Two of my favorite libertarian bloggers have squared off over the meaning of the Commerce Clause. In this corner, from the Cato Institute, Radley Balko:

Nearly every libertarian interpretation of the Constitution I’ve read says that the intent of the Commerce Clause was to facilitate commerce between the states, not to inhibit it. It was meant to set up a kind of “free trade zone” between the states. So if Mississippi, for example, wanted to tax every boat carrying cotton not grown in Mississippi traveling down the Mississippi River, Congress would have the authority to intervene. I’ve never read a libertarian interpretation of the Commerce Clause that says it should be interpreted to mean that Congress can tell businesses how they can or can’t solicit customers.

In fact, most libertarians agree that the only Supreme Court case to correctly interpret the Commerce Clause was the very first to come across its desk — Gibbons v. Ogden in 1824. There the Court struck down a New York law attempting to establish a monopoly on steamships traveling between New York and New Jersey. Chief Justice Marshall recognized that the Commerce Clause applies only to the trafficking of goods between two or more states, and also that Congresss had no power to regulate commerce within a state (he refused to allow Congress to enforce quarantine laws before or after a steamship docked within a particular state, for example).

And in this corner, late of Cato, now with Reason magazine, Julian “the Apostate” Sanchez:

Well, you know, I don’t much care about the “libertarian” or “non-libertarian” interpretation; I’m more curious about the correct interpretation. And if the “libertarian” interpretation insists that, contrary to appearances, the Commerce Clause does not empower the federal government to “regulate Commerce… among the several States,” then the “libertarian interpretation” is wrong.

Oh, I fully agree that the abuses Radley goes on to cite, wherein “commerce” is read to mean “manufacturing” or “anything that might affect commerce” or “anything Congress feels like passing a law about” are ultra vires. But that’s not what we’re talking about here, is it? This isn’t someone growing wheat on his own farm, or insisting on a 50 hour work week in a local factory. We’re talking about folks in one state calling up folks in another state to carry out a business transaction. If that’s not “commerce… among the several States” I don’t know what is.

The ostensible bone of contention here is “don’t-call list” anti-telemarketing laws, which Radley opposes and Julian doesn’t object to very vociferously, but the more important issue, as they both recognize, is the scope of the Commerce Clause. What we really have on display, however, is two conflicting theories of Constitutional interpretation.

Radley, as he acknowledges offhandedly, subscribes to original intent, appealing to “the intent” of the Commerce Clause to faciliate rather than inhibit commerce between the states. Julian is a textualist: he argues that the power “to regulate commerce among the several States” is, well, exactly that.

Now much as I would like to read the Constitution as debarring all Federal economic regulation whatsoever, I’m afraid Radley’s dog won’t hunt. Laws and constitutions are written by committees, and ascribing intent to groups is a dubious process indeed. If Jefferson, Madison and Hamilton quarreled over the meaning of a particular clause, as they often did, whose “intent” carries the day?

Original intent theory, if we assume that “intent” can be established at all, perversely privileges thought over deed. We are supposed to concern ourselves not with what the Constitution actually says, but with what the Founders thought it said. Even as a principle of literary interpretation, where we usually have only one author to concern ourselves with, this is unsustainable.

I of course agree with Radley and Julian that the Commerce Clause is a painfully slender reed to suspend a full-featured welfare state from, or, as Julian puts it, “that commerce means, as it’s been read to mean, ‘anything that seems like it might possibly marginally affect commerce if you squint real hard.'” Radley complains that “How can you say, then, that Congress doesn’t have the Constitutional authority to regulate the airlines, broadcast media, or any business, really, that has franchises in more than one state, or that does business with other businesses in more than one state, or that does anything at all that even remotely affects commerce in more than one state?” The answer is two-fold. First, there is a principled difference between regulating interstate commerce and regulating anything that might conceivably affect interstate commerce. The Supreme Court eventually agreed in Lopez that there are some interventions that even the Commerce Clause cannot justify, like federal laws against guns near school grounds. Second, some laws have to be fought on substantive rather than Constitutional grounds. As Eve Tushnet likes to say, Repeat after me: Not all bad laws are unconstitutional… not all bad laws are unconstitutional…

(Update: Jonathan Wilde comments.)

