Do I contradict myself?
Very well then I contradict myself
(I am large, I contain multitudes.)
Walt Whitman
Paul Ryan: Libertarian Republican?
Tucker, who runs Laissez-Faire Books, makes this comment about libertarians:
As the libertarian movement matured, the usual fate befell the institution: factionalism. It seems to happen to many institutions in this world. They become far more concerned about differences among the true believers than about the bigger goal that drove the mission in the first place. As "Life of Brian" might put it, the activists of the Judean People's Front spend all their time and energy hating the People's Front of Judea – never mind the Romans.I have no doubt that libertarians (especially big-L) would reject me as one of them (e.g., my pro-life stance, a decriminalization vs. legalization position on certain drugs (which I don't believe in using), and my endorsement of Romney in the Presidential race): Sen. Rand Paul got savaged over his decision to endorse Romney instead of his dad, whom he supported until Romney had essentially clinched the nomination.
The Democratic fear-mongers are already attacking Paul Ryan, whom has admitted having read Ayn Rand and has been critical of the Fed, on his alleged link to libertarianism. It reminds me about anti-Catholic sentiment against JFK in 1960; others observed that Jack Kennedy (a womanizer, etc.) wasn't even a very good Catholic.
Libertarians have many differences with Ryan, although a few have said some positive things. Let's be clear: there's a huge difference between Ron Paul and Paul Ryan's voting records. I myself am somewhere between Ron Paul and Paul Ryan. I have taken positions against extension of the Patriot Act, I've been calling for us to streamline our foreign obligations and downsizing Big Defense as well as the rest of the government, I've been strongly pro-immigrant, and I'm for much bigger budget cuts and more aggressive entitlement reform; Ryan also voted for the Medicare prescription drug legislation and TARP, both serious departures from libertarianism.
Justice Scalia on Fox News Sunday: Some Comments
7/29/12
As familiar readers may know, I finally broke with the Democratic Party over its dishonorable attack on one of the most brilliant jurists ever nominated to SCOTUS, Robert Bork. Interestingly, as I've transitioned to a more libertarian perspective, I have found myself departing on one of the most famous issues particularly linked to to Judge Bork (and similarly to Justice Scalia): the Ninth Amendment which Judge Bork famously compared to a waterblot on the Constitution.
Let me explain I do understand the skepticism of Bork, Scalia and other jurists on the Ninth Amendment: they worry that progressive jurists could use the Ninth Amendment as a wildcard or loophole of invalidating, say, traditional laws/regulations (abortion, marriage, etc.)
I would argue that certain matters, e.g., family size, have generally been unregulated and/or unenforceable (for natural or other reasons). Some religions argue that married people should not resort to artificial means to prevent pregnancy. There may be other faith-based restrictions, e.g., the local sale of alcohol, shopping hours on days of worship, adultery or sodomy laws, etc. (I notably do not include abortion because I believe that a preborn child has an unalienable right to live, and abortion has been regulated for millennia across religions and cultures). I consider attempts to impose religious (or other group) practices a tyranny of the many.
One of the key posts that marked my more libertarian transition was in a November 2010 post:
Griswold v Connecticut, which overturned the state's law prohibition of contraceptives, is interesting because it was the one where Justice William O. Douglas' constitutional "penumbras" and "emanations" in finding a marital right to privacy. I am probably most convinced by Justice Goldberg's argument using the ninth amendment. I do think the state has a right to ensure transactions are safe and not misleading, but I generally think certain decisions, e.g., for a couple whether to have children and how many, are beyond the scope of the state. I'm less certain about any attempt to enumerate unenumerated rights under the ninth amendment.Firestone provides a good summary of the ninth amendment (my edits):
The Federalists argued that the limited powers of Congress guaranteed the freedom of the states and individuals; wrote Hamilton, "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" The Antifederalists were unconvinced and demanded that the traditional freedoms of Englishmen be guaranteed by a Bill of Rights. The Federalists countered that an enumeration of rights in such a bill would be even more dangerous, because the omission of some right would imply that it did not exist. The Antifederalists responded with the Ninth Amendment, covering the possibility of omissions. And for most of two centuries, the Ninth Amendment played no role of importance in judicial decisions. Judicial suspicion of the Ninth Amendment kept [Douglas in Griswold] from asserting a positive and unequivocal right of the citizen to be left alone by the state.
