Reason Magazine - Contributors

Progressive Insurance

droot@reason.com (Damon W. Root) — Wed, 12 Nov 2008 15:00:00 EST

Does the election of Barack Obama represent the triumph of progressivism and the end of libertarianism? Many on the left seem to think so. Obama's victory, argued blogger Matthew Yglesias, represents a "resounding victory for progressive ideals." The "old assumptions of free-market fundamentalism," declared The New Yorker's George Packer, "have, like a charlatan's incantations, failed to work."

But what the current vogue for the term progressive fails to acknowledge is that the original progressives embraced the worst abuses of state power in the late nineteenth and early twentieth centuries. Libertarians, by contrast, stood as consistent defenders of individual liberty in all spheres of human life.

Consider the Jim Crow South. As historian David Southern has written, disfranchisement, segregation, race baiting, and lynching all "went hand-in-hand with the most advanced forms of southern progressivism." Plessy v. Ferguson (1896), the Supreme Court decision that enshrined the doctrine of "separate but equal" and serves as perhaps the most potent symbol of the Jim Crow regime, dealt with a Louisiana law forbidding railroads from selling first-class tickets to black customers. That's not the free market making life worse. It's the government.

Moreover, as economist Tim Leonard points out, progressives believed in a "powerful, centralized state, conceiving of government as the best means for promoting the social good," a belief that directly contributed to the widespread progressive support for eugenics, racial collectivism, and various coercive "reforms." Progressive darling Theodore Roosevelt, for instance, held notoriously racist and imperialist views, including the notion of "race suicide," which held that the white race faced the risk of being out bred by its "little brown brothers." He also believed that the 15th Amendment should never have been ratified since the black race, in his words, was "two hundred thousand years behind" the white.

In opposition to all that stood libertarians like Moorfield Storey, the great lawyer and activist who helped found both the National Association for the Advancement of Colored People (NAACP) and the Anti-Imperialist League. A proponent of the gold standard and laissez-faire economics, Storey argued and won the NAACP's first victory before the Supreme Court, a 1917 decision that relied on a defense of property rights to squash a residential segregation law.

The New Deal-era saw some heroic resistors as well. Among them was Supreme Court Justice George Sutherland, one of the "Four Horsemen of Reaction" (along with Justices James McReynolds, Pierce Butler, and Wiliam Van Devanter), so named for reliably voting against New Deal regulations. An advocate of property rights and liberty of contract, Sutherland was also an outspoken defender of women's rights who, as a U.S. Senator from Utah, introduced legislation that became the 19th Amendment.

In his majority opinion in Adkins v. Children's Hospital (1923), one of the precedents later overturned by the New Deal Court, Sutherland struck down Washington, D.C.'s minimum wage law for women, arguing that it violated their liberty of contract under the 14th Amendment. As historian Jim Powell observed, this law had thrown numerous women out of work, including elevator operator Willie Lyons, one of the figures in the case, who was promptly fired and replaced by a man willing to work at her old wage. In his majority opinion, Sutherland denounced the law for encouraging such perverse consequences. "Surely the good of society as a whole," Sutherland wrote, "cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members."

Sutherland's most famous vote, however, arguably came without comment in Schechter Poultry Corp. v. United States, the 1935 decision that struck down the National Recovery Administration (NRA), which at that point was the centerpiece of the New Deal. Specifically, NRA price controls and other "codes of fair competition" had made it illegal for the Schechter brothers, who maintained a small Kosher slaughterhouse in New York, to set their own prices and let their customers pick out their own chickens. (Similarly, dry cleaner Jacob Maged would spend three months in jail in 1934 for charging 35 cents to press a suit, rather than the NRA-mandated 40 cents.)

"Extraordinary conditions may call for extraordinary remedies," Chief Justice Charles Evans Hughes held for the unanimous Court. "But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional powers." The NRA was finished.

But Roosevelt, who denounced the ruling for its "horse and buggy definition of interstate commerce," would have the last laugh. Two years later (two months after FDR threatened to "pack" it with more sympathetic justices, in fact) the Court overruled Sutherland's Adkins decision to uphold another minimum wage law for women, arguing this time that the state had a duty to "preserve the strength and vigor of the race" by protecting current and future mothers—a line that hasn't exactly sat well with feminist legal scholars. As historian William E. Leuchtenburg put it, "the Court was now stating that local and national governments had a whole range of powers that this same tribunal had been saying for the past two years that these governments did not have."

From that point on, the Supreme Court proved ready and willing to defer to FDR's vision for the country. Which might sound great to today's progressives, until they recall that FDR ordered the wartime internment of Japanese Americans, an executive action that the pliant Supreme Court upheld in Korematsu v. United States (1944). Sutherland, who died in 1942, at least did what he could to oppose the Rooseveltian juggernaut.

Indeed, as Sutherland and Storey's careers demonstrate, libertarian ideas have long served as a crucial check against the illiberal impulses of progressive majorities. The Jacob Weisbergs of the world notwithstanding, libertarianism matters now more than ever.

Damon W. Root is an associate editor of reason.

Sign Your Life Away

droot@reason.com (Damon W. Root) — Wed, 29 Oct 2008 15:00:00 EDT

Prior to 2006, few Americans had much reason to think about presidential signing statements. That changed with the passage of H.R. 2863 on December 30, 2005. Also known as the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, this awkwardly named bill featured the so-called McCain Amendment, which prohibited "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government."

At the time, its passage was seen as a major victory against the use of waterboarding and other forms of torture by U.S. forces. But on the same day he signed the law, President George W. Bush also issued a signing statement declaring that he would only implement the McCain Amendment "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power."

Three months later, after signing the USA Patriot Improvement and Reauthorization Act in a well-publicized White House ceremony, Bush issued another important signing statement. This time he declared that the executive branch was in no way bound by those provisions requiring congressional oversight of the FBI's new surveillance powers, since such oversight "could impair...national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

President Bush, in other words, would be waging the War on Terror as he saw fit, regardless of what Congress or the courts had to say about it. As Charlie Savage reports in his superb 2007 book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Bush has issued hundreds of similar statements claiming his authority to reject or ignore more than 1,000 sections of federal law—the very laws, it's worth repeating, that Bush has just signed. Such documents, Savage writes, "left it to legal specialists to point out in plain English that Bush was claiming that only the parts of the bill that expanded his power were constitutional, essentially nullifying the parts of the bill that checked those new powers."

The U.S. Constitution, of course, already provides the president with a crucial check on the legislative branch: It's called the veto. Nowhere in our founding documents, however, does the president receive the authority to pick and choose which laws he's going to obey.

Thankfully, George W. Bush won't be president much longer. But the executive powers he helped forge will still be around. Is there any reason to think his successor will be much better?

Not really. Last December, the Boston Globe quizzed all of the major party candidates about executive authority. With less than a week before the election—and with qualms about presidential power apparently forgotten in the frenzy to bring about hope, change, and the nationalization of Wall Street—it's useful to revisit what Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) had to say about signing statements.

For what it's worth, McCain gave one of the best responses of his campaign: "As President, I won't have signing statements. I will either sign or veto any legislation that comes across my desk." It's hard to improve on that, though as reason's Jacob Sullum has noted, "his campaign has indicated that McCain's view of the president's authority is broad enough to permit violation of statutes governing surveillance of people in the United States."

Obama proved a little harder to pin down. On the one hand, he told the Globe it was "a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability." But he also added this: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives." No one? And what's the difference between making an "end-run" around legislation and protecting the "constitutional prerogatives" of the president? Bush clearly saw his actions as appropriate, not as some sort of dodge. What's to stop Obama (or anybody else) from doing the same?

It's not like this is a partisan issue. Democratic President Bill Clinton, for instance, issued signing statements undermining 140 sections of federal law—at that point, the second largest amount in American history. In a November 1993 memo prepared for Clinton White House counsel Bernard Nussman, moreover, Assistant Attorney General Walter Dellinger endorsed this approach. "If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers," Dellinger wrote, "then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing." Therefore, Dellinger continued, "a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce...such a provision, can be a valid and reasonable exercise of Presidential authority."

With a cooperative Democratic Congress on his side, Obama probably won't need to use signing statements. But what happens if the Republicans regroup, regain the majority, and offer an agenda of their own? At that point, Obama will have every incentive to emulate the Clinton administration and use signing statements to protect his "constitutional prerogatives" against a Republican Congress.

At that point, of course, it'll be conservatives howling about an imperial presidency and liberals rallying around the executive. How far does the president have to go before both sides agree to rein him in? Perhaps it's better if we don't find out.

Damon W. Root is an associate editor of reason.

