 Welcome to Free Thoughts, a podcast project of the Cato Institute's Libertarianism.org. Free Thoughts is a show about libertarianism and the ideas that influence it. I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Sitting in for Aaron Powell is Jason Kuznicki, a research fellow at the Cato Institute and the editor of Cato Unbound. Our guest today is Tim Sandofer. Tim is the principal attorney at the Pacific Legal Foundation and the author of three Cato books. The three Cato books being The Cornerstone of Liberty, Property Rights in the 21st Century, The Right to Earn a Living and his newest book, The Conscience of the Constitution, The Declaration of Independence and the Right to Liberty. Welcome to Free Thoughts, Tim. Thanks for having me. So, Tim, for the first question I think is, what is the conscience of the Constitution? The conscience of the Constitution is the classical liberal political philosophy articulated in the Declaration of Independence. It's the principle that people are basically free and use that freedom to create a government in order to protect their freedom, but that when government is destructive to their rights, they have the right to alter that government. And the reason that that's important is that that reversed in many ways the political philosophy underlying monarchies and today's dictatorships, which holds that individuals are not basically free, that government creates their freedom and that the presumption is against individual freedom. So, I think the conscience of the Constitution is the principle that we are all born with equal freedom. Now, if I could just be a bit of a devil's advocate here. It's sometimes said that, well, the Constitution is operative law in the United States. The Declaration is not. So, if you're arguing in front of the Supreme Court, it's great to cite the Constitution. You want to be able to do that in defense of your argument. But if you cite the Declaration of Independence, they're not going to be on board with that and they're not going to wait it at all in the same way. They might say, well, yeah, that's nice, but that's not how we decide things here. What would you say to that? Well, it is true that it would normally be bad advice to tell a lawyer to cite the Declaration in an argument in the Supreme Court. But I think that's as a result of generations of bad jurisprudence and bad political philosophy. However, the Declaration has played a role in court decisions very recently. In fact, a good example is, Troxel v. Granville was a case in 2000 involving the law that said that parents had to allow visitation rights to grandparents, even if they didn't want to. So, if you and your wife broke up and you had the kids and her parents wanted to visit the kids, you couldn't stop them. And the Supreme Court struck that down as unconstitutional. Justice Thomas, with the majority holding it unconstitutional, and Justice Scalia dissenting saying he thought it was constitutional, and Scalia says, although I think that one has a natural right to direct the upbringing of one's children, that isn't protected by the Constitution. And the argument was whether that is part of the liberty protected under the Declaration or a more recent example in Gruder v. Bollinger, the big race preferences case, Justice Thomas wrote this wonderful dissenting opinion saying he thought that it's unconstitutional for the government to treat people differently based on race. And his dissenting opinion consists of like, I think it's five parts, six parts actually. Part one, part two, part three, part four, part five, and then there's two or three sentences at the end separated by three asterisks. And at the top it says, Justice Thomas wrote a dissent with which Justice Scalia agrees as to parts one, two, three, four, and five. He didn't join the last two sentences, and the reason why is because those are the sentences in which Thomas quotes from the Declaration of Independence. So those are just some minor examples, but there's a more recent, another example in which I can't remember the name of the case off the top of my head, but the dissenting opinion by Justice Stevens says, you know, when we talk about the liberty in the 14th Amendment, I would think that it means not just the rights that are specified in the Constitution, but also the liberty that is referred to in the Declaration of Independence. So I do think it plays a role, but more importantly, first of all, it is part of our law. It appears in the United States Code. It's in Volume 1, Chapter 1 of the Statutes at Large. Do we date our political institutions from 1776 because of it? I mean, it has at least some legal role to play, and I think that the other role that it has that's been neglected is it should play a role in setting the framework for understanding the Constitution. So to walk us back a bit and fill anyone in who maybe forgets eighth grade civics class, the Declaration of Independence, how would you describe it as a legal and philosophical document, and what theory is it based on? Well, as a legal document, the Declaration of Independence is a constitution of the United States. What I mean by that is it constitutes us as a people. It declares that we are no longer Englishmen. A lot of people like to say that the American Founding Fathers were asserting the rights of Englishmen against the British Crown. Well, they had done that, and what they did on July 4th, 1776, was they said, we're no longer Englishmen. These are now the rights of all mankind that we're referring to. And so as a constitutional document, it declares the United States separate from Great Britain and creates the United States as a corporate entity, and it creates them unitedly. This is an important point. It does not say that the states are independent of one another. It says these United colonies are free and independent states, and they are independent unitedly. So it creates the American nation as a legal document. It's a philosophical document. It's a statement of plain vanilla Lockean principles drawn from the Second Treatise on Civil Government by John Locke. And late in life, Jefferson was approached about this. Somebody said, well, you're wording is like word for word from Locke. Did you just plagiarize John Locke? And Jefferson said, it wasn't my job to come up with any new principles. It was my job to articulate the principles that everybody believed at that time. And that's what I did. And he says I didn't turn to any books. I didn't have to because we all agreed on these principles. And that's what I came up with. And then going forward to the Constitution, well, actually, let's go forward to the sort of beginning late part of the 18th century for jurisprudence. We had a guy named Blackstone become very central to the law. And in the book, you talk about how that is a little bit misleading. So we have decoration in the Constitution, and then a lot of formulation of American law has a lot of references to Blackstone. And we still do it today. So who was Blackstone and what was wrong with that in light of the thesis that you're talking about here? William Blackstone was an English judge and legal scholar and professor of law at Oxford. And in the 1760s, he published a series of four books called The Commentaries on the Common Law. And in these books, he just tried to express what English law was in general on various topics. And he wrote in a very clear and readable style. It's even very, it's still readable today, very, very