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What are these unenumerated rights?

Many theorists, of whom Robert “Inkblot” Bork is the most notorious, have denied that unenumerated rights exist at all. The dominant school of legal philosophy, legal positivism, which holds that the only source of rights is the law itself, obliges its adherents to take this position. Unenumerated rights, implying an extralegal standard, are for the positivist a contradiction in terms. Frank positivists, like Bork, say that the Ninth Amendment is meaningless; less frank positivists, like Justice Robert Jackson, simply profess not to understand it. All positivists devoutly hope that if they ignore the Ninth Amendment it will go away. Historically this strategy proved highly effective. Before Justice Goldberg’s famous concurrence in Griswold v. Connecticut in 1965, the Ninth Amendment had been cited by the Supreme Court fewer than a dozen times.

Reciprocists, in a variation on the theme, claim that the Ninth Amendment is a mirror-image of the Tenth, which grants all unenumerated powers to the States or the people. The Ninth grants rights, the Tenth restricts powers, and rights begin where powers end. They’re two ways of saying the same thing. Reciprocism has been surprisingly popular, considering its insuperable problems. There are all sorts of enumerated rights, like the right to be free of cruel and unusual punishment and excessive fines, or the right to a trial by jury, that aren’t implied by the absence of a federal power. The Federalists made this same reciprocal argument against a Bill of Rights at the Convention, and they lost. “It is odd indeed,” as Randy Barnett^* says, “to insist that the best interpretation of the Bill of Rights is based on the theory of its most vociferous opponents.”

The text doesn’t support reciprocism either. State governments are enjoined from violating whatever rights the Ninth may grant, by the doctrine of incorporation, which reads the Fourteenth Amendment as applying the Bill of Rights to the states. Incorporation clearly must include the Ninth Amendment; otherwise the rights it grants would be “disparaged” by comparison with the enumerated rights. So the Ninth enjoins state and federal governments equally, while the Tenth grants powers to state governments that the federal government does not possess. These are distinct propositions.

(I have never understood the necessity for incorporation doctrine. Every article of the Bill of Rights except the first is phrased in the passive voice: “the right to bear arms shall not be infringed,” “excessive fines shall not be imposed,” etc. These rules seem to me to enjoin the state governments equally with the federal, ancient case law to the contrary notwithstanding. But until I persuade the Supreme Court to go along with this view incorporation will have to do.)

There are other variations. Raoul Berger argues that even if Ninth Amendment rights exist, they can’t be enforced by the federal government, which is a pretty undistinguished argument from such a distinguished legal scholar. If they aren’t enforceable, how they can be rights at all? If that’s not “disparagement,” relative to enumerated rights, I don’t know what is.

All of these theories effectively read the Ninth Amendment out of the Constitution, thus violating the first principle of Constitutional interpretation: every clause has an effect. This has been reaffirmed countless times and was first stated by Chief Justice Marshall in Marbury v. Madison: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.”

There must be some unenumerated rights that are not implied by the enumerated restraints on government power. A few theorists acknowledge this; but as their next line of defense propose to read these rights as narrowly as possible. Calvin Massey, for example, proposes that they be limited to “those having a clear textual foundation in state sources in existence at the time of the Constitution’s adoption.” Of all the clauses in the Constitution the Ninth Amendment, which is deliberately open-ended, lends itself least readily to this sort of historical analysis. The Founders could have easily enumerated these rights from the states if that was what they had in mind.

