendments to resolve them. Today we have a, in the post New Deal world, a very different conception of government. We think of government, or at least not here in the Cato Institute, but out there in the real world, there are lots of Americans who think of government as an institution designed to solve their problems, essentially personal problems like retirement, like healthcare, like daycare, and we could go on and on. And we looked to the federal government to solve those problems. That was a very different, that's a very different view from what the founding and many succeeding generations had in mind. They saw government as a necessary evil, not as an instrument to solve all their many personal problems. Not only that, they looked primarily when they looked to government at all, at the state governments, not at the federal government, and so most, the folk, we tend to forget that the founding generation, the founders and subsequent generations thought of themselves as Virginians or New Yorkers or South Carolinians or so forth, much more, one could say, than Americans, even though the Constitution had been ratified. And the reason for that is that such government as there was took place mostly at the state level, not at the federal government, indeed when the federal government moved from Philadelphia to Washington in 1800, it's papers over the previous 12 years could be put in 12 boxes. And so that's how small the government was at that time. Now, when you look at the issues that you raised about state government, it is absolutely true that the Bill of Rights applied only against the government that was created by the document to which it was appended, namely, the federal government, and that was held in the mayor of Baltimore decision of... Can you clarify exactly what that means to the people, like what it says it only applies to that? Oh yes, it applies only against the government that was created by the document to which it was appended, which is to say that you couldn't appeal to the Bill of Rights if your state, in most cases that is to say, there were some exception in the Constitution itself. But if the state was violating your rights, you really couldn't appeal to the Bill of Rights by way of relief because the court held in 1833 with respect to this theory that I just talked about that the Bill of Rights did not apply against the states. And in fact, we had no Bill of Rights during our first two years, the point you raised, Trevor, a moment ago. And does that mean that we had no rights vis-a-vis the federal government? No, it means that during those two years, we had lots of rights against the federal government in the sense that the federal government had only delegated enumerated and thus limited powers. And so by the logic of the situation, where there is no power, there is a right. And so that's the sense in which we had rights vis-a-vis the federal government, even though the Bill of Rights had not yet been written or ratified. And so to get back to this issue of the states, most of the police power, which is the main power that government has, that we yield up to it, the general police power is held by the states. That's why murder, rape, and robbery are prosecuted as state crimes almost always, with the exception being if a crime like that is committed in federal territory or against a federal official, that kind of thing. But the problem, now we get back to the crux of the matter, is that at the beginning, they made their Faustian bargain with slavery. The framers knew that it was inconsistent with their founding principles. Or at least some of them did. Most of them did. They hoped it would wither away in time. It did not. It took a civil war to end slavery. And so what you had was relatively free reign in the states, which is why, for example, you could have establishment churches as late as 1836 in the Commonwealth of Massachusetts. That was the last establishment church. You could because the Bill of Rights simply didn't apply against the states. And so when we get back to your question, Erin, about the theory of the matter, essentially the theory that I outlined in the last time and just summarize here, applied against the federal government. The states had lots of powers that they exercised that wouldn't be consistent with this theory in particular, slavery. But at the same time, the states had their own bills of rights, which were honored more or less, sometimes less. And so people looked to the states for their protection far more than to the federal government, which is why John Jay, the first Supreme Court Chief Justice, resigned shortly after being appointed because he was bored. There wasn't much to do. Would this be something analogous kind of to say the European Union now where there are some rights that you have against the European Union, but all the different countries in the European Union have rights that they guarantee to their people. So there's a division there. I mean, it's way more complex. But if you say you can go, if Germany is violating your rights, you go to the German constitution, the German Bill of Rights, maybe not the EU Bill of Rights, only if the EU is violating your rights. Well, Trevor, that would be the case after the passage of the 14th Amendment. Prior to that, it wouldn't be analogous to the EU situation. In fact, the EU situation is analogous in a number of respects, certainly not all by any stretch of the imagination. It's analogous in a number of respects to our federalism arrangement. But what we need to do now is to get into how the Civil War amendments fundamentally changed federalism. So I'll move to that. Please, sure. As I said, it took a Civil War