accessible. And as a result, it became very popular, especially in the United States. And it became kind of the book to go to for lawyers who were studying. Well, the problem with that is that Blackstone disagreed with Locke on certain important philosophical principles. By name, he rejects Locke's views. And Blackstone believed that government is inherently sovereign. It has certain basic powers. And he called this supreme, irresistible, absolute authority to do everything that is not naturally impossible. He said, this power is somewhere in every government, somewhere. And what Jefferson and others had a problem with was they said, well, no, the Declaration of Independence says we have individual rights and government's sovereignty is limited by those individual rights. It has no authority to intrude on those rights. And so the founders had a complex relationship with Blackstone. He was becoming more popular among the young law students. But Jefferson was really worried about this. And his last letter to James Madison, Jefferson says, you know, the younger, the kids today are reading Blackstone. That's a real problem. James Wilson from the Constitution Convention, he said the same thing. So they rejected this idea of absolute unlimited sovereignty and held to the idea that government is sovereign only within the boundaries of individual rights. So, well, Blackstone's idea of a omni sovereign state, a state that enjoys all the powers of sovereignty, is maybe not so popular today. I would say there is another view of sovereignty, which is shared by many of the folks on the left, which is that democratic majorities enjoy more or less that type of sovereignty. And I'd like to ask you about that, because my sense is that one of the key themes of your book is this tension between democratic sovereignty as a theory and the idea that individuals have inalienable rights that even majorities will do wrongly if they transgress on. And I'd like to ask you to illuminate on that a little bit. Yeah, so what happened with Blackstone was that he was adopted by certain thinkers in the United States and endorsed, especially by Southern defenders of slavery. And they said, okay, the powers, the absolute power that Blackstone speaks of used to belong to parliament. But when we declared independence from Great Britain, those powers were inherited by the state governments. And so now the state governments have supreme irresistible absolute authority to do everything that's not naturally impossible. And they may have written individual rights into their state constitutions, but those are just privileges that the government can override if it wants to. And of course, some of that authority was given away to the federal government at the Constitutional Convention, but for the most part, states are sovereign and have this supreme irresistible power. So it's a democracy version of William Blackstone's view of sovereignty. And that became very popular in the years leading up to the Civil War. It's interesting, there's some of these really amazing court decisions from Supreme Courts of States during the 1850s. I talk about one in particular in the book called Sharpless versus Mayor of Philadelphia, where the Pennsylvania Supreme Court endorsed this Blackstonian vision of absolute government authority. But there was another decision just a few years before that called Billings versus Hall in California in which rejected that view and said no, state governments do have a lot of power, but they don't have the power to intrude on natural rights even if their constitutions don't provide those kinds of protections, the law will still protect those rights. And that tension between those two viewpoints I think lays the foundation for what ultimately became the division of the Civil War. So that's a perfect getting up to the Civil War because you have a lot of interesting things to say about the Civil War in the book. And libertarians often have some pretty big conversations about the Civil War. You have a view of the Civil War based on certain thinkers. Frederick Douglass I know is one that you bring up that says that slavery was a warrant to the Constitution at the beginning, even despite the concessions of it. Would you elaborate a little bit on that? Yeah, so in their view slavery was something like you might say it was a social institution. It wasn't created by the government. In fact, Southern political leaders were quite emphatic that slavery had not been created by positive law. And so it was more like you might say the institution of polygamy or not in a moral sense, but what I mean is that that was a social institution and the political state then came into being with that institution already in place. And so to them, they thought that the Constitution made accommodations for this existing institution but that in the long run, the Constitution's protections were ultimately incompatible with slavery. Now some of these anti-slavery thinkers, particularly Lysander Spooner and Joel Tiffany, they said slavery is just already unconstitutional and their reasoning was the declaration says one people, it doesn't distinguish between white and black. So all people in the United States must be part of the people of the United States, which Spooner said must have freed the slaves right then. They must have been free already. And then the Constitution says we the people of the United States and he says, and in fact, if you look blacks in some states could vote for delegates to the ratification conventions for the Constitution in 1787 and 88. So if they are people, then they are protected by the due process clause and other clauses of the Constitution and no state may intrude on their rights because the Constitution says in Article IV that you are entitled to the privileges and immunities of citizens of the several states when you go from one state to another. Now, the problem with the original Constitution, of course, is that it didn't define citizenship. So the Constitution refers to citizenship but it never explains what that means. So it says, for instance, the president must be a natural born citizen. Representatives have to be citizens of the United States. The privileges and immunities clause protects the rights of citizenship but until the 14th Amendment was ratified, states gave you your citizenship and then you were a citizen of the United States through that. Well, the problem with that was in some states free blacks could become citizens and in other states they couldn't. So you had situations like the police act of South Carolina which said that all black sailors on ships landing in ports in Charleston or in South Carolina had to be put in jail at the ship captain's expense. Upon arrival and if, until the ship left and if the captain failed to pay the bills for his imprisonment, then the sailor would be sold into permanent slavery. Well, now a black man could become a citizen of Massachusetts and thereby a citizen of the United States and Massachusetts had a lot of sailors then as well as now and a sailor could very well land at a port in South Carolina and now he's being imprisoned for committing no crime in violation of the privileges or immunities clause. So you have this real problem about citizenship that leads up to the Civil War and the anti-slavery constitutionalists said, federal citizenship comes first, your rights belong to your federal citizenship and at least free black people and possibly even slaves are citizens of the United States