Restoring the Second Amendment

droot@reason.com (Damon W. Root) — Tue, 07 Oct 2008 15:00:00 EDT

For nearly 10 years, the case of Nordyke v. King has been winding its way through the California courts. At issue is a 1999 Alameda County ordinance banning the possession of firearms on county-owned property, a law enacted primarily to keep gun shows out of the county fairground. To date, the case has been heard by the district court, the California Supreme Court, and the U.S. Court of Appeals for the Ninth Circuit, where gun show promoters Russell and Sallie Nordyke have so far proven unsuccessful in their fight to overturn the law.

But that was before District of Columbia v. Heller (2008), the U.S. Supreme Court's landmark decision holding that the Second Amendment protects an individual right—not a collective one—to keep and bear arms. As Justice Antonin Scalia wrote for the majority, the Second Amendment protects the right "to use arms for the core lawful purpose of self-defense." One question Heller did not answer, however, is whether the Second Amendment applies just to the federal government (which oversees Washington, D.C.) or to state and local governments as well.

Nordyke, it now appears, might help with the answer. Last week, four preeminent legal scholars—Michael Kent Curtis, Richard Aynes, Michael Lawrence, and William W. Van Alstyne—filed a friend of the court brief arguing that the 14th Amendment "and specifically its privileges or immunities clause were designed to forbid states from abridging fundamental rights of citizens, including those rights in the Bill of Rights." The Second Amendment, of course, is right there on that list.

As the four professors demonstrate, the text of the amendment, the historical events leading to its adoption, the goals of its framers, and the statements of purpose made both by its supporters and by those who ratified it, all point in the exact same direction: The 14th Amendment was designed to nationalize the Bill of Rights and other fundamental rights.

The amendment's origins lie in the anti-slavery politics that gave rise to the Republican Party. After the Civil War, as the former Confederate states began passing Black Codes and other restrictions on the political, economic, and civil rights of African Americans and their white allies, the Radical Republicans of the 39th Congress responded with federal civil rights laws and a constitutional amendment to give them force.

One of the leading figures in this movement was Rep. John Bingham of Ohio, the author of the 14th Amendment's crucial first section, which reads in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In a speech before the House, Bingham explained that, "the privileges and immunities...are chiefly defined in the first eight amendments to the Constitution." Similarly, Sen. Jacob Howard of Michigan, who presented the amendment to the Senate, described its purpose as "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms." As Michael Kent Curtis writes in his book No State Shall Abridge, both Bingham and Howard "clearly said that the amendment would require the states to obey the Bill of Rights. Not a single senator or congressman contradicted them." (Italics in original.)

For its part, Alameda County currently maintains that, "the Second Amendment constrains only Congress," while the amendment's core purpose of "self-preservation...is best advanced through the establishment and exercise of the police power." Which means that while Congress may not legally disarm the American people, state and local governments may.

As evidence, the county offers page after page justifying its interpretation of the Second Amendment. But there's nothing, not a single word, about the history, purpose, or meaning of the 14th Amendment. The county's lawyers might at least have cited former federal appeals court Judge Robert Bork, who has argued that "the intended meaning" of the Privileges or Immunities Clause "remains largely unknown," that "it is quite possible that the words meant very little to those who adopted them." In Bork's view, the federal courts have no business locating rights in such "vague" or "silent" language.

There's actually nothing vague about it, as the professors' brief aptly demonstrates. For instance, the phrase privileges and immunities has long been accepted as a legal term of art, employed by no less an authority than William Blackstone in his 1765 Commentaries on the Laws of England, where he defined it as a combination of civil rights and natural rights. Similarly, James Madison and other Founders used the words privileges and rights interchangeably.

Indeed, the real trouble with Nordyke v. King is that the Alameda County ordinance seems to fall so comfortably within the range of acceptable gun control laws spelled out in Heller, including "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The same can't be said for the gun rights case currently underway in Chicago, however, where that city's ban looks very much like the one struck down in Washington, D.C. In any case, the overwhelming historical evidence submitted here is certain to be a major factor when the courts finally get around to restoring the Second Amendment to its rightful place among the Bill of Rights.

Damon W. Root is an associate editor of reason.

Zoning Toward Oblivion

droot@reason.com (Damon W. Root) — Fri, 26 Sep 2008 07:00:00 EDT

The Zoning of America: Euclid v. Ambler, by Michael Allan Wolf, Lawrence, Kan.: University Press of Kansas, 208 pages, $35/$16.95 paper.

On June 23, 2005, the U.S. Supreme Court announced one of its most notorious and divisive decisions in recent memory: Kelo v. City of New London. At issue was the Connecticut town’s use of eminent domain to seize several private homes and commercial lots on behalf of the Pfizer Corporation, which had already built a large research complex nearby and intended to erect offices and research facilities on and around the residential properties.

Writing for the five-member majority, Justice John Paul Stevens argued that New London’s redevelopment project qualified as a “public use” under the Fifth Amendment because the city was seeking to provide “appreciable benefits to the community,” including “new jobs and increased tax revenue.” Toward that end, it had drafted a “comprehensive redevelopment plan” and was “endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts.”

As a precedent for this holding, Stevens cited Euclid v. Ambler, a 1926 case known mostly to law students, their professors, and city planners. As the legal scholar Michael Allan Wolf argues in The Zoning of America, his illuminating and richly detailed new book on the case, Euclid was one of the most far-reaching Supreme Court decisions of the last century. “If not for that key 1926 decision,” he writes, “most Americans would not be living in ‘zoned’ cities.”

At the heart of the case was Euclid, Ohio, an eastern suburb of metropolitan Cleveland. In 1922 Euclid’s village council unanimously adopted a sweeping new plan that regulated the height, area, and use of all structures built on the land within its borders. As the law’s preamble declared, village residents sought “to preserve the present character of said Village and the public improvements therein, to prevent congestion, and to promote and provide for the health, safety, convenience, and general welfare of the citizens thereof.”

Among other things, the ordinance forbade the operation of veterinary hospitals, slaughterhouses,
tanneries, and stockyards within Euclid’s limits. In general, the ordinance sought to minimize industry, apartment buildings, and the mixing of commercial and residential uses; it favored single-family homes surrounded by small lots—in other words, suburban living as we know it today.

The ordinance sailed through the village council, but not every landowner in town was thrilled. Foremost among the malcontents was the Ambler Realty Company, owner of a 68-acre tract intended for sale and development to meet the industrial and commercial needs of rapidly growing Cleveland. According to Ambler’s attorneys, the effect of the ordinance was to “so limit, restrict and control the lawful use of its said lands as to confiscate and destroy a great part of the value thereof.”

Prospective buyers would be “unwilling to consider land as to which it will be necessary for them to conduct burdensome and expensive litigation in order to vindicate their right to subject it to lawful and legitimate uses.” The ordinance, Ambler concluded, deprived it and other landowners of their property rights without due process of law, in violation of the 14th Amendment. Within six months, Ambler Realty was spearheading the legal challenge that ultimately made its way to the nation’s highest tribunal.

The Supreme Court rejected Ambler’s claims, ruling six to three in favor of Euclidian zoning. “The
exclusion of buildings devoted to business, trade, etc., from residential districts,” Justice George Sutherland wrote for the majority, “bears a rational relation to the health and safety of the community.” This “rational basis” test is far less demanding than the “strict scrutiny” applied to government actions that impinge on “fundamental rights” such as freedom of speech; in those cases, the government has to prove that its actions are narrowly tailored to meet a necessary state interest.

Sutherland was signaling the Court’s deference to local authority, its unwillingness to substitute its
judgment for the decisions reached by the village council after public hearings and careful deliberation. “If the validity of the legislative classification for zoning purposes be fairly debatable,” Sutherland said, “the legislative judgment must be allowed to control.”

Wolf, who teaches local government law at the University of Florida, traces the case from its origins in Cleveland’s earliest suburban stirrings to its impact on urban planning today. As Wolf notes, Euclid v. Ambler was always about far more than the height of someone’s house or the number of businesses permitted on a particular block. The real issue was “the essentially American give-and-take between private need and public benefit, between government obligations and individual rights.” It was a question of the state’s power to regulate for the health, welfare, safety, and morality of its residents vs. the individual’s right to life, liberty, and property. “For eight succeeding decades,” Wolf writes, Euclid “would provide the legal impetus not only for comprehensive planning and zoning but also for a broad array of local, state, and federal statutes, ordinances, and regulations designed to make the nation’s communities more livable, safe, healthy, aesthetically pleasing, and self-sufficient.”

Although he gives a fair hearing to both sides of the dispute, Wolf makes no secret of his sympathy for the village council and his support for the Supreme Court’s decision, describing the ruling as “a model of pragmatic and well-balanced Progressive jurisprudence.” It was also a necessary step on the road to New Deal economic regulations and today’s environmental protections.

Wolf is not blind or indifferent, however, to the adverse consequences of Euclid. He devotes a full chapter to “the negative side of zoning that has always threatened its overall benefit to society.” He notes several ill effects from the Court’s endorsement of zoning, including legal exclusion of undesirable groups, collusion between business and government to drive out and keep out competition, and land use restrictions based solely on subjective aesthetic standards.