to end slavery. It did not go quietly. And the passage of the Civil War amendments, which were the first time provided federal remedies against state violations of our rights. And in doing so, fundamentally changed federalism in the country. You could now go into federal court and bring an action against your own state if it was bridging the privileges or immunities of citizens of the United States, depriving you of life, liberty, or property without due process of law, or denying you the equal protection of the laws, which are the first three fonts of rights under section one of the 14th Amendment. And that was a very important change because it gave you another path to liberty that you didn't have before. If you couldn't get it at the state level, you could now go to the federal level. And so that's the analogy to the European Union. You can go to the various courts created under the EU to protect yourself against your nation's violation of your rights. The problem in Europe, of course, is that they have all these modern social and economic rights, by which I mean, essentially, welfare rights. And if you can't get your welfare rights at the local level, which oftentimes you can, you can go there to do it. And so they have, and one could say, the worst of both worlds in that sense from a classical liberal libertarian perspective. But the privileges or immunities that those terms or those two words and immunity is a right to some extent. And the privilege would be, for example, a right to trial by jury in a matter of $20 or more. But what did they mean? They meant some of those things. But when they wrote that in the 14th Amendment, what were they thinking they were doing? Well, this is a very important issue to discuss right after the end of the Civil War and the end of slavery. You had the Southern States erecting Jim Crow laws, as we've come to call them, virtually reducing the freed slaves to the situation they were in prior to the Civil War. And so Congress passed the Civil Rights Act of 1866. And in that, they promised the freed slaves the same rights that whites would enjoy with respect to property, contract, protection for enforcement, and the kinds of rights that were known at common law for white people. There was a problem there, however. It was uncertain whether Congress, at that point in time, had the power to do that under its enumerated powers. And so two years later, the 39th Congress passed and the states ratified the 14th Amendment, which in its third iteration provided rights that were self-executing. In other words, the first two versions afforded people rights that could be established in future by Congress. Well, if they can be established in future by Congress, they can also be removed in future by Congress. Here, in this third iteration, they established rights in the document itself so that you had them as constitutional rights, you didn't have to depend upon Congress finding them. Now, the privileges or amenities clause, you read the debates in the 39th Congress and you see that they hark back to Blackstone, referring to our natural liberties. They hark back to the common law and to our natural rights. They hark back to Bushrod, Washington's decision in the 1823 case of Corfield v. Coriel, in which he spelled out in substantial detail the rights that were meant to be protected under the privileges and amenities clause of Article IV of the original Constitution. And that is all discussed in great detail in the records of the 39th Congress and in the records of the state ratification conventions leading up to the ratification of the 14th Amendment. Unfortunately, five years after the amendment was ratified, in the infamous Slaughterhouse cases, which came out of a fetid stew of corruption in the city of New Orleans, things probably haven't changed all that much. I'm reminded of the story of Huey Long, I think it was, who wanted to be buried in Louisiana when he died so that he could remain politically active. The- Has there ever been a Supreme Court case or set of cases with a name more evocative of their effect in the Slaughterhouse cases? The Slaughterhouse case. And also the fetid pool of corruption because both described the awful of animals- There were 200 some cases involved and they were reduced to six by the time it got to the Supreme Court. And the court in a bitterly divided 5-4 decision essentially eviscerated the privileges or immunities clause from the 14th Amendment. And essentially said that the surely those who wrote and ratified the amendment did not want to change the federalism arrangements that we had enjoyed since the founding. That's exactly what they intended to do was change those federalism arrangements. That was the whole point of the 14th Amendment. The court just got it so wrong and the majority made it very, excuse me, the minority, the dissent, made it very clear how wrong they were. One of the questions I ask when we hear about the court or courts getting something this wrong is do we have a sense of the motives behind getting it that wrong? Like was this a call it an honest mistake? Like they thought that they were making the correct interpretation of this based on some principle that was ultimately wrong. Or was this disingenuous, like we're going to jump through hoops in order to say prop up an interest that we want to support? Well, it's hard to discern the motives of any political actors, including those on the judiciary who are not strictly speaking political actors. And even though they are compelled to write their opinions, you still have to work hard to try to discern the motives. I would guess that the principle factor at play here was that people after a