Today, we find ourselves just where the Antifederalists warned us we would be. Broad construction of the Constitution has given us a Federal government of vast scope and power. Much of the situation is due to the Civil War and its aftermath, whereby the individual states, seen by the Founders as bulwarks of liberty for their citizens against the central government, became oppressive entities instead.Wachtler notes what Bork has said beyond the waterblot:
Bork [in The Tempting of America] reasons that it is inconceivable that men who viewed the judiciary as a relatively insignificant branch could have devised, without even discussing the matter, a system, known nowhere else on earth, under which judges were given uncontrolled power to override the decisions of the democratic branches by finding authority outside the written Constitution. He concludes that the rights retained by the People are those that had been guaranteed by the various state constitutions, statutes and common law before the Constitution and Bill of Rights were adopted.As a non-lawyer, I am bothered by a legal system doesn't seem to understand government scope creep into our private home and lives (except for an enumerated list of activities), to travel between places without being tracked or impeded, etc. A lot of this seems obvious. Whereas I understand and agree with the idea that the the judiciary should not rewrite laws, the province of the legislature, I think the legislature should be similarly be restricted into intruding into daily lives. I wish that conservative jurists spent as much time addressing how a federal government intended to have limited, enumerated powers and individuals had unenumerated rights has transitioned into a federal government with virtually unbounded constraints and individual unenumerated rights have all but disappeared, and even enumerated rights like the fourth amendment has been eroded to the point that people travel at the expense of their human dignity and communications to you in the privacy of your own home can be monitored without your knowledge.
Note that I have edited the excerpts below.
WALLACE: [What is] your approach to judging, which is called textualism or originalism?
SCALIA: Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.
Exactly, the best example being the death penalty. I've sat with three colleagues who thought it was unconstitutional, but it's absolutely clear that the American people never voted to proscribe the death penalty. They adopted a cruel and unusual punishment clause at the time when every state had the death penalty and every state continued to have it. Nobody thought that the Eighth Amendment prohibited it.As someone who is pro-life, I oppose capital punishment, and it bothers me that we are the only Western democracy listed among the top 21 countries that execute their citizens. (Most of the others are Communist or Muslim.) Nevertheless, I agree as a historical fact that capital punishment existed at the start of the republic, and "cruel and unusual" refers to the nature of the execution: for example, a lingering, torturous death would qualify as "cruel and unusual".
SCALIA:[Purposivism] probably the most popular of form of interpretation in recent times. It means consulting the purpose of the statute and deciding the case on the basis of what will further the purpose. Now, textualists consult purpose as well, but only the purpose that is apparent in the very text.
I have to give you an example or you will not understand the difference. Let's assume a statute which provides that the winning party in litigation will obtain attorney's fees [instead of trial-related expenses]. The textualist would say attorney's fees was never thought to include expert witness fees.I agree. "Purposivism" is not only unduly subjective, but it creates moral hazard.
STEPHEN BREYER, U.S. SUPREME COURT JUSTICE: The Founders didn't know that commerce included airplanes. They didn't know about the Internet, or even television.
And so the difficult job in open cases where there is no clear answer is to take those values in this document which all Americans hold, which do not change. And to apply them to a world that is ever changing.
WALLACE: Is Justice Breyer wrong?
SCALIA: Yes. What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time, say, the death penalty.
WALLACE: But there are a lot of phenomena that aren't existence at the time.