These are all valid objections, but Wolf does not assign them enough weight in his overall calculus.
Take the exclusion of undesirables. Since well before 1926, zoning and proto-zoning ordinances have been used to legally separate, harass, or exclude various unpopular groups, including African Americans, recent immigrants, Muslims, gays, and assorted religious minorities.

To take just one of many examples, in 1870 California passed a law requiring every lodging house in the state to provide a minimum of 500 cubic feet of air for every inhabitant. While the legislation did not mention race or ethnicity, it was obviously aimed at the state’s Chinese immigrants, particularly men living in San Francisco’s crowded Chinatown, which just happened to be almost the only place where the law was enforced.

Then, when it turned out that men prosecuted under the law typically accepted short jail terms rather than paying fines, San Francisco’s Board of Supervisors mandated that jailers cut the hair of every male prisoner to the length of one inch. Many Chinese at the time wore their hair in long braids. The ordinance thus served to further harass and humiliate an already victimized and despised minority.

More recently, the New Jersey Supreme Court ruled that Mount Laurel’s land use restrictions, which included a ban on mobile homes, discriminated against blacks and other disadvantaged groups. “Papered over with studies, rationalized by hired experts, the ordinance at its core is true to nothing but Mount Laurel’s determination to exclude the poor,” the majority declared in a 1983 decision.

For Wolf, zoning laws themselves aren’t the problem. The problem is that such laws sometimes fall into “the hands of less enlightened public officials.” But that’s a common and inadequate response to all sorts of government malfeasance. Let’s test it against the career of America’s most accomplished city planner, New York’s Robert Moses.

As biographer Robert Caro notes in his indispensable portrait, The Power Broker (1974), Moses, who held numerous unelected positions, including New York City parks commissioner and chairman of the Triborough Bridge and Tunnel Authority, built hundreds of playgrounds, tennis courts, and baseball diamonds in New York City; carved out hundreds of thousands of acres of parks throughout New York state; put up thousands of apartment buildings and public housing projects; laid tens of thousands of miles of highways and parkways; erected the United Nations and New York’s Lincoln Center for the Performing Arts; and constructed vast bridges connecting Manhattan and its boroughs to each other and to the mainland of the United States. He personally conceived and completed public works projects costing $27 billion in 1968 dollars, which would be nearly $168 billion today.

Yet for all those accomplishments, including the parkway, power dam, and other structures that bear his name, not to mention the company he kept with mayors, governors, and U.S. presidents, Moses was a villain to as many as half a million citizens, most of whom were poor, black, or brown, who watched Moses send his bulldozers, blasting crews, and wrecking balls to destroy their homes, churches, and businesses. “To clear the land for these improvements,” Caro writes, Moses “evicted the city’s people, not thousands of them or tens of thousands but hundreds of thousands, from their homes and tore the homes down. Neighborhoods were obliterated by his edict to make room for new neighborhoods reared at his command.”

Zoning ordinances alone didn’t provide Moses with the muscle needed to accomplish all of this, but
such laws undoubtedly played their part in driving out residents or businesses that stood in his way, both by harassing those who held on and by remaking their neighborhoods for the worse. The Supreme Court’s decision in Euclid v. Ambler played a role too, throwing the door wide open for the bulldozers of urban renewal while simultaneously affording city planners far more than the mere benefit of the doubt. Planners and the developers they worked with now had the implied consent of America’s highest court.

Which brings us back to the eminent domain abuse at the heart of the Kelo case. For many observers at the time, New London’s plans were so far out of constitutional bounds as to beggar belief. How could it possibly be OK for the government to seize somebody’s house and give the land to a powerful private interest? But as Wolf ’s account of the Euclid case makes clear, the Kelo Court approached the issue with eight decades of deference to “comprehensive” urban planning under its belt.

Despite all the conservative complaining you hear about the evils of judicial activism, it would have required an activist Court to save those homes in New London. As the libertarian legal scholar Richard Epstein has observed, ruling against the city would have required the Court to “take an activist stance by striking down a comprehensive plan that had survived endless rounds of public hearings.” Which is precisely why Justice Stevens (along with Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Anthony Kennedy) didn’t interfere with the redevelopment project, just as the Ambler majority didn’t nullify Euclid’s zoning law. In both cases, the Court ruled that local officials were entitled to a presumption of constitutionality that trumped the claims of property owners who believed their rights had been violated.

The Zoning of America does much to clarify these and other issues. For anyone wondering how the Supreme Court could get things so wrong in Kelo, or how the Robert Moseses of the world could play such a monumental role in the death and life of great American cities, this informative and well written book is an excellent place to start.

Damon W. Root is an associate editor of reason.

In Defense of Judicial Activism

droot@reason.com (Damon W. Root) — Tue, 23 Sep 2008 12:00:00 EDT

Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights. For instance, in his dissent in Lawrence v. Texas (2003), where the majority nullified a state law banning homosexual activity, Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new ‘constitutional right' by a Court that is impatient of democratic change." Indeed, "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."

Look up Scalia's dissents in cases as different as Planned Parenthood v. Casey (1992), where the majority upheld abortion rights, or Boumediene v. Bush (2008), where the Court recognized habeas corpus rights for enemy combatants, and you'll find similar arguments. As Scalia likes to say, when the Constitution is vague or unclear, the courts should let the people, via their elected representatives, have their way.

So it's no small matter that one of the country's most prominent conservative judges is now criticizing Scalia for being a judicial activist. In a provocative new article forthcoming from the Virginia Law Review, federal appeals court Judge J. Harvie Wilkinson III surveys Scalia's recent handiwork in the landmark gun rights case D.C. v. Heller (2008) and finds it seriously lacking. "Heller," Wilkinson writes, "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts."

(Story continues after video box)

Click above to watch Damon W. Root's August 26 comments on John McCain's and Barack Obama's Supreme Court pandering during Rev. Rick Warren's Saddleback Forum.

In fact, Wilkinson compares Scalia's opinion in Heller to the Court's recognition of abortion rights in Roe v. Wade (1973), which is about the worst thing one judicial conservative could say to another. In Wilkinson's view, Heller grounded a debatable right in an ambiguous piece of constitutional text, it opened the door to decades of future litigation, it disregarded clear legislative preferences, and it aggrandized the judiciary at the expense of the other branches and the people—"the same sins," he argues, that made Roe so odious.

Wilkinson certainly has a point. Following Scalia's own rhetoric of modesty and restraint, why should the Supreme Court substitute its wisdom for that of the local officials directly accountable to the inhabitants of Washington, D.C.? What makes handgun bans and mandatory trigger locks clearly unconstitutional but not other "longstanding prohibitions," to borrow Scalia's phrase? More importantly, why entangle the federal courts in the political thicket at all? As Justice John Paul Stevens noted in his dissent, "no one has suggested that the political process is not working exactly as it should in mediating the debate between advocates and opponents of gun control."

That's the key point (though Scalia is typically the justice making it). With rare exception, judicial restraint means letting the majority rule. Wilkinson, who clearly disapproves of D.C.'s gun ban, is at least consistent about it. But the whole point of the judiciary is to actively police the other branches, to act, as James Madison put it, as "an impenetrable bulwark against every assumption of power in the legislative or executive."

Wilkinson gets that exactly backwards, writing, "The largest threat to liberty still lies in handing our democratic destiny to the courts." But in fact, the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights.

Take Pierce v. Society of Sisters (1925). At issue was an Oregon initiative, which had been spearheaded by the Ku Klux Klan and other anti-Catholic groups, requiring that all children between the ages of eight and 16 attend public school. In his opinion for the unanimous Court, Justice James McReynolds declared that, "the child is not the mere creature of the state" and nullified Oregon's law for unreasonably interfering "with the liberty of parents and guardians to direct the upbringing and education of children under their control."

Under Wilkinson's vision of judicial restraint, however, the Court somehow got it wrong in Pierce yet got it right in Korematsu v. United States (1944), where it deferred to President Franklin Roosevelt, upholding his wartime internment of Japanese Americans. In both cases, Wilkinson's argument is that if the voters have a problem, they should turn to the ballot box, not the courts.

If anything, such examples confirm that the last thing we need is more or better judicial restraint. What we need is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power. Too bad neither the right nor the left seem very interested in that.

Damon W. Root is an associate editor of reason.

Straight Talk Slowdown

droot@reason.com (Damon W. Root) — Tue, 09 Sep 2008 12:45:00 EDT

Speaking last Thursday at the Republican National Convention, Sen. John McCain (R-Ariz.) received a roar of approval after declaring his support for "judges who dispense justice impartially and don't legislate from the bench." Similarly, at the recent Saddleback Forum hosted by bestselling self-help author Rick Warren, McCain cited "the criteria of a proven record of strictly adhering to the Constitution of the United States and not legislating from the bench" as his standard for selecting a potential Supreme Court justice. His official website goes even further, stating: "John McCain believes that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives."