period of time get set in their ways, judges no less than anyone else. And they had all their lives at their advanced ages come to think of our federalism in a certain way and just were not prepared to understand that this was a new order by design. And so that's I think as far as I'd want to go in trying to discern their motivation. But what followed was with the evisceration of the privileges or amenities clause, which was meant to be the principle font of substantive rights under the Constitution, under the 14th Amendment rather, the court would try to decide cases thereafter under the less substantive due process and the even less substantive equal protection clauses. And it did a pretty good job of it over the next several decades, not completely. I mean, there were errors all along the way, plus EV Ferguson being a cardinal example of that. They separate but equal case in 1896. But as we get into the 20th century and the early decades there, the court did a fairly good job of enforcing or securing our rights through the due process clause, mainly not entirely, as I said, but pretty good as against the juggernaut of progressivism. And so now we get to the great watershed in constitutional history, the progressive era. I want to go back and get to that, but I want to approach a different way. I want to make sure that our listeners are aware. So we can talk about these in sort of two narratives that you're one is the rights narrative. This is a lot of people don't conceptually clarify that you're talking about rights people have against the government or didn't have after Slaughterhouse against the state governments or the federal government. But there's also a powers narrative, which is about the powers allowed to the Congress. And we mentioned that briefly when we said they didn't think that they had the power to pass the Civil Rights Act of 1866, for example, because it wasn't one of these 18 enumerated powers that they could do this. And so how does the powers narrative come in? We had the rights narrative in the 1870s. How does the powers narrative come in to start changing the way the powers of the federal government work? Well, they come in largely at the time of the new deal. The powers narrative at the state level, given that the Privilege of their Minerals Clause is no longer operative, is still fairly large and nowhere more so than in the South in the form of Jim Crow and all the separation of the races law that came about under the police power. And so I'm gonna hold off on the powers part until we get to 1937 because that's where it really comes to a head. And then we can spell it out in more particularity there. We did have a number of examples prior to that. The antitrust law. Well, they struck down the income tax, for example. Yes, that's right. Or Henry Dakinhart as a child, everyone. All these kinds of cases, but we've got the antitrust at the end of the 19th century. We've got the EC Night case. We've got the train cases in 1914. I'm drawing a blank on those in any event. The important point to note as we move into modernity is the rise of progressivism at the end of the 19th century and the early decades of the 20th century because here we have a fundamental shift in the climate of ideas and it's so important to recognize the force of ideas. That's why Cato exists is to attend to ideas which are always in the background for political changes down the road. The progressives were essentially social engineers. They rejected the vision of the founders. The founders saw government as a necessary evil along the lines that I have been talking about all this time. The progressive saw government as an engine of good, an instrument through which to solve all kinds of social and economic problems, the kinds of problems that had arisen under industrialization and urbanization following the Civil War. They were looking to Europe. Sound familiar today? They were looking to Europe and to, for example, Bismarck's social security scheme in Germany. They were looking to British utilitarianism which in ethics had replaced natural rights theory. The idea was that law, policy, judgment, et cetera, were to be justified not with reference to whether they secured our rights but rather with reference to whether they provided the greatest good for the greatest number. So notice, this is a justificatory scheme that lends itself particularly to statutory law, to legislation, to law as policy, not law as principle, law in which a judge finds the law that decides a case that has been brought before him by one person against another person or by one person against the government. Here you've got legislators sitting in legislative bodies deciding what shall we do by way of providing retirement security, by way of providing health care, day care, and on and on. In other words, utilitarianism, the greatest good for the greatest government, gets you into the policy realm and out of the realm strictly of principle rooted in the theory of rights. Now, the only thing that stood a thwart this legislative juggernaut was of course that pesky constitution and the willingness of courts to enforce it. And they did a pretty good job, as I said a moment ago, during the early decades of the 20th century as in a case such as Lochner v. New York. But that's a, the states have a lot of powers that the federal government doesn't have. So state constitution is saying, because that deals with a health and work-based regulation for bakers in New York. Now, whether or not that the state is allowed to pass that under the powers that the state has versus whether or not it violates the rights of someone under the 40, I just wanna make sure our listeners