SCALIA: It weren't for those. Of course, you have to decide what the meaning ought to be. But the criterion for deciding what the meaning today ought to be is what was the understood meaning as applied to criteria at the time. For example in the death penalty. They did impose death by hanging.
So, what the originalist would say is, is the electric chair more cruel and unusual than hanging was? And of course it isn't because it was adopted to be less cruel. And the same thing with lethal injection.With all due respect to Justice Breyer, this is not a respectable argument. Methods of transportation and communication have certain general characteristics. For example, a communication between a lawyer and his client should be confidential regardless of whether it's in person or by phone or email.
If the law has not kept up with technological change, it is not up to the judges to extend or patch existing law because judges are not accountable to the people.
WALLACE: There is one Supreme Court decision, reading a lot of your writings and speeches over the years, that seems to distress you more than any other. And that is Roe versus Wade, the 1973 decision that says that women have a constitutional right to abortion. You say that it is it a lie. And, in fact, while generally willing, you say, to accept long standing precedents, you say you will continue to press to overturn Roe. Question: why?
SCALIA: Well, I'm not sure if I could say this distresses me more than any other. It is in my mind the clearest example of being a non-textualist and non-originalist. No one ever thought that the American people ever voted to prohibit limitations on abortion. I mean, there is nothing in the Constitution that says that.
WALLACE: What about the right to privacy that the court found in known 1965?
SCALIA: There is no right to privacy. No generalized right to privacy.
WALLACE: Well, in the Griswold case, the court said there was.
SCALIA: Indeed it did, and that was -- that was wrong. In the earlier case, the court had said the opposite. Look, the way the Fourth Amendment reads that people shall be secure in their persons, houses, papers and effects against unreasonable searches and seizures.
And the first time my court had a case involving wiretapping. It said that's not covered by the Fourth Amendment. There can be state laws against it and most states had laws. But it's not persons, houses, papers and affects is not covered by the Fourth Amendment. The court reversed that, I don't know, 20 years later or so in a wave of non-originalism. Constitution means what it ought to mean. Well, it simply doesn't cover that, which means that it's left to -- it's left to democratic choice, as most things are, even important things like abortion.As I have put it, issues like marriage and abortion are not new issues but have existed and been regulated for thousands of years. For me, abortion is an act of aggression against a preborn child and hence is not a matter of "privacy"; however, states have generally exercised police power and decide when and how to enforce any relevant law.
Scalia is flatly wrong: there is a right to privacy, to be left alone, to engage in consensual sexual behavior between consenting adults, to make certain changes to one's body, etc. It is true that it's not an enumerated right, but it's difficult to know how to interpret the fourth amendment unless there wasn't some general presumption of privacy.
I am troubled by Scalia's interpretation of "persons, houses, papers, and effects". He seems to be presuming the interests of the state versus individual, while the presumption should be on behalf of individual liberty. I see the fourth amendment as more of an attempt to flesh out matters of search, not an exclusive list.
Let me provide a scenario to make my point. Suppose the British had wanted evidence of the local resistance among colonists and dispersed soldiers to live in colonist homes without their knowledge or consent. The British troops later testify to eavesdropped treasonous conversations. I believe that the Bill of Rights was intended to guard against any such objectionable fishing expedition by the government.
I see a conversation as property, as a form of "papers and effects"; I find it curious that Scalia whom agreed to consider electric chairs in the same category as hanging for purposes of the death penalty doesn't include a phone call transcript covered by the fourth amendment. Another blogger makes a similar point:
The meaning of "papers and effects" in 1791 included all personal journals, correspondence, legal agreements, and records. In keeping with the Fourth Amendment, no agent of the government should be allowed to obtain or view materials such as telephone records; emails; internet logs; written correspondence; financial, legal and medical records; or other private records or communications without a warrant properly issued by the judiciary branch. Warrantless surveillance of citizens must be absolutely prohibited.
Musical Interlude: My Favorite Groups
Frankie Valli and the Four Seasons, "Who Loves You"