Given the strength of such rhetoric, which seems clearly designed to shore up support among conservatives, it's notable that McCain hasn't made more noise about Sen. Barack Obama's (D-Ill.) choice of running mates. After all, as chairman of the Senate Judiciary Committee from 1987 to 1995, Sen. Joe Biden (D-Del.) played a central role in perhaps the two most controversial events in modern judicial history: the Supreme Court confirmation hearings of Judges Robert Bork and Clarence Thomas.

Bork, a federal appeals court judge and former solicitor general in the Nixon administration, was nominated by President Ronald Reagan in 1987 to fill the vacancy created by retiring Justice Lewis Powell. As Bork sees it, he faced unprecedented opposition from desperate left-wing groups aided and abetted by the Judiciary Committee's leading liberals, Sen. Biden and Sen. Ted Kennedy (D-Mass.). In his book The Tempting of America (1990), Bork describes the Biden Report, a legal brief prepared for Biden that critiqued Bork's views on issues ranging from abortion to executive power, as having "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."

Four years later, Biden was in the thick of it once more, overseeing the confirmation of Clarence Thomas to replace Justice Thurgood Marshall. Though today the Thomas hearings are remembered almost exclusively for the sexual harassment charges leveled by Anita Hill, Biden actually kicked it off by trying to discredit Thomas as a wild-eyed libertarian. Among other things, Biden waived around a copy of Richard Epstein's landmark book, Takings (1985), which argues that under the Fifth Amendment the government must pay just compensation to property holders affected by certain regulations, demanding to know if Thomas agreed with the book's content. As Epstein later told reason, "I took some pride in the fact that Joe Biden held a copy of Takings...and said that anyone who believes what's in this book is certifiably unqualified to sit in on the Supreme Court. That's a compliment of sorts."

Clarence Thomas is a bit less charitable. In his recent memoir My Grandfather's Son (2007), he alleges that Biden was intentionally dishonest throughout their dealings, claiming that the senator told him, "since I'd be nervous at first, he would start the questioning with a few ‘softballs' that would help me relax and do my best." Instead, as Thomas recounts it, Biden "threw a beanball straight at my head...[and] wrenched my words out of context."

All of which makes you wonder why the McCain camp is holding back on the Democratic VP nominee. If the judiciary is so important to conservatives, why not bring up Biden's roles in keeping Bork off the Court and in nearly derailing Thomas? Perhaps the best explanation is McCain's own record. Unlike Biden, who's been a fierce partisan on the courts for two decades, McCain is a very recent convert to the cause of conservative jurisprudence.

Audience members at the Saddleback Forum, for example, might have been surprised to learn that McCain voted to confirm Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, despite the fact that he made a point of describing each of them as the wrong sort of justice for the Court (he held up Chief Justice John Roberts and Justice Samuel Alito as his models).

Moreover, McCain was a key player in the so-called Gang of 14, the seven Republican and seven Democratic senators who joined forces in 2005 to end the Democratic filibuster of conservative judicial nominees and to forestall the Republican "nuclear option" of banning such filibusters outright. In the eyes of many conservatives, this compromise crippled the GOP's efforts and effectively killed several of the nominations. Focus on the Family leader James Dobson, for instance, cited the Gang of 14 as one of the reasons why he "will not vote for Sen. John McCain as a matter of conscience."

Which leaves McCain in the lurch. On the one hand, he needs to deliver red meat rhetoric about the courts, something that Biden's actions seem tailor-made to fit. But on the other hand, spelling out his opponent's misdeeds threatens to remind conservatives of his own. For a self-styled straight talker, it's got to be an uncomfortable spot.

Damon W. Root is an associate editor of reason.

Purpose-Driven Pandering

droot@reason.com (Damon W. Root) — Mon, 25 Aug 2008 15:00:00 EDT

A little over a week ago, presidential hopefuls Sen. Barack Obama (D-Ill.) and Sen. John McCain (R-Ariz.) subjected themselves to a mild public interrogation by America's foremost self-help guru. In back-to-back interviews conducted before his massive evangelical congregation at Lake Forest, California's Saddleback Church, Rev. Rick Warren, the author of A Purpose Driven Life and other uplifting bestsellers, quizzed the major party frontrunners on matters of politics and faith. When talk turned to the Supreme Court, things really got interesting.

"Which existing Supreme Court justice would you not have nominated?" Warren asked each candidate. McCain responded by naming all four of the Court's current liberals. "With all due respect," he told Warren, "Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens." It was a bold answer, especially given that McCain had actually voted to confirm Ginsburg, Breyer, and Souter (Stevens was nominated to the Court well before McCain's Senate career began). Warren didn't follow-up on that particular inconsistency, of course, though the reason for McCain's transformation isn't hard to guess. The Arizona maverick suddenly cares about the Supreme Court because the conservative voters he's trying to woo happen to care so much about it.

Obama's answer was even more revealing. He quickly named Justice Clarence Thomas, which at first glance isn't such a shock. Obama is the liberal candidate, after all, and he needs to signal his support for abortion rights whenever the subject of the Court comes up. And Thomas has held that Roe v. Wade (1973) should be overturned. But that wasn't how Obama justified his choice. Instead, he essentially described Thomas as an affirmative action case, telling Warren, "I don't think that he...was a strong enough jurist or legal thinker at the time for that elevation."

(Article continues below video.)

Click above to watch Damon W. Root discuss this story.

Think about that. The presumptive Democratic nominee just employed one of the most common arguments used by opponents of affirmative action: namely, that it gives preferential treatment to the under-qualified based on their race, ethnicity, or gender. (Thomas, by the way, was perfectly fit to serve at that point in his career. The American Bar Association, which evaluates every presidential nominee to the Court, declared him "qualified" after combing through his law review articles, his speeches, and the decisions he wrote as a judge for the U.S. Court of Appeals for the District of Columbia. That he was a qualified black conservative naturally sweetened the deal for President George H.W. Bush.)

Now think about this. Affirmative action is routinely defended on the grounds that it gives qualified minority candidates the shot they deserve but might not otherwise receive. As that line of argument goes, after they get their opportunity, such individuals typically prove their detractors wrong. Now, regardless of what you think about Thomas' aggressive brand of conservative jurisprudence, there's no doubt that he's proven himself a fully capable member of the Court.

In fact, he's one of the few justices today whose principles sometimes trump their politics. Consider his eloquent dissent in Gonzales v. Raich (2005), where the majority struck down California's medical marijuana law in favor of federal anti-drug laws passed under the Commerce Clause. As Thomas noted, the marijuana at issue in the case was both grown and consumed entirely within one state, which is the opposite of any coherent definition of interstate commerce. "If Congress can regulate this under the Commerce Clause," he wrote, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Fellow conservative Justice Antonin Scalia, on the other hand, who Obama praised at the Saddleback Forum for his "intellectual brilliance," voted with the majority in Raich, coming down squarely against a government of "limited and enumerated powers." It's safe to say that Scalia and Thomas are both politically hostile to illegal drugs. Yet only Scalia set his constitutional scruples aside that day.

Not that Obama mentioned any of that at Saddleback. Instead, he repeated a demonstrably false charge that dates back to Thomas' confirmation hearings in 1991. Shouldn't Obama be happy that a qualified black justice—even a conservative one—has been proving his intellectual critics wrong for more than a decade?

Apparently not. Lofty rhetoric aside, Obama has been just as guilty of shameless pandering as any other politician. Similarly, McCain's transparent attempt to recast himself as a judicial conservative has been less than persuasive.

With the election less than three months away, Saddleback was a necessary reminder that our would-be leaders are willing to stoop a little low in order to win. That's not exactly change we should believe in.

Damon W. Root is an associate editor of reason.

I Am the Law

droot@reason.com (Damon W. Root) — Tue, 12 Aug 2008 12:00:00 EDT

Prior to September 11, 2001, few Americans had any reason to know the name John Yoo. A law professor and former clerk for Supreme Court Justice Clarence Thomas, Yoo was just two months into his job as assistant attorney general in the Justice Department's Office of Legal Counsel when the terrorist attacks occurred. In the years since, however, his handiwork has become impossible to ignore.

Most notably, Yoo drafted the infamous 2002 "torture memo," which, among other things, maintained that the president could not be constitutionally prohibited from ordering torture during wartime, no matter what existing American law had to say about it. More generally, Yoo emerged as a highly effective advocate of the so-called unitary executive, the theory that by vesting "the executive power" in the presidency, the Constitution equipped the commander in chief with the "inherent" authority to go to war without congressional approval, nullify treaties, ignore the courts, and much more.

