There Is No Right to Privacy in the Constitution

Monday, February 20, AD 2012

In other words, Santorum is right and his hardcore libertarian opponents are wrong.

Rick Santorum has stated that he believes that there is no right to privacy in the Constitution.  Therefore, Supreme Court decisions such as Griswold v. Connecticut (striking down Connecticut’s anti-contraception statutes) and Lawrence v. Texas (striking down Texas’s anti-homosexual sodomy laws) were wrong.

Mitt Romney artfully dodged this question at a recent debate, so Santorum’s coming under fire for stating what should be taken as a given among so-called conservative constitutionalists.  As indicated in prior posts, Santorum does not suggest that he would personally favor such laws; in fact he has expressly stated that he would not vote for laws that banned contraception or sodomy.

Santorum’s main fault, evidently, is that he is expressing an originalist understanding of the constitution.  Both of the decisions referenced above were gross miscarriages of constitutional justice.  No matter what you think of the laws in questions, Supreme Court Justices are supposed to decide cases based on the constitution, not their personal policy preferences.   In both cases, the majority opinion was based on policy, though justified with a thin veneer of constitutional justification.

In the case of Griswold, Justice William O. Douglas wrote the famous majority opinion in which he stated that though there is no right to privacy expressly stated in the constitution, it is found in “penumbras” and “emanations” found in other constitutional rights.  Justice Kennedy wrote the majority opinion in Lawrence, relying heavily on the concept of substantive due process, a legal concept that has enabled the Court to completely trample on states’ rights.  In other words, the Court struck down state laws that ran afoul of no direct constitutional prohibition.  The writers of these majority decisions had to contort the plain meaning of the document in order to justify a decision they had already reached without reference to the constitutional text.

Both of these cases sparked notable dissenting opinions.  Potter Stewart in Griswold and Clarence Thomas in Lawrence said much the same thing: the law under consideration is uncommonly silly, and if i were a legislator in this particular state I would vote against such a law.  But my job as a jurist is to determine whether the law is constitutional or not, and neither Stewart or Thomas considered the law in either case to run afoul of the constitution.  The sentiment expressed by both Stewart and Thomas should inform any intellectually honest jurist.

Justice Arthur Goldberg offered a concurring opinion in Griswold that some conservatives have found to be more compelling, citing the Ninth Amendment as justification for striking down the Connecticut statute.  The problem with this rationale is that the ninth amendment ought to be read in conjunction with the tenth.  The Bill of Rights in general were meant to be restrictions placed upon the federal government.  The ninth and tenth amendments exists because the framers of the Bill of Rights fretted that the Bill of Rights would be read to imply that only the rights contained therein were protected.  in fact many of the opponents of the Bill of Rights opposed creating such a list precisely because they believed that a specific enumeration of rights would imply that rights not listed were not protected. So the ninth amendment assures us that the first eight amendments are not an exhaustive list of protections.  But again, this has to be read in light of the purpose of restricting the power of the federal government.  It is not a broad grant of individual rights, but an assurance that the federal government could not augment its reach beyond certain delineated fields. If anything, the ninth amendment should be used as a cudgel against the Court and the federal government in general in their attempts to restrict states rights.

Therefore I find it odd that those who claim to be averse to a centralized, big brother government are content with said government being able to strike down state laws for no other than the laws in question are of questionable value.  It suggests to me that those who cry “Nanny Statist!” with regards to Rick Santorum ought to look in the mirror.

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11 Responses to There Is No Right to Privacy in the Constitution

  • Hear, hear!

    No area of ConLaw is more messed up than those dealing with human sexuality. Whatever else can be said of the Church’s teaching, at least it is cohesive.

    Scalia ripped the “reasoning” in Lawrence precisely because Kennedy sought to dodge the logical extensions of the Court’s meddling. The Court isn’t alone of course in its refusal to drive logic out to its conclusion. We see the same lack of insight or honest acceptance of responsibility for consequences in Obamacare’s creation of an enforcable right to contraceptive drugs.

  • Griswold is part of the school of constitutional jurisprudence known as “making it up as we go along”. The idea that the Constitution prevents a state from banning contraceptives, or French envelopes as the Founding Fathers would have referred to the only contraceptives they were aware of, would have struck them as a poor attempt at an off color joke.