are clear what that means. And then the second question we get to in the 30s is whether or not the federal government is allowed to pass laws like that. So, I've just about getting into the Lochner v. New York before I got sidetracked, Trevor. I just wanna make sure everyone's following. You go so quickly, you gotta make sure everyone's on the same page. Yes, the states have substantial powers under the police power, but they don't have the power to violate the rights that people already have. So the question becomes, what are the rights that people have, which is why I spent so much time in that first session and in summary today, addressing the question, what our rights are, because this will come up repeatedly and we will see when we get to the current state of affairs how important that question is. But take the case of Lochner v. New York, the 1905 decision that arose out of a challenge to a New York state statute that limited the hours that bakers might work. This was a sweetheart suit that was brought by Bakery in Utica, New York with workers who had recently arrived in this country and didn't mind working those long hours. Indeed, they slept in the bakery while the bread was being baked. They wanted to get the money to bring their families over and so on and so forth. So the case makes its way to the Supreme Court and the court says that the police power rationale, health and safety, just simply won't wash. It just isn't a credible rationale. Whether you work 12 hours or 14 hours has really nothing to do with health and safety and indeed the bakers in this case had no objection to work in the longer hours. And so it is from this case that we get and the court decided in favor of the bakery and this law was found unconstitutional. Now modern con law is taught as this was one of the worst decisions the Supreme Court ever handed down. It was a paradigmatic example of judicial activism at its worst, nothing could be further from the truth as I lecture this on this case before students I say, let me disabuse you of your miseducation with respect to this decision. From it came the descent of the sainted Oliver Wendell Holmes, the great progressive from Cambridge, Massachusetts who said that the Constitution does not establish system of economics, it is indifferent as to whether way of socialism or laissez-faire. Well, nothing could be further from the truth with respect to our Constitution. Our Constitution protects property, it protects contract, those are the very foundations of the free society. You will get socialism only if you rent asunder those rights which of course the court in succeeding years has done a pretty good job of doing. In any event, he then went on to say that it does not establish Herbert Spencer's social statics and it showed a pure legal positivist view of the Constitution that the people have a right to go to hell in a handbasket if they want to and I will help them, he said. Well, the people do not have the right to pass any law that they wish, this is why you have a Constitution and so if a Constitution is going to become an empty vessel to be filled by transient majorities, it no longer serves one of the principal functions of a Constitution which is to limit the government that is created through it and so now we have set up here the two fundamentally different visions of the Constitution in this 1905 decision. As I said, thereafter the court stood its ground in a number of cases, but by no means all of them. For example, I'll just give you two illustrations in the decision of 1926, a city of Euclid, the amber reality of your city of Euclid which upheld the zoning regulation which reduced the value of the plaintiff's property by 75% and the court upheld that in an opinion written by Justice Oliver Wendell Holmes and speaking of Holmes, we have another case a year later, Buck V. Bell, which illustrates how it is that the progressives were not interested simply in their social engineering in creating a world of vast economic regulations, they were looking to regulations of personal affairs as well. In this case, it was a challenge to a Virginia statute that authorized the sterilization of people thought not to be of sufficient intelligence and it was part of the modern eugenics movement, that bogus science that was at play at the time when of course we had settled science to invoke a term that is used today in the environmental context. Here you had the settled science of eugenics and this idea of sterilization to improve the human race because how are you going to improve the genetic quality of the human race if you let those people procreate? And so it was championed by such luminaries of the day as the president of Planned Parenthood, the president of Stanford University and their ilk. The court came down on the side of Virginia, it upheld the statute and the opinion in no more than five paragraphs ended with the ringing phrase for which Holmes is rightly noted, three generations of imbeciles are enough. There followed some 70,000 sterilizations in this country. So you see what we have here is the early stages by this time fairly advanced of doing things through government to bring about a better world or so it is thought. It is the kind of social engineering that F.A. Hayek would go on to criticize a few years later with his theory of hubris, that we have this hubris to believe that we can make the world better through all this kind of central planning and the evidence goes entirely the other way. So now if in say 1910, five years after Wagner, if the Congress, the US Congress tried to pass a bakery, a baker, a national baker regulation of work hours law, aside from the rights violating