People v. State

Norm Pattis makes some good points in this post on the qualities he would like to see in the next justice of the U.S. Supreme Court. I particularly appreciated this pithy remark: “Originalism finds justification for the status quo in reverence for the past and must somehow find accord with our three-fifths of a president.”

But the error of originalism is even more radical than proponents of the “Living Constitution” generally recognize: As the patron saint of this blog, Lysander Spooner, laboriously and rigorously proved, the U.S. Constitution itself (and therefore the government derived from it) is of No Authority. Some of Spooner’s argument is anticipated in Thomas Paine’s Dissertation on the First Principles of Government, where Paine affirmed that

Every age and generation is and must be (as a matter of right) as free to act for itself in all cases, as the age and generation that preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.

If the assertion that the U.S. Constitution is without real authority seems extreme, consider this article from the Internet Encyclopedia of Philosophy, which has no discernible axe to grind and after surveying various theories of political obligation (including our political system’s notion that the “consent of the governed” legitimizes our system) concludes: “There is today a growing consensus to the effect that no theory of political obligation succeeds.” No less a luminary of our country than Thomas Jefferson expressed the worldview of philosophical anarchism when he wrote: “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”

I’m aware that the expression of this conviction might in the minds of some present a question about the validity of my own license to practice law, the initial granting of which was conditioned upon an oath I vaguely remember taking ten years ago to “support” the Constitution. For all the trouble it would undoubtedly cause, I would be proud to be the target of the disciplinary action that leads to the precedent recognizing the First Amendment right to be free of any such oath. (In the meantime, I’m encouraged by Justice Scalia’s recent boosting of Lysander Spooner’s reputation by citing him in D.C. v. Heller. Indeed, Scalia’s citation of Spooner raises the suspicion that Scalia is familiar with his work, and that Scalia’s rejection of inquiries into legislative “intent” (including the Founders’ intent) in favor of textualism was influenced by Spooner’s explicit textualist approach in his monumental The Unconstitutionality of Slavery. It was, of course, important to Spooner’s argument there to discount the supposed intentions of the Founders with respect to slavery, gleaned from their debates over what to include in the Constitution, and to instead rely solely on the text actually adopted and by supposition approved by “the People.”)

The implications of recognizing that the agents without principals who constitute the government have no more authority than anyone else to “do justice” need not be quite as revolutionary and chaotic as the more fearful among us might fear. There is no harm and no injustice when the government, despite lacking the authority to which it pretends, merely prevents or punishes things people have no right to do anyway, such as murder or rob. But this reality-based philosophical anarchism has the following clear and rational implication for statutory and constitutional construction and interpretation: All presumptions should be in favor of personal liberty, and all ambiguities in statutes and constitutional provisions should be resolved against the use of government coercion. The realization that the people who make up the state have no more natural right to use violence and coercion than other people is a very good reason to strictly scrutinize, not only the infringement of rights arbitrarily deemed to be fundamental, but every governmental obstruction of human action. If the existence of the state is justified by the belief that it is a necessary evil, then each and every thing the government does should be judged by this standard of whether it is in fact truly necessary. (The Ninth Amendment, until it was gutted by the judiciary long ago, embodies in the Constitution itself the spirit and justification for such a presumption of liberty.) Spooner put it this way in the second chapter of The Unconstitutionality of Slavery (the first chapter is titled “What is Law?”):

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals  ‑‑  let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative. In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law [*16] contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal [*17] rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor [*18] of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit: “Where rights are infringed, where fundamental principles are [*19] overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

This brings us to the notion of Empathy, which Obama has identified as a quality he wants in the next U.S. Supreme Court Judge. As children we are taught to do unto others as we would have them do unto us, to not take what doesn’t belong to us, and to only use violence and coercion in defense of ourselves or others; but that all goes out the window when we grow up and become political. Empathy is a double-edged word in the hands of a Democrat (as “compassion” proved to be in the hands of our last Republican president). If it means more justice for those accused of crimes and a Justice in the mold of EDNY Judge Jack Weinstein (who in U.S. v. Polizzi has tried to rehabilitate the Sixth Amendment basis for jury nullification, particularly in the context of harsh mandatory minimum sentences), then I’m all for it. But if it means, as Obama has indicated, a judge predisposed to answer affirmatively 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,” then he is calling for the opposite of a judicial presumption against government coercion. I can do without that kind of judicial “empathy.” If Obama really wants to help the poor and downtrodden, he could start by no longer robbing them.

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