and therefore entitled to these protections. Now, you know, these guys disagreed amongst themselves. Lysander Spooner was probably the most radical. Other people like John Quincy Adams were more conservative, but even they said, for instance, the Missouri crisis of 1820, Missouri wants to get into the union. It proposes a state constitution that allows it to exclude free blacks from its borders. And John Quincy says, well, this violates the privileges and immunities clause, you can't do that. And they worked out this meaningless compromise, of course, where Henry Clay negotiated this thing where they included in the admission law, they said, well, okay, but we will, Missouri must promise to interpret that clause of its constitution, not to violate the federal constitution. What does that mean? Nobody knows, right? So it put off the conflict. And anyway, so the anti-slavery constitutional theory, they do disagree amongst themselves, but they had certain broad principles, and that is federal citizenship first, that includes individual rights and no state may justly intrude on those rights. And they tried at first in courts and in Congress to advance this interpretation of the constitution and ultimately it turned out they had to amend the constitution. And that's the 14th Amendment. Now, when the 13th, 14th, and 15th Amendments are ratified, we see the death of the idea that the states have the kind of unlimited Blackstonian sovereignty that some people said that they had before. And whether they had it before or not as immaterial, it's gone now, we all agree with that. But the beast rears its head again in the progressive era with the idea of the federal government now holding more or less that type of sovereignty as opposed to the idea that it has a limited amount of power. So what happens in this next stage of the story? Well, one of the interesting things about constitutional law and really about all legal interpretation is the question of when does something become unconstitutional? So let's take, for example, Lawrence versus Texas, the recent decision in which the Supreme Court said that states can't criminalize same-sex sexual conduct in private. The question is, well, when did it become unconstitutional? And the answer is it was always unconstitutional, right? And yet it continued to go on because there was no case to address the question and the states were prohibiting this kind of conduct and so forth and there were debates about its constitutionality going on. Then the court interprets the constitution and says it was always unconstitutional for states to intrude in this way. So with the 14th Amendment, the question isn't did the authors of the 14th Amendment changed the constitution to eliminate the Blackstonian vision of sovereignty. It's more accurate to say what they did was they made clear that that had never been correct and that the states were never sovereign in that sense and if there was any question about it, this amendment would settle it. And the way it does that is, among other things, it strips states of the last vestiges of sovereignty by defining citizenship and defining it at the federal level. So states have no say in who their own citizens are. That decision is made for them by the constitution and you're a citizen of the state wherein you reside, whether the state likes it or not. So it was more of a clarifying than a changing amendment. Unfortunately, it didn't really clarify things enough for some people and so the very first Supreme Court case to interpret the amendment was the Slaughterhouse cases of 1873 and what the court does there is it totally ignores the deeper ratification, the meaning of the ratification of the 14th Amendment and it endorses the obsolete state's rights view of the constitution and it says, was it the purpose of the 14th Amendment to say that the federal government will protect civil rights even against state authority? Why, that can't possibly be the way because it's never been that way before. Well, I also recall that the decision all but said that such a view would entail way too much work for the courts and to me, this can't possibly be the proper way to interpret the constitution. If it means that the courts have to do a lot of work to achieve justice, well, isn't that their job? It really ought to be and not only that but there was another case I mentioned in the end notes actually a California state court case that interpreted the privileges or immunities clause only three years before Slaughterhouse and it says if it was the purpose of the 14th Amendment to provide federal protection for civil rights then we would regard such a law just like we would regard a law apparently legalizing murder. So there was real political hostility to what the Republican party had accomplished with the ratification of the 14th Amendment. There was a lot of what you would be appropriately called reactionary conservative opposition to what had been done to the constitution and it took the form in 1877 of abandoning the freed slaves by abandoning reconstruction and in the Supreme Court it took the form of the Slaughterhouse cases and other cases that followed in the years that came after that. There was of course the famous Cruickshank case which involved a race riot. The Colfax riot, yeah. The Colfax massacre. Which is a fascinating story. And that was a question about whether the 14th Amendment protected the civil rights against state power and the Supreme Court said, well, we already said Slaughterhouse cases we already said no, so no. Interestingly, the Colfax massacre occurred on the very same day that the Slaughterhouse cases was announced on April 13th, 1873. So the 14th Amendment, if we look at it in the proper way in your interpretation, does it, would it be fair to say it brings back in the principles of the declaration, back into the constitution, back to the states, applying to the states, what they always weren't allowed to do in the first place. But this time we're just, now we really mean it this time and creates a floor below which the states can't go that was there before because the declaration, would you say the floor was there before? I absolutely it was. And there had, of course, the constitution was ambiguous in some ways. And one of the big ones, one of the big ambiguities was what role does the Bill of Rights have with regard to state governments? There was the famous Case Baron versus Baltimore in which John Marshall said that the Bill of Rights only applies to the federal government. And you know, that is a very plausible reading of the Bill of Rights. Everybody knew it was written in order to protect people against the federal government. And you know, it was added to the federal constitution, not the state constitution, made a lot of sense. And of course the First Amendment is explicitly applied only to the federal government because it refers to Congress. So Marshall says it doesn't apply to the states. But you know, not all of the amendments say Congress. They say no person shall be deprived. You know, and it doesn't say by what government, right? And so a group of people disagreed with Baron versus Baltimore. Professor Achille Lamar calls them the Baron Contrarians. And they played a large role in the anti-slavery political thinking that led up to the Civil War. And so one of the roles of the 14th Amendment was to clarify that point, to make clear that from now on the guarantees of the federal constitution shall apply at the state level