Since returning to academia in 2003, Yoo has remained a vocal champion of untrammeled executive authority. His latest effort, a Charleston Law Review article titled "Andrew Jackson and Presidential Power," is particularly outspoken. Not only does Yoo offer a flattering profile of America's domineering and controversial seventh president, he recasts him as a none-too-subtle precursor of Yoo's embattled former boss, George W. Bush.

As Yoo tells it, Jackson "reinvigorated the Presidency," transforming it into "the direct representation of the American people." As such, the president was uniquely empowered to see that "the will of the people should prevail, regardless of existing governmental and social arrangements."

To put it another way, Jackson saw himself as above the law. Which perhaps explains why Yoo is so interested in claiming him. As the legal scholar David Cole has noted, "Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same—the president can do whatever the president wants."

In Yoo's mind, Jackson's two greatest political victories—his 1832 fight against the Second Bank of the United States and his 1832-33 campaign against South Carolina's threatened secession over the "tariff of abominations"—apparently justify this very idea. As Yoo writes, both accomplishments stemmed from Jackson's "vigorous exercise of his executive powers."

It's hard to disagree with that last point. Jackson's veto of the bill reauthorizing the national bank, for instance, featured a message to Congress that broke with all previous tradition, spelling out for the first time a sitting president's legislative preferences. Opponent Henry Clay described this attempt to influence Congress as "hardly reconcilable with the genius of representative government." Similarly, Jackson responded to South Carolina's talk of nullifying federal law with the threat of overwhelming violence, declaring, "On your unhappy State will inevitably fall all the evils of the conflict you force upon the Government of your country."

Yet aside from being driven by Old Hickory's volatile personality, his two positions share nothing in common. On the bank issue, Jackson was something of a libertarian, arguing that the institution granted monopoly powers to politically connected elites. Yet when it came to South Carolina's talk of secession, Jackson was a ferocious nationalist, threatening to unleash steel and fire to preserve the union.

His politics, in other words, were all over the place, held together only by his considerable belief in his own righteousness. But why would anyone accept that as a reason to trust a single, fallible human being with unilateral war making authority?

Yoo offers an unpersuasive and unsatisfying account of Jackson's most notorious achievement as president: his central role in Georgia's expulsion of the Cherokee Indians, the shameful episode that culminated in the 1838 Trail of Tears. While acknowledging Jackson's "great responsibility for the tragedy," Yoo adds, "Under the standards of his day, Jackson's views can be said to represent the views of the voting public."

Yet as historian Amy Sturgis has argued, Jackson's "policy of compulsory removal of American Indians—besides enacting a national plan for what was essentially ethnic cleansing, coupled with the forcible redistribution of property from its rightful owners to those who had not earned it—was wildly at odds with the checks and balances inherent in the federal system." After the Supreme Court held Georgia's anti-Cherokee laws to be unconstitutional in Worcester v. Georgia (1832), Jackson simply refused to enforce the decision (as did Georgia), declaring that the Supreme Court was entitled only to "such influence as the force of their reasoning may deserve."

Imagine if President Bush had responded that way to the Court's recent decision in Boumediene v. Bush (2008), which recognized habeas corpus rights for enemy combatants held at Guantanamo Bay. Under Yoo's interpretation of both law and history, Bush would have been perfectly justified in doing so.

Thankfully, this brand of Jacksonian conservatism hasn't completely taken hold. But there's nothing comforting in the fact that Yoo's arguments still hold sway in the highest reaches of power. If Old Hickory teaches us anything, it's to beware of any leader claiming to be above the law.

Damon W. Root is an associate editor of reason.

The Unfortunate Case of Herbert Spencer

droot@reason.com (Damon W. Root) — Tue, 29 Jul 2008 13:00:00 EDT

In 1944, historian Richard Hofstadter published Social Darwinism in American Thought, an aggressive and widely influential critique of the libertarian philosopher Herbert Spencer (1820-1903) and his impact on American intellectual life. In Hofstadter's telling, Spencer was the driving force behind "social Darwinism," the pseudo-scientific use of evolution to justify economic and social inequality. According to Hofstadter, Spencer was little more than an apologist for extreme conservatism, a figure who told "the guardians of American society what they wanted to hear." The eugenics movement, Hofstadter maintained, which held that humanity could improve its stock via selective breeding and forced sterilization, "has proved to be the most enduring aspect" of Spencer's "tooth and claw natural selection."

A hit upon publication, the book helped make Hofstadter's name, doing much to secure him his prominent perch at Columbia University, where he taught until his death in 1970. But there's a problem with Hofstadter's celebrated work: His claims bear almost no resemblance to the real Herbert Spencer. In fact, as Princeton University economist Tim Leonard argues in a provocative new article titled "Origins of the Myth of Social Darwinism," [pdf] which is forthcoming from the Journal of Economic Behavior and Organization, Hofstadter is guilty of both distorting Spencer's free market views and smearing them with the taint of racist Darwinian collectivism.

So what happened? As Leonard notes, Hofstadter was no neutral observer. Rather, he "wrote as an opponent of laissez-faire, and also as a champion of what he took to be its rightful successor, expert-led reform." A one-time member of the Communist party, Hofstadter himself later admitted that the book "was naturally influenced by the political and moral controversy of the New Deal era."

At the heart of Hofstadter's case is the following passage from Spencer's famous first book, Social Statics (1851): "If they are sufficiently complete to live, they do live, and it is well they should live. If they are not sufficiently complete to live, they die, and it is best they should die."

That certainly sounds rough, but as it turns out, Hofstadter failed to mention the first sentence of Spencer's next paragraph, which reads, "Of course, in so far as the severity of this process is mitigated by the spontaneous sympathy of men for each other, it is proper that it should be mitigated." As philosophy professor Roderick Long has remarked, "The upshot of the entire section, then, is that while the operation of natural selection is beneficial, its mitigation by human benevolence is even more beneficial." This is a far cry from Hofstadter's summary of the text, which has Spencer advocating that the "unfit...should be eliminated."

Similarly, Hofstadter repeatedly points to Spencer's famous phrase, "survival of the fittest," a line that Charles Darwin added to the fifth edition of Origin of Species. But by fit, Spencer meant something very different from brute force. In his view, human society had evolved from a "militant" state, which was characterized by violence and force, to an "industrial" one, characterized by trade and voluntary cooperation. Thus Spencer the "extreme conservative" supported labor unions (so long as they were voluntary) as a way to mitigate and reform the "harsh and cruel conduct" of employers.

In fact, far from being the proto-eugenicist of Hofstadter's account, Spencer was an early feminist, advocating the complete legal and social equality of the sexes (and he did so, it's worth noting, nearly two decades before John Stuart Mill's famous On the Subjection of Women first appeared). He was also an anti-imperialist, attacking European colonialists for their "deeds of blood and rapine" against "subjugated races." To put it another way, Spencer was a thoroughgoing classical liberal, a principled champion of individual rights in all spheres of human life. Eugenics, which was based on racism, coercion, and collectivism, was alien to everything that Spencer believed.

The same can't be said, however, for the progressive reformers who lined up against him. Take University of Wisconsin economist John R. Commons, one of the crusading figures that Hofstadter praised for opposing laissez-faire and sharing "a common consciousness of society as a collective whole rather than a congeries of individual atoms." In his book Races and Immigrants in America (1907), Commons described African Americans as "indolent and fickle" and endorsed protectionist labor laws since "competition has no respect for the superior races."

Similarly, progressive darling Theodore Roosevelt held that the 15th Amendment, which gave African-American men the right to vote, was "a mistake," since the black race was "two hundred thousand years behind" the white. Yet despite these and countless other examples of racist pseudo-science being used by leading progressives, Leonard reports that Hofstadter "never applied the epithet ‘social Darwinist' to a progressive, a practice that continues to this day."

And that's the trouble. Once Hofstadter's smear took hold, it was an uphill battle to set the record straight. Unfortunately, Leonard's persuasive and compelling article alone won't do the trick. But as an explanation of what really happened to Spencer's reputation and as a resource for those who'd like to learn more about his ideas, it's a great place to start.

Damon W. Root is an associate editor of reason.

Into the Thicket

droot@reason.com (Damon W. Root) — Tue, 15 Jul 2008 12:00:00 EDT

In a celebrated 1958 lecture delivered at Harvard University, federal appeals court judge and noted legal scholar Learned Hand famously likened the United States Supreme Court to a "bevy of Platonic Guardians," an untouchable elite whose growing influence threatened to undermine the separation of powers and compromise the very idea of democratic rule. "When I go to the polls," Hand observed, "I have a satisfaction in the sense that we are all engaged in a common venture." Were the Supreme Court to have the final say on every political question, "I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."

Fast-forward half a century to the recent conclusion of the Court's 2007-2008 term, and you'll find Hand's complaint is still alive and well on both sides of the aisle. For instance, former Republican Rep. Tom DeLay (R-Texas) responded to Boumediene v. Bush, which recognized habeas corpus rights for prisoners held as enemy combatants at Guantanamo Bay, by arguing that the Court "has declared itself the final authority on making war, incarcerating enemy combatants, and, indeed, on the American people's right to self-government." In short, "this is not judicial activism. It is judicial tyranny."

