Tag: natural rights

Justice Scalia’s Devilish Heart

Supreme Court Justice Antonin Scalia’s recent interview with New York magazine has gotten a lot of attention, but for the wrong reasons. Many reactions center on his “shocking” revelation that he believes in the existence of the Devil. (Does it take a secular Jew to point out that this standard Catholic doctrine should be no more shocking than the belief that there’s a hell in addition to a heaven?) Better-informed observers will note with surprise the acerbic jurist’s repudiation of his “fainthearted originalism.” Nowadays, he said, he tries to be a “stouthearted” originalist, one who is willing to “take the bitter with the sweet.”

That approach to interpreting the Constitution would be a refreshing break with Scalia’s past, for his is not the track record of a consistent originalist. Yes, the good justice has been faithful and true to the original understanding of the Constitution’s terms in many cases – standing firm against Obamacare’s audacious expansion of federal power in NFIB v. Sebelius, for instance. Yet his heart was much less stout in the 2010 case of McDonald v. Chicago, which extended the right to keep and bear arms to the states. In that case, Scalia fell back on the Fourteenth Amendment’s Due Process Clause – and the very doctrine of “substantive due process” on which he has himself heaped such scorn – to “incorporate” the Second Amendment against the states.

A real originalist would have taken Justice Clarence Thomas’s tack, resurrecting the long-neglected Privileges or Immunities Clause. That Clause was widely understood at the time of the Fourteenth Amendment’s ratification in 1868 to empower the federal government to stop states from violating the rights of recently freed slaves, and by extension of all Americans. Yet in the Slaughterhouse Cases of 1873, the Supreme Court ruled that the Clause didn’t restrict states’ police powers, but instead implicated only the rights attendant to U.S. (as opposed to state) citizenship.

That ruling, which unfortunately was never overturned, prompted later courts to resort clumsily to the questionable substantive due process doctrine to secure individual rights against the states. (To be sure, there has to be some substance to the Due Process – kangaroo courts don’t satisfy constitutional requirements – but that wasn’t the provision intended to secure natural rights.) By reviving the Privileges and Immunities Clause, the Court could have put those rights on a much sounder textual footing and return federal constitutional law in this area to its original meaning. Instead, Scalia took the easy way out and “acquiesced” in a 140-year-old precedent “as much as I think it’s wrong” (quotes from the McDonald oral argument). The mind boggles.

Justice Scalia has written, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” If his jurisprudence is any indication, however, getting originalism’s loudest champions to adhere to it consistently seems to be no easier. 

H/t Josh Blackman, with whom I’ve previously written about Scalia’s weak heart and the proper way to extend the right to keep and bear arms to the states.

Defending the Right to Public Presence

The essential distinction between “private” and “public” property is the egalitarian nature of the latter. There’s no true equality in private property: its owners are free to set whatever restrictions on its use they wish.

On the other hand, public property, especially public fora such as sidewalks, parks, and roads—which have traditionally been available for public speeches, protests, and rallies—is entirely different. Just as we’re all equal in a court of law, or at the ballot box, we’re all supposed to be equal in our freedom to use and enjoy public spaces.

In 2008, however, Massachusetts turned this understanding on its head, declaring that in certain public spaces, some people are more equal than others. The state passed a law making it a crime to physically come within 35 feet of abortion clinics unless you’re a clinic patient, staff member, or government agent, or are using a public road or sidewalk to travel past the clinic. By the state’s own admission, the law was designed to prevent anti-abortion advocates from engaging in “sidewalk counseling.”

When a group of peaceful anti-abortion advocates challenged the law as a violation of their free speech rights, the district and circuit courts accepted the state’s argument that the law was valid as a content-neutral regulation of the time, place, and manner in which the public may engage in free speech. The Supreme Court has now taken up the case, and the petitioners argue that a law designed to target one type of speech, in one type of location, cannot be considered content- or viewpoint-neutral.

While this is indeed an important test-case for the First Amendment, Cato filed an amicus brief in support of the petitioners to present a separate point. The Fourteenth Amendment’s Due Process Clause protects certain fundamental rights against government infringement: rights that are essential to the enjoyment of the freedoms protected by the Bill of Rights, or that are part of the meaning of “ordered liberty,” or that are part of America’s history and traditions.Regardless of your preferred formulation for these protected rights, we argue that one of them is the right to public presence: the right to peacefully use public property in any manner that doesn’t harm others or unreasonably restrict their freedom to use that same public space.

Cato’s Eternal Vigilance

Today is Constitution Day, when all educational institutions are supposed to teach something about our founding document and when all citizens should think about the liberty that is so precious, but that requires, as Jefferson said, eternal vigilance.  We at Cato celebrate Constitution Day with our annual symposium – this year held yesterday so as to accommodate Yom Kippur, which begins tonight – and by releasing the Cato Supreme Court Review, the nation’s first in-depth review of the Supreme Court term just ended.

We’ve now had nine such conferences – which take place about two and a half months after the previous term concludes and two weeks before the next one begins – and published nine such volumes.  We are proud of the speed with which we publish the Review – authors of articles about the last-decided cases have little more than a month to provide us full drafts – and of the tome’s accessibility, at least insofar as the Court’s opinions allow for that.  Both the book and the conference are intended for everyone from lawyers to educated laymen and interested citizens.

I hope that our Constitution Day event and the Review’s collection of essays will deepen and promote the Madisonian first principles of our Constitution, giving renewed voice to the Framers’ fervent wish that we have a government of laws and not of men.  In so doing, we hope also to do justice to a rich legal tradition in which judges, politicians, and ordinary citizens alike understood that the Constitution reflects and protects the natural rights to life, liberty, and property – including The Right to Earn a Living, to quote the title of a new book by my friend and Cato adjunct scholar Timothy Sandefur (for which we’re having a Hill briefing today and book forum Monday) – and serves as a bulwark against the abuse of government power.

In this uncertain time of individual mandates, endless “stimulus,” financial “reform,” and general overreach, it is more important than ever to remember our Constitution’s roots in the Enlightenment tradition.