also. So interesting, the fact that the Bill of Rights though, people would say, some people would say, well the Bill of Rights is what gives me these rights that I have against the government in a certain way. And it was applied to the federal government. The states had their own bills of rights. If someone says that the Bill of Rights, you know, when they walk in they say, I have the freedom of speech because the Bill of Rights. What's wrong with saying that? Yeah, well that's exactly, so the Bill of Rights only declares these principles. It doesn't create these rights. And it doesn't purport to create these rights. The language itself of the Bill of Rights uses terms like, no person shall be deprived or this right shall not be abridged. It doesn't say we shall extend this right or people shall have this right. So the Bill of Rights itself. Which is how you would use it for like a voting right. Yeah. Because that's what you use for voting rights. We shall extend the right to vote to win. I'm not exactly sure about that. Well actually, that is a bit difficult because the way that voting rights are is that the Bill of Rights, the way that voting rights are extended to women, I'm going to get the exact language here, but it is... Using the Kato Pocket Constitution. Yeah, using the Kato Pocket Constitution. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. So it doesn't actually say we have created this right for women. It says that it shall not be abridged on account of sex, which means no one will have this as the reason that they are denied to vote. There's a special history there though, because for one thing, women could vote in some states at the time of the ratification of the Constitution. And that right was then taken away in a reactionary movement in the 1790s and 1800s. And there were women who argued before the ratification of that amendment, there were women who argued that the Constitution never says that the right to vote shall be limited on the basis of sex or extends it only to men. And so many of them argued that against the 15th amendment because the 15th amendment was the first time that there was any constitutional acknowledgement of a state's authority to discriminate on the basis of sex when it came to voting rights. So they were doing in miniature what the anti-slavery constitutionalists had already done with regard to slavery. They were saying the Constitution already prohibits the government from depriving us of a right to vote that is created in the Constitution. And so with the ratification of the 19th amendment, they again clarified that. Now, there's an interesting follow-up to that, which is the 19th amendment doesn't just guarantee the right to vote. Akhil Amar's new book, The America's Unwritten Constitution, has a marvelous chapter on this issue. What else does the 19th amendment do? And he argues that the 19th amendment should be read as a broader protection for equality for the rights of women. Well, the problem was that Amar leaves out the case that stands for this proposition, and that's one of my favorite Supreme Court cases, Adkins versus Children's Hospital, a 1932 decision in which the Supreme Court struck down a minimum wage law here in Washington, D.C. that applied only to women. Interestingly enough, it was brought by a woman who had lost her job because she was an elevator operator fired over her. A woman named Willie Lyons, who worked at a hospital here in D.C. And she liked her job, but she made less than the minimum wage. Now, of course, the minimum wage in this case only applied to women. So what did these businesses do? They all fired all the women and hired men because they were cheaper, so she lost her job, and she was viewed. And there was an earlier case called Mueller versus Oregon that said that the government could pass minimum wage legislation for women only because women were dumber and weaker. Delicate, yeah. And they needed the government to protect them. I mean, it's astonishing. Interesting. Yeah, that's also the first Brandeis briefcase. That's right. Where Louis Brandeis, you know, great champion supposedly of liberal causes, filed the first brief where you just dump on the court a ton of sociological data supporting your interpretation of the law and this was just a huge brief that was full of all these studies about how women are caught. So are weak, and they need special care and their bones are brittle or anything else like that. Right. And what Justice Sutherland then says 30 years later in Adkins, he says, okay, maybe that was right then, but with the ratification of the 19th Amendment, we now have said that women are equal to men and they are equal citizens, and therefore, under the due process laws of the 14th Amendment, they cannot be deprived of liberty arbitrarily and they don't need the government to be looking over their shoulder telling them how to live their lives. And because that law, that case involves economic liberty, that's why Professor Omar leaves it out of his book when it makes the strongest case for the argument that he's trying to make. Yeah. And it's an anti-minimum wage case. Now, not to be too pedantic here, but you might very easily read the 5th and the 14th Amendments in their guarantee of rights for persons and say, hey, this isn't gender-specific. Right. Obviously, it was intended with the 14th Amendment to be general with respect to race, but if it was intended to be specific with regard to gender, why wasn't it written that way? The words men and women were very well known then. Right. Man and woman were known in the law. Right. But that's not what the text says. It says person. Was this an intentional or unintentional error? Was this an assumption? And what role does the implicit assumption make in the role of our constitutional interpretation? It strikes me this is very, very important because we will look at a document like the Declaration of Independence or the Constitution and say, look, these are written in general terms when, yes, the authors of the documents may have written in those general terms, but clearly when they were enacted and when they were immediately acted upon, they were not acted upon in general terms. They were taken to mean that women are not civilly equal to men and not going to be equal citizens and, of course, that there would be racial discrimination as well. Well, I was going to say if you were to take your question and substitute for women, substitute blacks for women, that is exactly the issue in Dred Scott. And what the anti-slavery constitutionalists did was exactly what you said. They said, they looked at the Constitution, they said this makes no distinction based on race. So slavery, which consists in large part of depriving people of liberty without due process of law, therefore must be unconstitutional. Now, in our view, in our days, typically we look back at that and we say what a ridiculous argument to make. Slavery was pervasive in society and you can't possibly say that it was already unconstitutional before the 13th Amendment was written and yet, in fact, we are surrounded all the time by unconstitutional activity that we only later say, you know what, that was always unconstitutional. Exactly. And so, I don't think it's that radical to begin with and remember that the arguments on the other side were no less radical. The pro-slavery constitutionalists, for instance, John C. Calhoun, argued that there was in fact no such thing as an American nation. There was no such thing