Though he employed a necessarily lighter touch, Chief Justice John Roberts took much the same line, criticizing the Boumediene majority in his dissent for needlessly and arrogantly substituting its "unelected, politically unaccountable" views for those of "the people's representatives." According to Roberts, "one cannot help but think...that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

On the other side of the ideological divide, Justice John Paul Stevens was busy chastising the Court's conservatives for entering the "political thicket" of gun control in District of Columbia v. Heller, where the majority struck down Washington, D.C.'s sweeping handgun ban and held that the Second Amendment protects an individual right to keep and bear arms, a decision that Stevens found deeply troubling. "No one has suggested that the political process is not working exactly as it should," he wrote, employing language long associated with the case against judicial activism. "It is, however, clear to me, that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."

As it happens, Roberts and Stevens each have a valid point. In both the habeas corpus and Second Amendment decisions, the Supreme Court did nullify popularly enacted legislation, overruling the expressly stated preferences of lawful representatives and other public officials. And it's a good thing that the Court did. With the Bush administration asserting the "inherent" authority to wage war and detain certain prisoners indefinitely without trial, and with Congress apparently more than willing to cede these and other war powers to the executive branch, it was the Court's basic constitutional duty to act as a check against such abuse.

By the same token, with Washington, D.C.'s notoriously inept local government perfectly willing to leave law-abiding residents unarmed and thus unable to defend their own homes, the job of restoring the Second Amendment's lost liberties necessarily fell to the judiciary. In both cases, the Court simply undertook what James Madison had in mind when he described the judicial branch as "an impenetrable bulwark against every assumption of power in the legislative or executive." Judges, in other words, are supposed to strike down unconstitutional laws and to discipline overreaching officials. That's true whether such laws are popular with a majority of people or not. And dangerous laws only get worse when they're embraced by the population.

If anything, the courts today should be striking down far more laws than they do. Indeed, if there is one common thread to the Supreme Court's history, it's the fact that its worst decisions have centered on deference to government action, not on hostility to the will of the majority. For instance, there was Plessy v. Ferguson (1896), where the Court upheld Louisiana's Jim Crow railroad regulations; Korematsu v. United States (1944), where the Court upheld Franklin Roosevelt's wartime internment of Japanese Americans; and Kelo v. City of New London (2005), where the majority upheld that Connecticut municipality's abuse of its eminent domain powers. A little judicial activism in such cases would have gone a long way towards protecting individual liberty.

Which brings us back to the present. One of the most important things to take away from the Court's most recent term, evident in decisions ranging from Boumediene and Heller to Davis v. Federal Communications Commission, where the majority struck down parts of the Bipartisan Campaign Reform Act for restricting political speech, is that the vigorous use of judicial review isn't just legitimate, it's necessary to help safeguard our rights.

Damon W. Root is an associate editor of reason.

Arming America

droot@reason.com (Damon W. Root) — Fri, 27 Jun 2008 18:00:00 EDT

For the past 32 years, law-abiding residents of Washington, D.C. have been at the mercy of one of America's most unforgiving gun control laws: a total ban on the possession of handguns in the home, as well as strict trigger lock and disassembly requirements for rifles and shotguns. Taken together, these restrictions have left Washingtonians unable to mount any sort of meaningful defense of themselves, their families, and their homes from armed intruders.

But things changed on Thursday. In a landmark 5-4 decision in the case of District of Columbia v. Heller, the Supreme Court held that D.C.'s gun ban was unconstitutional under the Second Amendment since it deprived individuals of their right "to use arms for the core lawful purpose of self-defense." In a forceful, tightly argued opinion, Justice Antonin Scalia declared that the amendment protects an essential individual right, one that is "unconnected with service in a militia."

One major thing the decision didn't do, however, was directly address a crucial question going forward: whether the constitutional right to keep and bear arms is applicable against the states as well as the federal government (which administers Washington, D.C.). Under what's known as the incorporation doctrine, the Supreme Court has gradually ruled that the Fourteenth Amendment applies many of the protections contained in the Bill of Rights against infringement by state and local governments. The Second Amendment, however, has been glaringly absent from this process. Did Heller change that, too?

Technically no. But since the Court wasn't asked to settle that matter, the fact that it didn't do so is no cause for alarm. In fact, the decision offers cause for some real hope. Justice Scalia's extensive reliance on historical sources and scholarship sends a very promising signal to those who'd like to see the Second Amendment enforced against the states. If history matters, and Heller certainly says that it does, then strong evidence for incorporation is likely to carry real weight in future litigation.

So let's consider the origins of the Fourteenth Amendment, which states in part, "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." As legal historian Michael Kent Curtis makes clear in his definitive book, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, the radical Republicans who drafted and then spearheaded the 1868 ratification of the amendment clearly intended and understood it to apply the entire Bill of Rights to the states.

In short, these legislators, most of whom had been active in the anti-slavery and abolitionist movements, wanted to secure the life, liberty, and property of the recently freed slaves and their white allies in the former Confederate states. This quite obviously and quite necessarily included the right to keep and bear arms for purposes of self-defense. Ohio Rep. John Bingham, for instance, the author of the Fourteenth Amendment's crucial first section, which was quoted above, declared that "the privileges and immunities" it refers to "are chiefly defined in the first eight amendments to the Constitution." Similarly, Sen. Jacob Howard of Michigan, who presented the amendment to the Senate, described its object as "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms." For a state or federal judge following the methodology laid out in Heller, such information could prove very persuasive.

In modern-day Chicago, meanwhile, gun rights activists have already seized the initiative. Within hours of Heller's announcement, the Second Amendment Foundation and the Illinois State Rifle Association filed a lawsuit in federal court challenging the city's draconian handgun ban, a law that has deprived Chicagoans of the right to self-defense for the past quarter of a century. Benna Solomon, deputy corporation council for the city, responded by telling the Chicago Tribune that "the 2nd Amendment does not apply to state and local government," adding: "We are prepared to aggressively litigate this issue and defend this ordinance."

Alan Gura, the attorney who successfully argued Heller before the Court, and who is now representing the plaintiffs in the Chicago case, is more than ready. As he told reason this week, "The next step is obviously 14th Amendment incorporation. I'm looking forward to leading that fight."

Damon W. Root is an associate editor of reason.

A Man's Home is Another Man's Castle

droot@reason.com (Damon W. Root) — Wed, 11 Jun 2008 15:00:00 EDT

Last Tuesday, voters in California faced the choice between two statewide initiatives, each claiming to protect property rights against eminent domain abuse. The loser, Proposition 98, which was sponsored primarily by the Howard Jarvis Taxpayers Association, would have imposed significant limits on the ability of state and local officials to seize private property using eminent domain, and would have phased out rent control everywhere in California. The winner, Proposition 99, which was championed by the League of California Cities, will do neither of those things.

In fact, despite being titled the "Homeowners and Private Property Protection Act," Prop. 99 will dramatically undermine the rights of California property owners, farmers, landlords, and renters. Of particular concern is the fact that Prop. 99 specifically protects only "owner-occupied residence[s]" from eminent domain abuse, leaving apartment buildings and other rental properties, not to mention family farms, churches, and small businesses, wide open for the taking. And even that flimsy safeguard contains loopholes. Under the most notable exception, owner-occupied residences may be condemned on behalf of "private uses incidental to, or necessary for," public works and improvements (emphasis mine). As George Mason University law professor Ilya Somin notes, "This means that homes could still be taken for transfer to private developers if the proposed project allocated some space for a ‘public' facility such as a community center or library."

So what happened? Did Prop. 99 trick voters into thinking they were protecting property rights when they were actually undermining them? Or did a majority of Californians simply reject Prop. 98's controversial attack on rent control?

The short answer is yes to both. As critics charged, Prop. 99 looked like a legitimate reform measure, despite the fact that it actually leaves city and state officials with vast powers to condemn and seize property. Moreover, for those voters opposed to eminent domain abuse but unaware of Prop. 99's fine print, it would have made sense to vote yes on both measures, just to be safe. Yet under Prop. 99, if both measured passed, "the provisions of this measure [99] shall prevail in their entirety." In other words, Prop. 99 benefited—by design—from both intentional and miscast votes.

But Prop. 98's critics had a point, too. Limiting what a landlord charges in rent is a far cry from seizing somebody's house and handing the property over to a developer. Furthermore, while reforming eminent domain is a popular issue in California (and elsewhere), ending rent control is highly controversial. So not only was including the anti-rent control plank a bad strategic move, it gave Prop. 98 the appearance of bad faith as well. To put it another way, why bundle an unpopular proposal with an extremely popular one unless you're trying something fishy?