element of this, did Congress feel it had that power to do that in 1910? Well, in fact, we did have ours regulation with respect to women and- And those were state laws. Did Congress think it had the power? Yeah, Congress generally did not during this period legislate, this was mostly state action. The Congress got into the game essentially during the new deal. And that's where things really came to a head and that's where we had the Constitution by 1937, 1938 standing on its head. So let me go into that history there. During the first four years of the Roosevelt, the Franklin Roosevelt administration, Roosevelt got through Congress a number of statutes that the court found to be unconstitutional, mostly because there was no power under the Constitution to enact these statutes or in some cases they violated rights, but mostly it was with reference to the powers that were wanting to pass this legislation. During this period, there was a great debate in the administration as to whether the problem was with those nine old men on the court, they just didn't get it, or the problem was with the Constitution. What we really needed to do was amend the Constitution. Well, that debate was won by the people who saw the problem with the nine old men and it was won by Roosevelt's unveiling after the landslide election of 1936. In January of 37, his threat to pack the court with six new members, the infamous court packing scheme. There was an uproar in the country, notwithstanding the fact that after the election, the House was four to one Democrat, not even the Congress would go along with that scheme. Nevertheless, the court got the message, there was the famous switch in time that saved nine and it began rewriting the Constitution without benefit of constitutional amendment and it did it in three main steps. In 1937, it eviscerated the doctrine of enumerated powers, the very centerpiece of the Constitution. In 1938, it gave us a bifurcated theory of judicial review and a bifurcated theory of rights attendant to that. And in 1943, it jettisoned the non-delegation doctrine. Now, I'll be glad to go through those a little more slowly if you'd like, but those are the three main ways that we got to the position that we're in today. So in 37, the doctrine of enumerated powers was sort of what happened there? Well, in a pair of cases, in 1937, the court revisited the so-called general welfare clause and the commerce clause and changed them from largely shields against overweening power into swords of power. In the case of the general welfare clause, which is a clause within Congress's first power, the taxing power, you had in 1936, a case called United States the Butler, which was a challenge to the Agricultural Adjustment Act, and it was found unconstitutional. But in the course of so finding, the court revisited a debate that had taken place early in our history between Hamilton on one side and Madison, Jefferson, and virtually everybody else on the other side. Hamilton stood for the idea that there was an independent power in Congress to tax and spend for the general welfare. That couldn't be right, said Madison and the others, because if that were the case, then any time that Congress wanted to tax and spend for the general, tax and spend, since money can accomplish anything and Congress wanted to do something that was not authorized to it because no power was given to it with which to violate, with which to pursue this end, it could simply say that it was taxing and spending for the general welfare and make an end run around the doctrine of enumerated powers. Indeed, as was said in 1828 by Congressmen from South Carolina, whose name escapes me at the moment, what was the point of having enumerated Congress's other powers if it could do anything it wanted under this sole power? And he was absolutely right. Nevertheless, in the Butler decision of 1937, 36, in dicta, that's to say not the holding of the case but peripheral language, the court came down on Hamilton's side. And then in 37, in the Halvering case, the Social Security case, the court elevated that dicta to the holding of the case. And it added that while Congress can tax and spend for the general welfare, the word general limits what it can do toward that end. But the court added it will not police that, it will leave it to Congress to police itself as to whether it was indeed spending for the general welfare, the Congress that was spending with ever greater particularity. And we know how that went. And so the floodgates were now open to the modern redistributive state, the material redistribution that I spoke about earlier. And then you mentioned two cases in 37. There was another one. Yes, in 37, the Commerce Clause case was National Labor Relations Board, and the Johnson-Lachlan Steel. This involved the Commerce Clause. And here, as I said in the last session, the Commerce Clause was written in the context of the Articles of Confederation under which states had erected tariffs and other protections measures for the benefit of local merchants and manufacturers to protect them from competition from out-of-state interests. And it was leading to the breakdown of the free flow of goods and services among the states. So the Framers gave Congress the power to regulate or make regular commerce among the states, as indeed was decided in the first grade Commerce Clause case, Gibbons v. Ogden, which found the monopoly grant that New York State had given for the plying of the trade between the ferrying trade between New York and New Jersey, which kept out competitors. And so it was found unconstitutional. Well, in the Johnson-Lachlan case, the court came down saying that Congress had