  • I also enjoy reading Justice Black’s dissent in Griswold. A good excerpt:

    My Brother GOLDBERG has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates “fundamental principles of liberty and justice,” or is contrary to the “traditions and [collective] conscience of our people.” He also states, without proof satisfactory to me, that, in making decisions on this basis, judges will not consider “their personal and private notions.” One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll. And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the “[collective] conscience of our people.” Moreover, one would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Brother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that, “by enumerating particular exceptions to the grant of power” to the Federal Government, “those rights which were not singled out were intended to be assigned into the hands of the General Government [the United States], and were consequently insecure.” That Amendment was passed not to broaden the powers of this Court or any other department of “the General Government,” but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the “[collective] conscience of our people” is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that, for a period of a century and a half, no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.

  • Thanks Jonathan. That really gets to the heart of the matter. It’s kind of sad that most of the great opinions written in Supreme Court history were dissents.

    BTW, I went and edited the post some. Perhaps for Lent I’ll strive to give up making egregious typos.

  • Welcome, Paul!

    Glad to put my conlaw teaching moments to work for a good cause.

    Also, I am thoroughly enjoying seeing the various photos which you, I, and Donald use as our “avatars”.

  • Also, Paul – I may have forgotten to mention it. I got my J.D. from CUA in 2005.

  • I wasn’t aware of that. I knew many people in the previous two classes. I probably spent more time inside the law school than in my own department.

  • Paul,

    If you were involved with the Catholic groups at all, then we probably ran in some of the same circles of people.

  • I graduated from Duke Law in 1983 and was taught Con Law by the truly great Wm. Van Alstyne. While very much a pro choice liberal, he expressed disdain for Roe and discomfort with Griswold. Back then there were more honest liberals. Jonathan an Paul, I suspect you would have aced his course — not easy to do. He was (and still is) a masterful and entertaining teacher. He would have made a terrific Supreme Court Justice, but alas he was known by Republicans as a liberal Dem and by Dems as a honest constitutional scholar. Not a chance.

  • Mike,

    Thank you for the compliment, though my own constitutional law score unfortunately belies any deeper analytic ability in the region.

    It seems to me that at lease some among an older generation, perhaps those with memories of the wars, was at least vaguely (if not acutely) aware of the problems of government exceeding constitutionally defined limits. They also seemed able to separate approval of outcome from reasoning used to get there, and (as Justice Black seemed to say) refused to engaged in “good feeling” as a justification.


  • I did not study law at all in college, so my legal acumen is somewhere between my ability to speak Chinese (non-existant) and my ability to play basketball (laughable.)

    So, to the learned members of the impropmtu panel here assembled, I would pose the following question, which has bothered me for some time:

    Is it at all noticable that an overmuch amount of the secular/humanist/progressive/leftist effort at diluting Constitutional substance is in the areas having to do with sex and/or marriage? Between the current administration’s HHS “mandate,” Roe v Wade, the cases mentioned above in the OP and an assortment of other notable instances, sex seems to be the favorite weapon swung by the Godless fascists.

    The reasons I note this are A) it’s also the main topic of much of the Gospels, Paul’s letters and Scriptural treatises on righteous behavior – singled out for reasons well-known but too many and deep to go into here, and B) because it seems to escape the grasps of much of the high-level legal community.

    Those who attack our republican system of civic self-government with limited Federal oversight use sex as the main assault vehicle in undermining the very origin of rights as informed by the Constitution; granted by God. They attack faith in God by appealing to fleshly desires; by saying “it’s OK, times have changed, be free!” they render obedience to God moot, and then God Himself becomes little more than an archaic cartoon charcter. With that degeneration, the philosophical ability to withstand the humanist/totalitarian onslaught becomes at best arguable and at worst meaningless.

    It’s deliberate, generational and caustic. I just wonder why there’s never been any broad-brushed recognition of this avenue of attack. But, then again, I’m not a lawyer.