In hindsight, it seems clear that Prop. 98 should have been a straightforward assault on eminent domain abuse. That approach would have attracted a broad coalition of support. Consider the various liberal and left-of-center voices that spoke out against Kelo v. City of New London (2005), where the Supreme Court allowed the Pfizer Corporation to acquire private property via eminent domain under the city's "economic revitalization" scheme. Rep. Maxine Waters (D-Calif.), for instance, declared, "the taking of private property for private use is in my estimation unconstitutional, un-American, and is not to be tolerated."

Similarly, the National Association for the Advancement of Colored People (NAACP), in the amicus curiae brief it filed on behalf of the victimized Kelo homeowners, charged that not only were Kelo-style takings in violation of the Constitution, their burden "has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and the economically disadvantaged." In California, however, groups representing racial and ethnic minorities and the elderly overwhelmingly lined up against Prop. 98, a testament to the measure's narrow appeal.

But the future isn't entirely bleak. Chip Mellor, President of the Institute for Justice, the libertarian public interest firm that litigated Kelo, recently told reason that the outcry against the Court's decision has resulted in forty-two states enacting "laws that change the status quo that was in existence at the time of Kelo." And while not all of these laws are perfect, "all of them are better than what existed before."

Prop. 99, of course, is now the exception to that statement, but Mellor's point remains strong. The Kelo backlash has sparked eminent domain fights from Brooklyn, New York to Raytown, Missouri. Too bad the authors of Prop. 98 squandered their shot at winning a real victory in California.

Damon W. Root is a reason associate editor.

The Body is a Terrible Thing to Waste

droot@reason.com (Damon W. Root) — Tue, 20 May 2008 12:00:00 EDT

Jesse Ventura has come a long way since those heady days of November 1998. A Reform Party longshot in the Minnesota gubernatorial race, Ventura ran as the outsider's outsider, a flamboyant former Navy SEAL, professional wrestler ("The Body"), and Hollywood bit player who'd already achieved the impossible, serving one term as the elected mayor of his hometown, the Minneapolis suburb of Brooklyn Park. To the surprise of everyone—except the candidate himself, or so he humbly claims—Ventura grabbed 37 percent of the vote, narrowly defeating both Democrat Hubert Humphrey III and Republican Norm Coleman. To celebrate his inauguration, Ventura wore a tie-died Jimi Hendrix t-shirt and sang "Werewolves of London" onstage with Warren Zevon.

"I'm fiscally conservative and socially moderate to liberal," he told reason in December 1998. "I've taken the libertarian exam and scored perfect on it." That libertarianism was responsible for Ventura's best ideas, including the decriminalization of marijuana and a proposal to make the state legislature spend every fourth term repealing outdated laws, not passing new ones. Not surprisingly, both plans went nowhere, though Ventura did succeed in removing at least one stupid law: a state ban on playing bingo more than twice a week at nursing homes. "I put great trust in our elderly," he deadpanned before the press, "that, with this burden lifted from them, they will not abuse this great privilege."

But while showmanship helped him on the stump, it didn't give Ventura the thick skin necessary for dealing with other politicians—or with the press, who sparked his wrath after reporting that his 22-year old son had thrown wild parties at the governor's residence. "Today," he writes in his new book, Don't Start the Revolution Without Me, "I view those media people as equivalent to pedophiles, because they attacked my children on multiple occasions."

So he called it quits as governor after one term, announcing on Minnesota Public Radio that he "will always protect my family first." Since then, Ventura has spent a semester as a visiting professor at Harvard's Kennedy School of Government (you read that right: his seminar was called "Body Slamming the Political Establishment: Third Party Politics"), campaigned for Texas gubernatorial hopeful and fellow third party iconoclast Kinky Friedman, and retreated to Mexico's Baja peninsula, where he grew a funky beard.

Now he's back in the spotlight, promoting a bizarre new book filled with conspiracy theories and the endlessly repeated question: Will he or won't he run for president? Given that just last week Ventura was hinting that he might challenge comedian Al Franken for the Minnesota Senate seat of Republican incumbent Norm Coleman (Ventura's Republican foe from the 1998 race), it seems that The Body is desperate for whatever political action he can get.

Pathetic title aside, Don't Start the Revolution Without Me turns out to be an unexpectedly fascinating read. First and foremost, Ventura has gone whole hog into political paranoia. He devotes most of one chapter, and other lengthy passages throughout the book, to challenging the Lone Gunman theory of the John F. Kennedy assassination, a subject he's clearly obsessed with. Of Pat Buchanan's success in wresting the 2000 Reform Party presidential nomination, Ventura charges, "it was a set-up all along by the Republicans. A way to destroy the momentum for a third party." As for Pearl Harbor, "some evidence exists that FDR and Churchill were privy to the Japanese attack...but needed a catalyst to bring America into World War II."

Even the Patriot Act—a piece of villainous lawmaking, no doubt about that—falls under the shadow of conspiracy. At a whopping 342 pages, Ventura simply doesn't believe that the government could have cobbled it together in those "first scary weeks" after the attacks. "Its almost as if somebody had it all ready to be unveiled," he writes, "but just had to wait for the right moment—a Reichstag fire, a Pearl Harbor type event, to make it a reality."

This is the Bush Did It theory at its most simplistic (substitute Cheney for Bush if you prefer). As Sen. Russell Feingold (D-Wis.), the Senate's lone vote against the Patriot Act, noted at the time, the proposal contained "vast new powers for law enforcement, some seemingly drafted in haste and others that came from the FBI's wish list that Congress has rejected in the past."

But it's the 9/11 attacks themselves that have really sent Ventura over the top rope. How did those two planes bring down the Twin Towers, anyway, he wonders. "I don't claim expertise about this," he continues, before citing his "four years as part of the Navy's underwater demolition teams," but "something about the official story doesn't add up." In Ventura's view, the towers should have flattened like pancakes, "rather than the concrete being pulverized and flying through the air for blocks."

As radical journalist Alexander Cockburn has remarked of the "9/11 Truth" movement, "one characteristic of the nuts is that they have a devout, albeit preposterous belief in American efficiency." That certainly describes Ventura's repeated assertion that four hijacked airplanes should not have been able to bypass our air defenses. "Yet no bells went off, no emergency sirens, no fighter jets scrambled until very late."

As a former governor, not to mention a Vietnam vet, Ventura should know firsthand that the government screws stuff up, both the big things and the small ones. September 11 was FUBAR writ large. Yet here he displays a perversely unshakeable faith in American air traffic control.

It's all of a piece, really, his belief that the media "jackals" were out to ruin him, that Lee Harvey Oswald didn't act alone, that "the media today are controlled by the big corporations," that "certain people in the government were out to keep an eye on me," that if Osama bin Laden and al-Qaeda "were responsible...it was not without some knowledge of those impending attacks on our side."

Still, I wouldn't mind seeing Ventura run for president (or for senator, or dogcatcher, or whatever). In addition to talking conspiracy, he's likely to raise all sorts of other trouble, from advocating the repeal of organized religion's tax-exempt status to mandating that every politician who votes for war have at least one relative in uniform (both proposals are in the book). That could be fun to watch. Plus, he's no longer so quick to identify as a libertarian, sneering nowadays that Minnesota's Libertarians "tend to want anarchy." Liberals and conservatives, after all, are just as responsible for Ventura's wacky ideas as libertarians ever were, and a new campaign is likely to spread the blame.

Besides, we might as well get some laughs in before the election. And Jesse Ventura is always good for that.

Damon W. Root is a reason associate editor.

Liberty for All

droot@reason.com (Damon W. Root) — Mon, 05 May 2008 15:00:00 EDT

Last week, South Dakota election supervisor Kea Warne announced that state voters will have the opportunity this November to accept or reject one of the nation's strictest anti-abortion statutes, a proposed law that would completely ban the practice except for narrowly defined cases of rape, incest, or the health of the mother. Sponsored by the group VoteYesForLife.com, which gathered well above the 16,776 signatures necessary for inclusion on the fall ballot, Initiated Measure 11, as the proposal is known, puts the question of abortion rights directly in the hands of state voters. If they vote yes, doctors who perform illegal abortions will face up to 10 years in prison and up to $10,000 in fines. But should it matter what the voters think?

Look at it like this. The United States Constitution guarantees a number of specific individual rights, including free speech and the right to keep and bear arms. But what about those rights that aren't listed? Do we have the right to drink apple juice? How about the right to grow a mustache? More crucially, what about the right to be left alone? The Constitution mentions none of them. So if a majority of voters agree that we don't possess these (or countless other) rights, what's to stop the government from restricting our liberty?