the power to regulate anything that affected interstate commerce. Well, there's nothing that does not at some level affect interstate commerce. So in effect, the Congress had the power to regulate anything and everything under the sun for any reason possible. And indeed, it reached its zenith nadir, you might say, in the famous Wicked v. Philburn case of 1942, where a farmer who grew wheat on his farm in excess of the amount allowed under the Revived Agricultural Adjustment Act, wheat which never left the farm was found to be in violation of Congress' power to enact that statute under its power to regulate interstate commerce. Again, this was wheat that never left the farm. The theory being that this is wheat that he otherwise would have bought on the market and therefore his growing it himself affected interstate commerce. I mean, this is- It's pretty much nothing left of that. This is something that would be left out of Econ 101 and yet there it is as the bedrock for the limit on the commerce power. And so now the floodgates were open to the modern regulatory state of the sort that I talked about earlier. So we've got the floodgates open to the redistributive state and the regulatory state but you can still raise your rights against this. So to address that little problem, a year later in the infamous, if you will, Caroline Prottick's case which involved a challenge by one part of the milk industry against a statute that disabled it vis-a-vis competition from another part of the milk industry. It was a classic case of public choice economics at work here. This statute in famous footnote four, excuse me, this decision in famous footnote four distinguished two kinds of rights, fundamental and non-fundamental and two levels of judicial review. If a law implicated a fundamental right like speech voting later on certain personal liberties, then the government would have to have a compelling interest and the means it selected would have to be narrowly tailored. If by contrast, in all likelihood, that statute would be found unconstitutional. If by contrast, a law implicated a non-fundamental right like rights to property, contract, the rights we exercise in ordinary commercial exchanges, there the court would apply the so-called rational basis test. That is to say, if there was some reason, some conceivable reason for the statute, that's good enough. Then the rational basis test is no test at all. And so legislation in the economic arena sailed right through there after indeed for the next 58 years, not a single economic regulation was found to be unconstitutional as exceeding Congress's powers. And so what you have now is in this Caroline products decision, a theory of judicial methodology that is nowhere to be found in the Constitution. It was written from whole cloth to make the world safe for the programs from the New Deal and the programs, federal, state and local started sailing right through with no interference from the court. It was essentially a period of judicial deference for a good number of years that followed these two decisions. I've got one more decision to make. Let me ask a quick question about that one because one of the things that struck me about the Caroline products case and the two levels of scrutiny, and it struck me when I learned about it in law school and had not thought deeply about jurisprudential issues at the time, but we would get into these conversations about whether rational basis made sense, whether you could separate out and say there were certain rights that only were deserving of rational basis versus strict scrutiny. But even the notion of strict scrutiny seems odd in relation to the Constitution because we've got these bullet rights that say Congress shall make no law or here is Congress' power and no law doesn't say no law except if it has a compelling interest or except if it's narrowly tailored, it says no law. So how do we even get to strict scrutiny let alone rational basis test? We do it by judicial invention if I may put it as starkly and as truthfully as I can. And these two levels of scrutiny is of course today been surpassed. We now have in many cases three levels of scrutiny. We have strict scrutiny, mid-level scrutiny and the rational basis test. Thus, for example, when we're dealing with discrimination involving African-Americans, we apply strict scrutiny with respect to sex and discrimination against women. We use mid-level scrutiny. What's the rational for that? It escapes me. But then it even gets worse. You look at a case like the Turner Broadcasting Decision of 1964, excuse me, 94, which was a challenge to the Muscarrey provisions of the Cable Act of 1992. And you see Justice Kennedy distinguishing four levels of scrutiny with respect to strict scrutiny for newspapers. Then you have broadcast where you have a lesser level but still a high level of scrutiny. Actually, you know, it's the other, I can't remember. Well broadcast because of the Pacifica case. So because the broadcast are almost like over the air. But then you've got cable different from broadcast. And then you've got newspapers. Exactly. Yeah, okay. This is just hocus pocus. I mean, it is a theory of method, judicial methodology that enables you to get the result that you want. Especially if the judges and justices have personal rankings of rights that matter to them, which may not include opening a business, for example, but they really like speaking because that's pretty much what they do for a living. So it's not coincidental, it seems, that justices tend to protect things that they do more often and they like doing more than they protect things like opening a business. Yes. In fact, it came up in