I see only one way to construe the Ninth Amendment, and it requires, as one might expect, the Founders steeped as they were in Blackstone and Locke, natural rights theory. Now I’m as leery of this venture as the next blogger without a law degree, maybe more so. Generally I’m a pretty strict textualist in matters of Constitutional interpretation, but the Ninth Amendment commands us to look outside the text. This doesn’t mean judges can construct new rights willy-nilly. They must be constructed by analogy with, and under the same philosophy that informs, the enumerated rights. All enumerated rights involve either spheres of action in which the government cannot interfere (e.g., freedom of speech, press, and assembly) or procedural restraints when it can (e.g., trial by jury, unreasonable search). Unenumerated rights must be of the same nature. So there can be no Ninth Amendment right to, say, welfare, or, as Ronald Dworkin has proposed, to “equal dignity.”

John Hart Ely, who himself takes refuge in Ninth Amendment reciprocism, calls this “scary,” and I agree with him. But Constitutional interpretation is a scary business, and in any case, the judiciary constructs rights all the time. The Supreme Court has decreed, besides the famed right to privacy, a right to travel, a right to marry, a right to keep one’s citizenship, and many others, mostly under cover of murky and abstruse doctrines like “equal protection” and “substantive due process.” I wholeheartedly support such decisions as Loving v. Virginia, which struck down anti-miscegenation laws, and Griswold, which struck down restrictions on the sale of birth control. I merely object to the tortured reasoning to which the majority subscribed in these and related cases. Judges make moral and philosophical judgments, and the Ninth Amendment authorizes them to do so, in plain sight.

^*Most of the arguments in this article, good and bad alike, come from one or another of the contributors to Barnett’s excellent anthology of essays on the Ninth Amendment.

Justice Holmes, beloved of the left, beloved of the right (law-and-economics guru Richard Posner has edited the latest collection of his writing). It must be his looks more than anything: the height (6’3″), the big bristly white mustache, the Brahmin carriage, the steely gaze; he looks the very model of the modern Supreme Court Justice, at least as it must have been when Teddy Roosevelt appointed him in 1902. The name helps too: Oliver Wendell Holmes Jr. Cognominal overload, but fun to say.

What it can’t be is his jurisprudence. The first thing to understand about Holmes is that he was a radical moral skeptic. He was seriously wounded three times in the Civil War, shot through the heart at Antietam, and the experience hardened his conviction that human life was insignificant and reason impotent. What mattered was duty.

I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has little notion, under tactics of which he does not see the use.

Ugh. This is from a speech, made Memorial Day at Harvard in 1895, that induced Roosevelt to nominate him to the Supreme Court.

“I hate facts,” Holmes frequently remarked; “the chief end of man is to form general propositions.” He was always careful to add that no general proposition is worth a damn. Concrete propositions are worthless, abstract propositions are worthless — not much ground left to decide cases on, is there?

His jurisprudence accords with his table talk. This is most readily observed in his famous 14th Amendment decisions. The 14th Amendment states, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This leaves the judge to decide what “privileges and immunities,” “due process of law,” and “equal protection of the laws” are. It’s tough to do this without making a moral judgment somewhere along the line, which leaves a skeptic like Holmes in some difficulties, as we shall see.

Holmes’s first, and most famous, 14th Amendment decision was Lochner v. New York, in 1905. In Lochner the majority held that a New York state law prohibiting bakers from working more than 60 hours a week violated the 14th Amendment. Holmes wrote a magisterial dissent, declaring that “the 14th Amendment of the Constitution does not enact Mr. Herbert Spencer’s Social Statics [i.e., laissez-faire capitalism].”

Except nobody thought the 14th Amendment enacted laissez-faire. Everyone agreed that the States had the right to exercise the police power to protect people’s health and safety. Chief Justice Peckham, writing for the majority, argued, reasonably, that restricting the hours of bakers, who didn’t work in notably dangerous conditions, bears no reasonable relationship to the people’s health and safety, and that one of a citizen’s privileges and immunities is to contract his labor freely. Holmes’s famous aphorism doesn’t bear on the case in the slightest. (Although I can find no contemporary testimony on this subject, Holmes’ fellow justices must have found his writing style, in its grand manner, its haughty demolition of straw men, exceptionally irritating. I know I would.)