The War on the Drug War

Tuesday, January 17, AD 2012

I caught a little of the Mark Levin show tonight, and he had a Ron Paul supporter on his show.  He gave the gentleman a good deal of time – two segments in fact – and was actually gracious to the caller.  The Paul supporter spent most of his time talking about the seminal issue of our day, the one issue that is truly on the mind of every American voter: the drug war.

There are legitimate reasons to oppose the prohibition on drugs.  I don’t particularly agree with this philosophy, but it’s not outside the bounds of reasonable discourse.  What baffles me is the attention that libertarians pay to what is a fairly minor issue.  We are still suffering economically, with an unemployment rate that is hovering at about 8.5 percent, and a real unemployment rate that is significantly higher.  Our national debt is out of control.  Soon Obamacare will be fully implemented, thus making the debt problem and our health care even worse.  Meanwhile, President Obama shrugs off the Constitution like it is some dusty old piece of parchment in making “recess” appointments, and has an Attorney General who continues to obfuscate about a horribly botched gun operation in Mexico.  And yet this guy wanted to talk about the drug war.

Sometime ago I once watched a Libertarian convention, and watched speaker after speaker rail about the criminalization of marijuana.  I had the same reaction then as I did this evening: this is really the hill you want to die on?  Sure, if you want to make this a part of your platform, knock your socks off.  But to make this one of the focal points of your outrage against the government?  Really?

We all have issues that we care about more deeply than do other people.  It just strikes me that libertarians would be better off focusing their attention on matters that are a tad more relevant to people living in the real world.


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15 Responses to The War on the Drug War

  • “But to make this one of the focal points of your outrage against the government? Really?”

    Love of cannabis explains quite a bit about the Libertarian political philosophy which is basically the rest of the world can go to hell as I long as I can do whatever the hell I want.

    I am always amused when drug use is claimed to be a victimless crime. I have been a court appointed attorney in many juvenile cases. Invariably the parents have been druggies who I wouldn’t trust to “parent” a slug, let alone a human child. Illegal drug use also goes hand in hand with criminal activity. I have rarely represented a criminal defendant in non drug cases who was not an illegal drug user. Then we have the divorces where one party decides that he prefers heroin or cocaine to to his or her mate or kids. Victimless crime, yeah, right.

  • Donald-
    thank you.
    I was debating if I wanted to touch that electrified rail again. Made the mistake of sharing a story the association between cannabis use and mental illness requiring treatment a year or two back– otherwise perfectly rational people went utterly unhinged, making flatly counter-factual claims about the article linked, let alone the study it cited. (and linked– this looks like the same subject, but I don’t have the link itself)

    I know of one good outcome of drug use: the drug ring that was also stealing car radios (and swiping all papers in the car for ID theft) ended up being broken because one of their dealers thought they’d cheated him of his fair share, so he called the cops to complain about it. I may have told this story before, they got a suspended sentence of community service, even caught red-handed with thousands of dollars worth of stolen goods.

    I’ve got a post brewing somewhere working on a link between the spoiled rich kid type demonstration phenomina and pot, but I’ll probably never finish it because it’s worse than speaking ill of Ron Paul.

  • I do not wish to argue about priorities in the 2012 election over there. I do however know something about the drug epidemic as one who rented his upstairs to crack addicts, unknowingly, and had “friendly” neighbours while in the USA, I am also fully aware of the huge corruption, inflated prices, cost of policing and the officials being bought off, in the drug trade from South America and Mexico and the stories from Afghanistan. The drug trade has destroyed a huge section of the fabric of the society and culture. Vulnerable people are being robbed, murdered, injured, prisons are filled with the lower level people in the business and the high cost because of the danger of drugs is destroying lives . Some better strategy must be developed. What would be so wrong with admitting defeat in trying to eradicate them and working out a system to control the growth and market and care for the addicts by changing the current failed tactics. The Enemy is powerful and very wealthy and very ruthless, the Opponent is basically powerless to a large extent.

  • Sometimes I think libertarians are as bad as liberals.

    I agree with everyone.

    One thing: what drug war? They are not fighting a war. Read them their “Miranda rights.”

    I have seen what drugs do. Would you shoot a rabid wolf if it were about to kill your kid?