as federal citizenship. There was no American political society. There was only a treaty between sovereign states, which in fact is the exact opposite of what the Constitution actually says. But that is no less radical a position. Now, again, these were extreme positions, although, you know, Justice Curtis in his dissent in Dred Scott, he does make a large number of these arguments, but they were radical enough that they required amendment to the Constitution. But as far as women are concerned, absolutely. What Susan B. Anthony and her colleagues were doing was arguing that the Constitution does not discriminate on the basis of sex and only when the 15th amendment comes along. Does it imply that states are allowed to discriminate against women when it comes to voting rights? I want to go back a little bit to the Bill of Rights because we have a good sort of rights thrust going here and also on enumerated or enumerated rights. We talk about the Bill of Rights and the original non-inclusion of it in the Constitution as it was released from the convention on September 17, 1787 and people are often surprised that the Bill of Rights was sort of a later code of sale. They say, and that's usually the first thing people think of when they think of the Constitution is often the first amendment. Why did they so blatantly forget a Bill of Rights? Well, they didn't forget it. They were afraid that stating a Bill of Rights would imply that rights not listed were not protected by the Constitution. So, Jefferson gets a copy of the Constitution. He was in France at the time. He gets a copy of the brand-new Constitution before it had been ratified and he writes to Madison. He says, look, there's a couple things I don't like. First, I don't like that the president can be perpetually re-elected. I think it should be two terms only. And secondly, I think there should be a Bill of Rights. And Madison writes back and says, the problem is if you say people have the right to one thing, that kind of implies they don't have a right to another thing. So if you say they have the right to freedom of speech, freedom of press, and freedom of religion, then clever lawyers are going to say that that means you don't have the right to things not listed. You don't have a right to their foot through sprinklers on a hot summer day. And so what we need to do is if we're going to write a Bill of Rights, we need to write it in such a way as to not imply that. And Madison became persuaded that he could do that. And the way to do it was the Ninth Amendment that says the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people. And that's why the positivist interpretation of the Constitution- That way, what's that? Define positivist. That means that if there is, if the right is not listed, it's not a right. It says that, I mean, positivism means that law is what we say it is. And so if there is no right listed, then it's not a right. And the reason why that is the wrong interpretation of the Constitution is because the Ninth Amendment says that's the wrong way to read the Constitution. And that's- And it was a very reasonable fear at the time, historically speaking, when you look at grants of right that had been made before. So if you consider, say, the Edict of Nantes in France, this was a very, very limited grant of religious liberty to one particular persuasion of Protestants. You couldn't just pick your own religion. You couldn't make up a new one. You were restricted to certain places and times, and you're not allowed to build new houses of worship. You just have to keep with the ones that you have, etc, etc. There were so many strings attached and it was very clear that the Edict of Nantes could be revoked at any time and eventually it was. And obviously this is the sort of charter that they would not have wanted because then well, then of course what eventually did happen would happen, which is that people would come along and construe the Bill of Rights to be a limited grant of rights and not one that was simply trying to spell out some small share of a much larger sphere of rights that can't in fact be fully enumerated by anyone. And now you know, my friend Clark Neely who just wrote a book called Terms of Engagement that's about the question of judicial activism and judicial restraint. He was at an event not long ago where he asked a prominent positivist judge named J. Harvey Wilkinson and he asked him, well, suppose that the Constitution were amended to say unenumerated rights, the right to run barefoot through sprinklers and so forth, shall be protected by the courts when cases of that nature come before the court. Would you enforce such an amendment? And Judge Wilkinson since he said no. Well, so it's not a question of whether... That's what the Ninth Amendment actually says. And it's very puzzling to me also to watch people try to reason their way out of the Ninth Amendment because I like to say everyone actually believes in the Ninth Amendment to some degree, it's just a question of what other rights they think that people have. So for example, I don't think anyone believes that you have no right to breathe the air. I don't think anyone believes that you have no right to travel. Virtually everyone will say yes, you have a right to travel in the United States, maybe there might have to be some restrictions in cases of emergency, maybe you have to follow traffic laws, that's fine, but you in principle have a right to go from one place to the other within the United States without being stopped. That's something that is not anywhere else in the Constitution if it's anywhere, it is in the Ninth Amendment and I think properly so. The right to travel is an absolutely great example. Yeah, because of Slaughterhouse. And because it's not listed in the Constitution and yet it is taken as one of the bedrock ideas of what freedom means and the courts have always protected it and the reason why is they say the 14th Amendment protects liberty. What do you mean by liberty? Well, let's look at Blackstone or Cook or the ancient and modern legal scholars and Blackstone says, liberty includes the freedom from bodily restraint and traveling wherever you want to. That's the most basic meaning of liberty and they say, okay, well, the 14th Amendment protects liberty. Blackstone says, liberty includes freedom from restraint. Therefore, freedom of restraint is protected by the Constitution. That's how we protect unenumerated rights. Now, I find it ironic that we talk about unenumerated rights because liberty is an enumerated right. The Constitution says you have the right to liberty and it's protected by the Constitution. That's why that's the subtitle of my book. So, when we interpret the term liberty in today's world, what we do is exactly the same thing. We say, okay, it protects liberty. What do we mean by liberty? And then we look in the legal scholarship. We have these kinds of philosophical debates, historical analysis and so forth and we protect liberty that way. So, yeah, you brought up J. Harvey Wilkinson which I think is a good way to segue with this point into a question of how, therefore, do you as a libertarian and other libertarians tend to view this role of enforcing the Constitution versus what J. Harvey Wilkinson would view and where's the tension there? As I see it, Judge Wilkinson is the final collapse of positivism. I mean, Wilkinson's book is basically saying there is no such thing as political theory. I mean, as constitutional theory. The thesis