the Lawrence v. Texas case, what was the challenge to the Texas statute that criminalized homosexual sodomy. And there in the run up to the court, the question was whether the right to engage in homosexual sodomy would be found as a fundamental right, in which case the court would apply strict scrutiny, or whether it would be decided on the scope of the police power of the state, in which case the rational basis test would be applied. And this is the kind of, kind of, hocus pocus. Yeah, hocus pocus. It's a very outcome to turn to. Oh, absolutely. And the truth of the matter is rights are rights and all scrutiny should be strict. Basically, if you're dealing with a federal case, the methodology should be three steps. First, is there a power of the federal government to do what it has done? If there isn't, the case ends right there. If there is, then the question becomes, are the means that it is chosen necessary and proper? Necessary in the sense that without means of this kind, you would not be able to accomplish that end, which is authorized to the government. Proper in the sense that it does it violate, for example, principles of federalism. Is this properly the realm of the states rather than of the federal government? And proper also in the sense, does it violate rights? And so we come to the third category, are there rights enumerated or unenumerated that stand in the way of doing this this way? In other words, here we get into what lawyers speak of as facial challenges versus as applied challenges and so forth. So this is the kind of methodology that should be applied with respect to the federal government in all such cases. So we're almost out of time, but we gotta get to the third one, yes. This is not a delegation. The third great loss in 1943 NBC decision was the non-delegation doctrine, which stems from the very first word of the Constitution, all legislative power here in Greenwich have been vested in a Congress. Now, you look at what was going on after the 37, 38 decisions, and you see a surfeit of legislation, federal, state, and local pouring through. Well, it got to the point where Congress couldn't manage all of this and write across every T and dot every I, and so it began delegating ever more of its legislative power to the executive branches, some 450 of which exist today here in Washington, and that's where the law was being made in the form of rules, regulations, guidance, and so forth. Think of all the Obamacare rules that have come out. They've come out from the administration, not from Congress. Congress sets these broad laws and then all the law really gets made by unelected, non-responsible bureaucrats with civil service protections, faceless bureaucrats. This is where most of our law gets written today. Now, there we have now the three steps that gave us the foundations for the modern, for modern constitutional law, not to be confused with the Constitution. In the 1950s, after this period of judicial restraint, we started to see the Warren and Berger courts getting more active in finding rights that had never been found before, some of which were long overdue as in Brown v. Board of Education, others of which were made out of whole cloth. That created a conservative backlash by people like Alexander Bickel at Yale, Robert Bork, Antonin Scalia, and others who did not object to the demise of the doctrine of enumerated powers because they figured that that was water over the dam and so they made their peace with that. The only difference between them, the conservatives and the liberals was on the right side, whereas the conservatives, for fear of judicial activism as they saw it, called on the court to enforce only those rights that were fairly expressly in the Constitution, thus ignoring the Ninth Amendment and its protection of natural rights, thus ignoring the Privilege's Ormirides Clause, and so they stood on that side, on the other side were the liberals who called on the court to enforce rights episodically, that is to say ignoring rights often that were plainly there, like property or contract, or at least diminishing those rights, and then finding rights out of whole cloth that they made up as they went along. And so you had these two schools of thought, both of which were wrong, and that opened the door for a third school of thought that I was in the forefront of back in the mid-70s, Bernie Sagan out at the University of San Diego, Richard Epstein would be moving into the constitutional area shortly after he did his work in torts, Randy Barnett later on in the late 80s would come into the constitutional law, and that opened the door for a third school, the classical liberal, libertarian, Madisonian school of thought, which we have developed years ago here at the Cato Institute and I'm happy to say has been subscribed to by a large number of conservatives who previously were judicial restraint people in this narrow sense that I just said, not judicial activism, I'm excuse me, not judicial engagement people. Today, the court is much more engaged even to the point that liberals are condemning the court for being an activist court, when in fact, far more often than not, it is not active enough, but it is at least, it has revived the doctrine of enumerated powers, albeit only on the edges, and it has found in some cases that there are enumerated rights to be protected as well, but the great problem on the court is that it still has not come to grips with the theory of rights that stands behind the Constitution, which is why I spent so much of my time on the philosophical foundation behind the Constitution because it's there that you have to focus your attention to grasp the full theory in