  • The use of illegal drugs is a sin in Catholic teaching. I was a drug prosecutor for 17 years. I KNOW that usiung pot does not necessarily mean that a person will use powder coke, meth, prescription pills, glue or crack. BUT the huge, huge majority of the informants we used, and I talked to them all, used pot before they used other drugs, and THEY said it was a gateway drug to them !! To make pot legal is saying to kids, we were wrong, it’s not that bad. You want “Joe’s Pot Shop” next to the Burger King or the Best Buy? There is an illegal sanction now, and my opinion is that it would be worse than it is now, in every respect, to lega ize any illegal drug. Obama has done zero in stopping drugs from Mexico. We could do more. Drug treatment programs in prison could be increased. And God forbid that the President of the United States should “lead” and talk about this issue in an address to kids and the public in general. Don’t hold your breath. When Reagan and Bush the First made it a priority, drug use went down. This nation cannot tell kids…”.We were wrong…its now legal if you are over 21…but dont take them if you are under 21!!”…Hows that theory involving booze working for us???
    Read this about drugs|utmccn=(direct)|utmcmd=(none)&__utmv=-&__utmk=15501622

  • What baffles me is the attention that libertarians pay to what is a fairly minor issue.

    A number of them have a fanciful idea of the share of public expenditure which is allocated to enforcing drug laws (the correct answer is ~2%). Others retain an essentially juvenile world view and set of tastes.

  • As I noted, i rented to crack heads, without knowing it, had a weekly TV programme on topical issues and had highway patrol on as guests- including one ex-60s hippie! undercover officer- and taught College where a former undercover DEA officer became a good friend. I also volunteered as a counselor for religious programmes in prisons for women and men. That whole experience and seeing the failures or local, state and federal efforts to save lives and win people off drugs led me to see that something else or more needs to be done. The sticking point for me is the crime and ruin caused by addicts to get the cash for the drugs, the excessive price of the drugs since they are illegal and thus much more expensive. I am neither a liberal nor conservative as far as labels go socially. But I do think and my experience shows me that is looks broke, can we fix it without making it more broken. Seeing the destruction drugs caused was so depressing and it seemed nothing worked since there was no real alternative and of course not too many saw they had a problem.

  • Of course libertarians are going to bitch about legalizing pot! What else are they supposed to do all day in their mother’s basement besides look at porn?

  • jay A.: Your’s (8:44AM) goes on the list for best comment . . .

  • You mention concern with Obama shredding the constitution while expressing wonderment at why libertarians are concerned with the War on Drugs. The WOD is a trashing of the constitution that has been going on long before Obama brought his own particular zeal to the game. Those of you who believe that marijuana use should remain illegal completely miss the point. The WOD is illegal itself! There is no constitutional warrant for federal involvement here. If you aren’t willing to abide by the constitution why should anyone pay any heed to your insistence on legalization. f you think marijuana is bad then by all means do as was done with alcohol and abide by our laws and amend the constitution to give the feds legal authority to outlaw marijuana.

  • You mention concern with Obama shredding the constitution while expressing wonderment at why libertarians are concerned with the War on Drugs

    Actually, I expressed wonder at why libertarians stress this particular issue to the extent that they do. I don’t happen to think that it is outside the realm of polite discourse to suggest that it should be decriminalized or even outright legalized, but it seems to me that there are more pressing matters of concern.

    The WOD is illegal itself! There is no constitutional warrant for federal involvement here.

    Hogwash. This is one of those rare matters where the commerce clause is a justification for federal action.

    This sentiment is a good distillation of libertarian thought, and why so many are really as bad as progressives. Not everything that you disagree with is unconstitutional. You can argue against the drug war on policy grounds, but there’s nothing unconstitutional about it.

  • The commerce clause is ample constitutional warrant for the WOD. The languange is itself quite expansive and in my view gives Congress considerable latitute to effectuate national policy as long as there is some reasonable nexus to national commerce. While libertarians are uncomfortable with this, and I am too frankly, I tend to think that the words must be respected even when I think they yield Congressional actions that I think are imprudent and certainly unanticipated by the Framers. The Framers agreed to what was written — not to what they hypothetically might have thought they agreed to.