of his book is that everybody is wrong. There is no validity to any interpretation of the Constitution period and there cannot be. And the reason why he says is because for there to be an interpretation, a theory of the Constitution would intrude on our inalienable right to self-government. That's what he says. It's the only time in his book. That's the only right we have. It's the only right he refers to. It's to go and vote in elections. It's right. It appears before administrative committees. Exactly. And it's not only a right but an inalienable right. And what's ironic about that is that the founders never believed there was any such thing as an inalienable right to self-government. There was no right of government whatsoever. There's no right to government. The government is a permission. We give government the authority, the power to govern us. But it's not a right. That's the whole point of being anti-monarchical. Yeah. But it's again, it's the only right that Judge Wilkinson recognizes. And therefore he naturally comes to the conclusion that any kind of individual right must conflict with that. And he follows in a line of positivists who have said the same thing. From the left and the right. That's right. And I think mostly from the right. Judge Bork, for example, says he criticizes Marbury versus Madison because he is basically anti-judicial review at all. He thinks that the courts should not be in the business of enforcing the Constitution by striking down laws that the legislature... Now that's very hard for me to understand as a position intellectually because I've read the Federalist papers and it's very clear that the proponents of the Constitution imagined that the courts would be doing this. Alexander Hamilton talks about how the courts will do this. And so it's very difficult for me to see how anyone could have been taken by surprise at this. It was a clear implication of the text. Marbury versus Madison explains how it is such a clear implication of the text and given that it was talked about beforehand you made a deal. You made a bargain. I was well understood at the time. It was practiced by state courts already at the time of the ratification of the Constitution. Federalist 78 explains it very clearly. And the Constitution's text does require it because it says, laws made in pursuance of this Constitution shall be the supreme law of the land. Which means there are some laws out there that are not in pursuance of the Constitution and that are therefore not the supreme law of the land. And every branch has the duty to obey the Constitution. So there you go. So the view here of extreme deference to democratic majorities is it that they're absolute democracy fetishists? Are they afraid of something? Well one blurs into the other. I always think that the conservative started being afraid of that if you let us do it, then someone else might do it wrong. And therefore no one should do it. My sense is that people who take the extreme position of democracy over liberty are making possibly the very most respectable and the nicest possible form of the argument at baculum. I have a stick and my greater force is what will carry the issue. That's not a legitimate argument in logic and the argument that there is a majority that wants to do something politically is not necessarily a legitimate one in politics either. I was at an event some years ago where a speaker was a prominent law professor who's very anti natural rights and in the end I said well now you have this choice to make between democracy as your value and liberty as your value and you choose democracy why? You've told us already that there is no validity to moral propositions. There's no such thing as rights. It's all just how you feel. When you say that people have freedom of speech all that means is that you like the idea that they should be able to speak. It's purely an emotional preference. You have no intellectual basis for that. That's what you've said. So why do you choose democracy? And his answer was I just do. It's just as arbitrary as any other choice. Well then why not choose dictatorship? So we're out there though. We're looking for these rights and you've discussed how in the book you discuss the doctrine of substantive due process which has been called I mean obviously oxymoronic phrase by some people very looked down upon by justice Scalia for example but something has something to do with unenumerated rights but you defend it. Yes. In fact they've called it all sorts of names. It seems like there's a competition to come up with the nastiest way of referring to the theory of substantive due process. So what is the theory first? The theory of substantive due process is the idea that the due process clause which says you cannot be deprived of liberty without due process of law. The idea is that this clause prohibits the government from doing certain things to you regardless of how it does them to you. Some people read that clause as meaning that the government owes you a hearing or a trial before it takes away your life, liberty or property but the theory of substantive due process is the idea that the constitution prohibits the government from arbitrarily depriving you of life, liberty or property at all and so procedural due process then is only one small component of the substantive due process. It's because the government cannot arbitrarily deprive you of liberty that it then has to give you a trial or a hearing or something like that and this came under fire beginning really in the 1930s 1940s. In fact the very phrase substantive due process didn't exist before the 1940s. Before then it was just due process of law. Did someone invent it to try and make it sound ridiculous? Exactly and it reaches back to Magna Carta. If you look at the English common law decisions from before the American founding, first of all all of those decisions protect unenumerated rights because the rights were unenumerated because there's no written constitution in England and they did so under the law of the land clause of Magna Carta. The law of the land clause says the government cannot deprive you of liberty or property except by the law of the land and then the question is what does law of the land mean? Not just statutes and legislation. It means general principles. It means in a lawful way and that means not arbitrarily, not because the government just wants to, not because the majority has decided to take your freedom away. There has to be some justification for its restrictions on your liberty or taking of your private property and that was the argument that Daniel Webster made in his epical oral argument in the Dartmouth College case of 1819. Yeah, the one that went on for 10 hours or something like that. Yes and it's a master piece and it was studied for generations by law students who of course don't study it today and it was quoted over and over again by the Supreme Court itself saying this is what substantive due process means. Well, you look at Robert Bork, he says that the first substantive due process case was Dred Scott in the 1850s. Another untruth from Judge Bork. Substantive due process is correct because we are promised not just any process but a process of law. Is the red queen's trial of Alice in Alice in Wonderland a trial? Of course it's not a trial because when we talk about trial we mean a fair process whereby an adjudication follows based on reasons that arise from the evidence. In the same way an arbitrary assertion of