order to make sense of the kinds of cases that come before the court in a case like Troxel v. Granville, for example. Do we have time to say something about that? Sure, yes, yeah. Because that is a case that brings it all to the fore. This was a 2000 challenge to a Washington state statute called the Grandparent Visitation Act, which authorize grandparents and others to go into state court and get an order to allow them to visit the children of parents who may not have wanted those people to visit their children. This would come up in broken families and other contexts like that. Now, this is a statute that perplexed conservatives because on the one hand, their family values folks and they believe in parental control of access to children, among many other things, but they're also, at least in the jurisprudential side, deference to the political branches people, especially to the state legislatures. And this was a statute that had come from the state legislature of Washington state. And so by the time it got up to the Supreme Court, the statute had been found unconstitutional on the due process clause of the 14th Amendment grounds. And the Supreme Court found it to be unconstitutional as well. The US Supreme Court, but Justice Scalia dissented. And in his dissent, he said that the right to fit parents to control access to their children is one of the inalienable rights that the Declaration of Independence speaks of and one of the unenumerated rights the Ninth Amendment refers to. But he added, the Ninth Amendment does not authorize him to say what those rights are, much less to enforce them. Well, he's got a problem there because he has already said that these are constitutional rights by virtue of being referred to by the Ninth Amendment. And it therefore falls to the court to protect those against incursions by either the federal or the state governments. Well, in this case, the state had intruded on them. And he said it was not up to him to say what those rights are, even though he had just said what they are, it was up to the states. Well, the state had spoken. And it had said that there are not these rights. So you can't have it both ways. Either this is a right that is a constitutional right or it isn't. And so this is the problem that you get into because the court has, through its Glucksburg decision of 1997, I think. I can't remember exactly, that was a challenge to a, was that Washington state again? Death with dignity statue. And in that, Chief Justice Rehnquist faced the problem of discerning rights under our due process jurisprudence, which comes about because of the demise of Slaughterhouse. What we have to do, he said, is first of all, recognize a right that is deeply rooted in the nation's history and carefully defined. Well, he added backwards because you can't determine if it's deeply rooted unless you first carefully defined it. But let's do that. And then the question is, is it deeply rooted in the nation's history? The problem there is that if the right claimed is deeply rooted in the nation's history, it's probably already protected. And if it isn't, then it will not be by definition deeply rooted. And so what you have here is not a theory of rights. What you have is a theory of decision making the tail, as it were, wagging the dog. You have to get clear about your theory of rights first. And when you do, you will see that in cases like, let's say Lawrence v. Texas, what you have is a state passing a statute criminalizing homosexual sodomy. And you have to ask yourself, is this legitimate under the state's police power the main purpose of which is to secure our rights? Well, to secure our rights, you have to know what rights there are to be secured. And so you have to ask yourself, what rights are being secured by this statute criminalizing homosexual sodomy? In other words, whose rights are Mr. Lawrence and his partner violating by engaging in what they're engaging in in the privacy of their own home? And of course, the state of Texas was hard-pressed to say what rights were being protected by this statute. And so the statute was found to be unconstitutional. That's the methodology that you want to use with respect, for example, to state police power. What is being served by this statute? Now, let me just add in light of the fact that there may be some anarchists listening to this podcast that I'm not a fanatic on that point. That is to say, there are some statutes that I cannot justify with reference to securing rights beyond statutes aimed at public goods narrowly defined as I did in the last session. For example, a statute that prohibits wanton cruelty to animals. I would uphold a statute like that, not in the name of the rights of animals, not in the names of rights of sensitive people to live in a society in which this isn't done, but just simply because this, there are not, you cannot answer every question of ethics. Aristotle said that. If you get 95%, that's pretty good. Basically, you're on a slippery slope though when you're here and you have to be very careful that you don't slide all the way down that slope and that's where judgment comes in and there is no escaping at the end of the day that there are lots of cases where judgment has to rule where you can't really discern any pure principle that is knocked down, slammed, dunk, justifiable by pure reason. And this is the world in which we live and we have to, as we say here in Washington, life in Washington requires a certain tolerance for ambiguity, so too in the law. Thank you for listening. If you enjoyed today's show, please take a moment to rate us on iTunes. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www.libertarianism.org.