    Whether the WOD is a prudent exercise of the power to regulate interstate and foreign commerce is a matter of opinion. Certainly, abuse of drugs is a violation of natural law and therefore it is hardly unreasonable for citizens, including Catholic citizens, to desire that positive law be in alignment. But such alignment is a matter of prudence, and one can certainly reasonably argue that the enforcement of such laws creates more social problems than it solves. I favor the WOD, but concede reasonable people can disagree.

  • There is no constitutional warrant for federal involvement here.

    I think you might argue there is no warrant to render mere possession, home production, or street-level sales a federal crime. Please keep in mind that the drug trade involves often transporting merchandise accross state lines and possession while on Interstate Highways and U.S. Routes. Keep in mind also that 70% of those in the clink on drug charges are in county jails and state prisons.

  • Paul is right. In 2005, the Supreme Court decided the case of Gonzales v Raich. The case raised the issue of whether federal drug laws prohibiting the private possession of marijuana preempt state laws that authorize possession and consumption for medical pruposes with a doctor’s prescription. After the DEA seized doctor-prescribed marijuana from the home of a patient, Angel Raich and other patients sued. The United States contended that laws authorizing medical marijuana in California and 10 other states interfere with federal drug enforcement. Raich and fellow medical marijuana user Diane Monson argued that medical marijuana grown and consumed entirely on private property, or provided by a local medical caregiver, is not “an article of commerce” within the power of Congress to regulate.
    BY a 6 to 3 vote Writing for the Court, Justice Stevens found that the power of Congress to regulate local activities as part of a “class of activities” that substantially affect interstate commerce was “well established.” The Court concluded that the doctor-prescribed marijuana has a significant impact on both the supply and demand for black market marijuana, which was clearly within the power of the federal government to regulate. Joining the liberals in the majority were conservatives Scalia and Kennedy, who have been skeptical of strained exercises of the Commerce Clause power in other contexts. Justices O’Connor, Rehnquist, and Thomas dissented.
    There is no more argument folks. What the USSC says the Constitution means…it means!
    The Federal Drug law—21 US Code 801 states “(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.

    “(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.

    “(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because–

    “(A) after manufacture, many controlled substances are transported in interstate commerce,

    “(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and

    “(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.

    “(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

    “(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

    “(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.” 21 U. S. C. §§801(1)-(6).
    Those are just some of the notes that justified the USS Ct to uphold the Fed Drug Laws. So….you may call it unconstitutionsl.BUT those that have the duty and authority to call it un constitutional—-disagree with you

11 Responses to Somalia, Libertarian Paradise!

  • Very nice Tito. I have never been quite sure how “Conservative Catholics” in this country embraced Libertarianism. Up until very recently (and maybe in the ideal, still), the Church has seemed more ready to embrace Catholic Authoritarian governments that would enforce Catholic moral teaching with laws at the expense of individual freedoms.

  • Tito,

    Bless your heart.

    I wish you had counted to 10,000 before you posted that video. And, I know you did not put it together.

  • No, I didn’t put it together.

    But after listening to Ron Paul wanting our military to withdraw from South Korea, among other things, my enthusiasm for libertarian ideals have matured.

  • I thought this was hilarious! As much as most of the bloggers here prefer to focus on the threat of a bloated, oppressive “nanny state” it helps to be reminded once in a while that the other extreme — no government at all — ain’t that great either.

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  • Pretty amusing.

    Of course, as the blog’s resident pseudo-libertarian, I should note that compared to other African countries (which have governments) Somalia has been doing fine.

  • Has anyone here even read the US Constitution? Powers granted to the federal government are specific and limited. Today however our federal government is so large that it is about to take everything away from the people. We will not have to worry about our states rights or the Bill of Rights as they pertain to religious freedom, noooooo, the Global government will see to that.

    Sounds farfetched ?!? Twenty years ago could anyone here see the demise of this country? We are actually debating Sharia Law and Ginsberg worries about how our laws differs with international laws.

    Wake up people!