government power isn't a law because it's just ipsy-dixit as they say in Latin. It's just because I say so. And so the due process clause prohibits the government from taking any of our rights away simply as an act of force. My favorite is there's an 8th circuit, actually on whether the government can force you to cut your hair. Really? No, it's public schools. And the court says that it cannot force you to cut your hair just arbitrarily. There has to be some reason related to school discipline or something like that that justifies forcing you to cut your hair. Where's the enumerated right? There are religious groups that do not cut their hair for religious reasons. Sure. I imagine they might have a free exercise case there, but not everyone would, certainly. I'm not a Sikh and the Sikhs are the ones who do not cut their hair for religious reasons. So maybe that would be a problem for me, but not for them. And that raises the question of why should it in fact be that way? Should those rights not be equal? Well, yeah, that does raise the question. But I do want to go back to Tim or somebody with the justification that we can come back and maybe what Jason's question was of because you're even asking for justification, that seems to raise it to some level, right? If you just, you have to justify it. Even if it's something you have to justify. Because we presume that all people are free and the government can only take freedom away for some good reason. And the government are not like your parents who can tell you, because I said so, Ipsy Dixit, all the time, right? And then also it seems like you're saying that the term law in these contexts of due process of law, law of the land clause of the Manta Carta is actually a term of art in a way that maybe we've forgotten that law is a term of art, right? It describes a specific type of going about doing that. That's right, it incorporates substantive values. It doesn't mean just whatever the legislature says it means. And we know that that must be true because if that were true, then the clause would be meaningless. It would mean that the legislature could pass a law taking away your freedom and then when you say, well this violates my due process, right? They would say no, because we passed a law to take away your freedom. You know? And that would be question begging. So we know it can't mean that. And then when you look at the legal history you see that the phrase comes from Magna Carta and all of those common law cases that were written at the time and that is a far stronger protection. It has a far stronger basis in the constitutional history than the notion that due process of law just means whatever the legislature says it means. If that's what law means then why have a constitution at all? Yeah. I don't know why they just have a dictatorship with force. Yeah. Now, some of this sits very badly with one particular footnote. The Caroline Products footnote 4. Which I would like you to talk about a little bit because I think it's a very instructive bit of jurisprudence that causes a lot of things to make sense about how rights are interpreted and how we arrived at where we are now that probably all libertarians ought to know a bit about. Yes. That's true. But it was also somewhat misunderstood by some libertarians and that is a lot of people think that what happened was that the Supreme Court, the famous switch in time that saved nine, they think that well in 1937 the Supreme Court just woke up and changed the constitution. Or at least Owen Roberts did. Yeah. And this was a sudden shift that was based on their fear of the court packing plan in 1936 and ever since then everything's been different. Well, it's not quite as simple as that. And we know that because in 1934, three years before the so-called switch in time, the Supreme Court decided Nebia versus New York and Blaisdell versus building and savings and loan corporation. And in both of those cases the court strongly reduced, I mean sharply reduced protections for economic liberty and set the stage, I mean created the so-called rational basis test in the Nebia case. Which watered down constitutional protections for freedom of contract and private property rights. And then the switch in time in 1937 came after that. Now what I think a better way of interpreting what really happened in the 30s. The 30s was a horrible time. 1930s has to be the worst decade in human history. W.H. Auden called it the low dishonest decade. Yeah, I mean I think maybe like some random decade in the 8th century would be pretty cat too but I'll go with that. But I guarantee you more people were killed in the 1930s. That's true. And what happened, so that is a blink of an eye in the history of the law but it wasn't just 1937. What happened was that the court reduced protections for individual liberty dramatically in 1934 and then in 1938 in the Caroling products case it said okay look some rights will get stronger protection and it listed those rights for the most part in that footnote 4. And at the same time the rights that it particularly focuses on in that footnote are rights that can be reconstrued in a democratic way. These are rights like speech and the right to vote and things like that that have a role to play in democracy. So the court is not only saying it'll protect these rights more than it said a few years ago in the Nebia case but it's saying that we're going to protect rights that are important for the democratic process as opposed to individual rights. Also what the court did is it reconstructed the concept of individual rights in terms of how it serves democracy and ever since then the idea has been that individual rights are protected in order to serve democracy as opposed to the democracy exists to protect individual rights. I think it's also worth filling us in on what the actual issue was in Caroling products and why they didn't want to protect this. Well Caroling products was a case about an economic liberty case about the restriction on what you could put into certain dairy products. It was a product itself. Which sounds disgusting. It was skim milk that was then added, there was different types of other fat added back into them so you could use fish oil or something like that which you would refatten up the milk by using it. And what the court said was we're going to presume economic restrictions to be constitutional unless proven otherwise. And it had already said that in the Nebia case so that really wasn't all that new. A little footnote, our friend Josh Blackman has done some research and found that the Caroling products company actually ended up winning its case in the 1970s. Decades later it finally had that loss dropped down. Millnut is what it's called that's a fascinating story by itself even fascinating too which I think is relevant to the cronyism we talk about now is if you look at the history of the filled milk act of 1923 is what it actually is called when they decided to pass this the dairy industry sat down and looked Congress in the face and said this filled milk is hurting a vital national industry and that vital national industry was dairy. And so they went up to Congress, looked him in the face and said pass this crony capitalism law and the filled milk industry had said had these points which were very valid and which was that filled milk is used by poor people more because you don't have to refrigerate it and refrigerators are fairly common and it's cheaper so they made a leak, the dairy companies