This is the sentence that should be quoted from Holmes’s Lochner dissent, but is not: “General propositions do not decide concrete cases.” OK. Then what does exactly? “The decision will depend on a judgment or intuition more subtle than any articulate major premise.” Intuition. This is what remains after we abandon concrete and abstract propositions alike.

This opinion is one of the two linchpins of Holmes’s reputation on the left. The other is his dissent in Abrams v. United States in 1919. In Abrams five Russian-born anarchists who printed and distributed a pamphlet calling President Wilson a “dog” and exhorting the workers of the world to unite were convicted under the Espionage Act of 1917, which prohibited “disloyal, scurrilous and abusive language about the form of Government of the United States;” language “intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute”; and language “intended to incite, provoke and encourage resistance to the United States in said war [WWI].” A noxious law, upheld by the majority, and Holmes, along with Brandeis, properly dissented. Here is his reasoning:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.

Cold comfort for the civil libertarian. Free speech, according to Holmes, is good because the best “test of truth” — a word that, given his philosophy, he is not strictly entitled to — “is the power of the thought to get itself accepted in the competition of the market.” That millions of American adults, having profited from two centuries of free speech, continue to believe in astrology, the healing power of crystals, and buying real estate with no money down might seem to put this theory in some doubt. Fortunately it is only the theory of Justice Holmes. The theory of our Constitution is that suppressing speech is itself tyrannical and the shortest route to further tyranny.

Holmes states elsewhere, in Gitlow v. United States (1925), why free speech, as opposed to freedom of contract, is protected under the 14th Amendment.

The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word “liberty” as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.

Speech is protected because it’s part of liberty, and other liberties aren’t because, well, they aren’t. As a legal argument this leaves something to be desired. Perhaps the moral skeptic is making moral judgments after all.

Buck v. Bell confirms one’s suspicions. Under a 1924 statute enabling involuntary surgical sterilization “for the protection and health of the state” the State of Virginia sterilized Carrie Buck, a supposed mental defective (who turned out not to be after all), without her knowledge. When she found out later she couldn’t get pregnant, she brought suit on 14th Amendment grounds and lost, 8-1, with only Justice Butler dissenting. Holmes, personally an enthusiastic eugenicist, wrote for the court:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…Three generations of imbeciles are enough.

Plainly Holmes believes that the 14th Amendment does not apply to state eugenics because Holmes believes in state eugenics. One need not belong to the third generation of imbeciles to differ. More seriously, if “the public welfare may call upon the best citizens for their lives,” then why does Holmes maintain that the 14th Amendment protects speech, or, indeed, any rights whatsoever?

Speech but not contract. Speech but not the reproductive organs. “All my life,” Holmes said, “I have sneered at the natural rights of man.”

(The son is lionized, the father is neglected. Oliver Wendell Holmes Sr. was a physician, poet and essayist, professor of anatomy and physiology at Harvard Medical School, a pioneer of the bacterial theory of disease, author of the still-entertaining miscellany The Autocrat of the Breakfast Table and the greatest poem ever written about engineering, “The Wonderful One-Hoss Shay,” in which more wisdom can be found than in his son’s complete works.)

(Update: Jim Ryan thinks it’s possible to abandon rule-based reasoning without becoming an intuitionist, which he agrees is just another name for never having to give reasons, and argues for this here. I answer him here.)

(Another: The Man Without Qualities comments. He persuasively reads “The One Hoss-Shay” as being about the collapse of American Protestantism. And so it is, at the level of the tenor. At the level of the vehicle, however — the literal vehicle in this case — it’s about engineering. But this is yet another subject I can’t cover in a parenthesis. Walter Olson also comments.)

(Correction: Damien Sinnott kindly pointed out that Buck v. Bell was 8-1, not unanimous, and this has been corrected in the text.)