The answer for many conservatives, and some libertarians, is nothing. Take Rep. Ron Paul (R-Texas). An outspoken foe of abortion, Paul favors turning the issue over to the states, where local preferences would trump a one-size-fits-all federal policy. Even pro-choice libertarians might like the sound of that. But consider the full ramifications of Paul's majoritarian position. Responding to the Court's disastrous decision in Kelo v. City of New London (2005), which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan, Paul argued that the Supreme Court should have simply refused to hear the case. "The issue," he maintained, "is the legality of the eminent domain action under Connecticut law, not federal law....The fight against local eminent domain actions must take place at the local level."

While Paul is certainly right that eminent domain abuse must be aggressively fought on the local level, he's wrong that we should skip the federal fight. As the Fourteenth Amendment declares: "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." Yet in Paul's mistaken opinion, this potentially libertarian amendment has no impact on the actions of state or local governments. Legal historians, however, have long agreed that the Fourteenth Amendment was originally meant to apply the Bill of Rights (and other natural rights) to the states.

Similarly, conservative former federal appeals court judge Robert H. Bork has attacked the Supreme Court for "inventing" rights and "usurp[ing] the powers of the people and their elected representatives." Bork is referring to two cases here. First, in Griswold v. Connecticut (1965), the Court struck down that state's ban on contraceptives, holding that the law violated the "zones of privacy" created by the Constitution's "various guarantees." Second, in Roe v. Wade (1973), the Court recognized the right to an abortion within the privacy rights guaranteed by Griswold.

For Bork, the absence of the word privacy in the Constitution means that the document does not protect it. But what about the Ninth Amendment, which states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, the Constitution itself recognizes that we possess far more rights than any document could ever list, a situation that the legal scholar Stephen Macedo has likened to islands of government power "surrounded by a sea of individual rights." If Bork had his way, we'd all be drowning in a sea of government power.

Which brings us back to the voters of South Dakota. There's nothing inherently noble about a majority of people agreeing on a particular issue. Indeed, bad ideas often prove more popular than good ones. It's only when popular majorities are anchored to the idea of inalienable rights that they're most entitled to our respect. Without that underlying commitment to individualism, majority rule can and frequently will degenerate into the loss of liberty for unpopular minorities. The racist policies of the Jim Crow South, after all, were often extremely popular among white voters.

So before we get too misty over the will of the people of South Dakota, let's remember that James Madison warned us about the tyranny of the majority, not the tyranny of unfettered individual liberty.

Damon W. Root is a reason associate editor.

Supreme Anxiety

droot@reason.com (Damon W. Root) — Mon, 21 Apr 2008 12:00:00 EDT

On Sunday, Supreme Court Justice John Paul Stevens celebrated his eighty-eighth birthday. Last month, Justice Ruth Bader Ginsburg turned a spry seventy-five. It takes no leap of faith to imagine America's next president replacing one or both of these justices on the Court. Aside from the usual talking points—one side will protect the right to choose, the other will overturn Roe v. Wade, etc.—what sort of justices should we expect from major party frontrunners Barack Obama, Hillary Clinton, and John McCain?

On the most pressing issues of the day, executive power and civil liberties during times of war, Sen. Barack Obama (D-Ill.) is by far the most palatable. For starters, he's clearly on record against the Bush administration's illegal wartime power grab—what the University of Chicago's Richard Epstein has called "executive power on steroids." Obama has said repeatedly that he'll close Guantanamo, restore habeas corpus to American-born enemy combatants, and end "the practices of shipping away prisoners in the dead of night to be tortured in far-off countries." He thinks the detention of American citizens without trial is illegal and is opposed to both warrantless wiretapping and the use of presidential signing statements to bypass federal law. Any judge sharing most or all of these views would be a welcome addition to the current Supreme Court.

At a glance, Sen. Hillary Clinton (D-NY) occupies similar ground. Stating her opposition to Judge Samuel Alito's recent confirmation to the Supreme Court, for instance, Clinton excoriated Alito's "excessive deference to presidential authority, coupled with his restrictive view of congressional authority, [which] tells me he doesn't have the proper reverence for separation of powers."

Fine words. But what about her own deference to the wishes of the White House when voting for the USA PATRIOT Act in 2001 and its reauthorization in 2006? What about her support for the 2003 invasion of Iraq, a position she's trying unsuccessfully to downplay in the face of Obama's more credible antiwar record? Does anyone actually believe President Hillary Rodham Clinton will inaugurate a more restrained executive branch? The candidate herself apparently doesn't. As Jacob Sullum noted here earlier this week, Clinton told ABC News that, "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority."

John McCain, of course, has made winning the Iraq War the centerpiece of his campaign. Yet he's also spoken out forcefully against the use of waterboarding and rejected outright the use of presidential signing statements, telling the Boston Globe, "I will either sign or veto any legislation that comes across my desk." Those are big pluses.

On the question of enemy combatants, however, McCain turns coy, maintaining that while American citizens are entitled to due process, the commander in chief nonetheless retains the power to hold them as enemy combatants. Precisely what due process means in this context remains unclear. Ultimately, however, it's McCain's vigorous and misguided support for this unnecessary war that's the most troubling in terms of the future Court. There is every reason to believe that McCain's nominees would vote to uphold his administration's conduct and pursuit of the war. That's why he'd place them on the Supreme Court in the first place.

Nevertheless, McCain does have his moments. Asked by a writer from Human Events which legal precedent he'd most like the Supreme Court to overturn, McCain responded "eminent domain," a reference to Kelo v. City of New London, the deplorable 2005 decision which allowed the pharmaceutical company Pfizer to acquire private property seized via eminent domain under an "economic revitalization" plan. "That is one I am very concerned about," McCain stressed.

That's a great answer. But what about McCain's frequently repeated promise to avoid so-called activist judges, to nominate only those individuals who "do not legislate from the bench?" The Kelo decision, it's important to remember, represents McCain's dream of judicial restraint, not his nightmare of judicial activism. In Kelo, Justices Stevens, Breyer, Ginsburg, Souter, and Kennedy deferred to the wisdom of local officials; they respected the electoral preferences of local voters. Only an activist Court would have struck down New London's development scheme. Indeed, it would have taken a majority that legislated its own views "from the bench" to save Susette Kelo's home from the bulldozer. On this point, of course, McCain simply echoes the confusion of most contemporary conservatives, who rail against judicial activists for striking down sodomy laws on the one hand, while openly wishing for activist judges to strike down affirmative action and eminent domain laws on the other.

Still, McCain's muddled take on law and economics at least recognizes property rights. His Democratic opponents are openly hostile to any decision that would limit the size or scope of the regulatory state. Explaining his vote against the confirmation of Judge John Roberts to the Supreme Court, for example, Senator Obama listed a handful of contentious issues where "what is in the judge's heart" will prove critical. In addition to abortion and affirmative action, both of which are predictable litmus tests for any Democrat, Obama singled out the question of "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce."

He's referring here to the post-New Deal trend of Congress relying on its constitutional power, under Article 1, Section 8, "To regulate Commerce...among the several states," in order to pass legislation touching on every aspect of American life, from economics to crime. In essence, as the legal scholar Randy Barnett has argued, by adopting the widest possible interpretation of the Commerce Clause, "courts have granted Congress a near plenary power to do anything it wills and have thus nearly destroyed the system of limited enumerated powers."

Which is apparently fine with Barack Obama. So is the Court's disastrous decision in Gonzales v. Raich (2005), which struck down California's medical marijuana law in favor of federal anti-drug laws "tangentially related" to interstate commerce. Given Obama's weepy remarks last year to Planned Parenthood, where he described his ideal Supreme Court justice as "somebody who's got the heart, the empathy" to sympathize with society's downtrodden, Obama's lack of empathy for medical marijuana users is doubly deplorable.

Not that Hillary Clinton's record on the Commerce Clause is much better. Consider her response to U.S. v. Lopez (1995), where the Supreme Court nullified the Gun-Free School Zones Act, which had made it a federal crime under the Commerce Clause to knowingly possess a handgun within 1,000 feet of a school. Speaking before the liberal American Constitution Society in 2003, a speech later reprinted in the Georgetown Law Journal, Senator Clinton attacked Lopez for imposing-for "the first time in sixty years," no less-a "substantive limit on what Congress can and cannot do under the Commerce Clause." As if that wasn't bad enough, Senator Clinton found herself worrying about the constitutionality of every bright new idea. "The next time I consider school safety legislation, should I wonder whether school safety is ‘truly national' or ‘truly local,'" she asked. The answer, by the way, is yes. Of course she should wonder, as should every lawmaker. That they don't is all too obvious.

So where does all that leave libertarians over the next four years? Given that the Supreme Court is very likely to hear cases challenging the Bush administration's wartime policies and very unlikely to revisit the Kelo or Raich decisions, Obama definitely emerges as the lesser evil. But given his dangerously illiberal views on economics, as well as the tough political realities he (or Clinton or McCain) will likely face, we're better off forgoing hope and preparing for the worst.

Damon W. Root is a reason associate editor.