made a legal, a viable product that was not a health risk based on crony capitalism and then when the court was asked to look at this law they did it and I think it's relevant to a lot of stuff that's happening now and the kind of vision that the Libertarian Constitution would have that you can stop crony capitalism but not entirely but you could do a lot by having a Libertarian Constitution I'd like to ask two questions from the standpoint of someone who is a defender of this modern democracy based approach to rights. The first is what do you actually have against democracy? Do you believe that democracy is wrong in some sense? Do you believe that it is dangerous? Do you believe that perhaps a small group of knowledgeable aristocrats or of particularly ideologically sympathetic people should be running the government? Is that really what you want? And second what is the danger of asking majorities to protect rights? Majorities in this country actually care about rights and they will perform their duties accordingly they will vote for protections of rights. It's very unlikely I've heard this from progressives it's very unlikely that democratic majorities are going to oppress minorities here it just doesn't happen anymore so relax about this Well at first I was going to say that I would use your second question to answer your first which is that I'm not so much anti-democracy but I'm very much against making it into a fetish or saying that democracy is the source of all political good which is what we're propagandized to every day in this country we're told that democracy is the source of our political greatness and all this sort of thing spreading democracy not true democracy is good in so far as it fits within the spectrum of political goods and so democracy is a useful tool to protect individual rights that's what Madison says in the Federalist and he makes that argument about what modern progressives often say that if you have a balance of interests that none of them can gang up on a minority and beat them up and take away their things of course that wasn't even true in Madison's day witnessed the glaring fact of American life at the time which was slavery so it is entirely possible and we see everyday majorities ganging up and violating the rights of individuals it's done on a minute by minute basis in this country I'm just it astonishes me that we express so much worry about courts violating the Constitution or exceeding their authority as if they are the ones out there taking away our freedom when it is legislatures violating the Constitution every minute of every day in every state and at the federal level taking away liberty after liberty after liberty harming people and getting away with it in on the theory that democracy somehow justifies it so my problem is with democracy being elevated above liberty as the constitutional value the Constitution says that liberty is a blessing it does not say that about democracy the word doesn't appear in the declaration of independence or the Constitution founders were rightly suspicious of democracy and they tried to create a system of checks and balances to restrain democracy to get its benefits while preventing its harms and we fiddled with the system so much that we have a lot of its harms coming back on us so we are running out of time but we each have one parting question for you and my question is if you could add one amendment to the US Constitution on a single subject what would that amendment be I'm reminded my father always says that he would like to amend the Constitution to say breaking the law is illegal but I think a good amendment would be and we mean it because I don't think that the Constitution needs that much amending I think that the Constitution needs to be followed and the problem with the modern legal interpretation the so-called living Constitution is that it in fact is a dead Constitution it's a Constitution with all sorts of dead spots in it we now have a Constitution where the public use restriction on the power of eminent domain is basically meaningless another example of cronyism too yeah exactly and I think so I would say I don't think that the Constitution needs that much amending I do think there are some things in the Constitution I disagree with I don't believe in intellectual property rights for example and so the patent clause troubles me it's clearly constitutional but I don't think it's justifiable so there are some things I might tinker with restoring state legislative power over using senators I think could be beneficial although it also has some downsides that we sometimes overlook so I might do some tinkering but no I don't think that the Constitution needs radical amendment so yeah I've always been partial to the no one can be president who wants to be president and the no air conditioning in federal buildings because if you've ever been in DC in the summer this is the only way I can think of how to get them to not go to work so as the final question we've learned a lot about the true your view of the interpretation of the Constitution and how it is a very very powerful force for Liberty so what is the Libertarian Constitution why is it better and what should we do what how should we use it to make the world better anything that's left of it if we can actually use it I think the Libertarian Constitution is a Constitution that protects individual Liberty against the forces most likely to take that Liberty away and that is legislators presidents and courts and it provides a wonderful system of checks and balances to protect those those rights I think the founding fathers had a vision in mind of a society where the government didn't play a constant role in your life I mean we have a system you asked about amendments we have a system where the interpretation of the commerce clause is so broad that the federal government today dictates to us everything from the thickness of ketchup to the angle at which your office chairs can lean back that is not what the founding fathers intended so now another amendment that occurs to me is an amendment that Milton Friedman proposed which was to say that the right to engage in honest trade shall not be impaired unfortunately the founding fathers thought that that right was so obvious why would anybody take it away and now it's so restricted that we are really killing the golden goose I think rightly understood the Constitution is a glorious Liberty document that was that's a phrase from one of my heroes Frederick Douglass one of the great intellectuals in American history he was asked late in life what he thought about the so-called Negro problem and he said there is no Negro problem the problem is whether the American people have honesty enough bravery enough patriotism enough to live up to their own Constitution and I think we libertarians only have to demand that thank you Tim and thank you for listening if you have any questions about this podcast or about anything on libertarianism.org you can find me on twitter at tcburris that is tcburus you can find me on twitter at Jason Kuznicki that is j-a-s-o-n k-u-z-n-i-c-k-i and my twitter feed is at timothy sandiford that's s-a-n-d-e-f-u-r and my blog is at sandiford.typepad.com I'd like to thank Tim for joining us and Jason for filling in Free Thoughts is a podcast project of libertarianism.org in the Cato Institute and it is produced by Evan Banks if you'd like to learn more about libertarianism please visit us on the web at www.libertarianism.org