  • Blackadder,
    While other states in Africa are having issues, I think you are seriously underestimating how bad things are in somalia. Lets remember, this is country whose multiparty civil war has lasted for twenty years now, that is the home to numerous pirates that have been raiding shipping in the Indian Ocean, sell people of Bantu heritage into slavery….

    In other words, there might be countries that are worse off in Africa, but there are also countries that are much better off.

  • It’s interesting to note that three new countries (not recognized by the international community) have emerged from the shambles of Somalia.

    They are Somaliland, Puntland, and Galmudug.

    I say let them break up if those countries are able to function!

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Libertarians vs. Rand Paul

Thursday, July 1, AD 2010

A couple of months back Republican Senate candidate Rand Paul stirred up a hornets’ nest of controversy when he (briefly) indicated his opposition to Title II of the Civil Rights Act of 1964, which banned racial discrimination in “public accommodations” like restaurants and hotels. The controversy was notable not only for its utterly irrelevance to any current political issue, but also for the fact that even many libertarians distanced themselves from Paul’s position. I was out of the country at the time and so didn’t get a chance to comment, but libertarian think tank the Cato Institute recently published a libertarian defense of Title II and other civil rights legislation, which got me thinking about the issue again.

Defenders of Paul’s position (and there were a few) typically made one of two arguments; one based on an appeal to principle; one based on free market economics. The first argument is the straightforwardly libertarian one that individuals have the right to dispose of their property as they see fit, and while we might not like it if a business owner refuses to serve members of a particular racial group, it is still wrong to violate his property rights by telling him he can’t do so. I don’t have much to say about this argument, except to note how incongruously unpersuasive it is to most everyone today. Libertarianism is also criticized as being absolutist, but of course there are areas in which lots of people are willing to be comparably absolutist in their defense of individual freedom. Had Paul said, for example, that he supported the right of neo-Nazis to march through the streets of Jewish neighborhoods waving swastikas, his views would have been in keeping with those of most of the intelligentsia. Yet displaying a similar solicitude when the subject involves commercial activity is viewed as borderline crankish. The reasons for this discrepancy are probably worth further reflection, but I won’t dwell on them here.

Perhaps sensing that the argument from principle is a surefire loser, others have contended that laws such as Title II weren’t really necessary to end private discrimination by businesses. According to this argument, any business that turned away a substantial number of potential customers would soon find itself out of business, and absent legal mandates segregation would simply collapse under its own weight (call it the ‘everyone’s money is the same color’ argument).

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  • A very interesting point.

  • The worst discrimination was at hotels and restaurants where white people did want to share sheets or plates with blacks or sleep or sit so close to them. I’d bet there were far fewer segregated bookstores. It’s also likely that the Civil Rights Act had a social impact beyond the four corners of the act. If you’re already eating and sleeping around blacks, walking around a bookstore with them doesn’t seem like a big deal anymore.

  • Never thought I’d support RR in most anything, but he does offer a counter-argument– one that falls right in the Libertarian blind spot. (being too rational–not a bad failing, all and all, just messes up some models)

    If the roots of segregation were irrational/emotional, then information/familiarity would be the target.

    The best way to gut-punch an emotional reaction is the social angle– so places where you go to shop and that’s all are poor choices (or good political sacrifices) to get what’s really important, the places where you go and interact.

    It’s sort of like the partial birth abortion stuff– very few pro-aborts really think it’s utterly needed, they just know they can’t give so much as an inch or folks might start to view the unborn as people.

  • I thought of RR’s counter and considered addressing it, but ultimately decided against it due to length concerns.

    With respect to RR, his explanation strikes me as being just a post hoc rationalization. Suppose you had told someone during the drafting of the Civil Rights Act, for example, that they didn’t need to include movies theaters under Title II because if you banned discrimination for restaurants and hotels it would disappear for movie theaters as well and just as quickly as if it had been included in the ban. I dare say they wouldn’t find that at all persuasive.

  • Were more transactional commercial venues like grocery stores and bookstores (of the sort not addressed in the bill) actually segregated in the first place?

  • I don’t see why it matters when debating the Civil Rights Act today, whether the breadth of the social impact was correctly assessed in 1964. My point was that the similar rates of change by businesses subject to the Act and businesses not subject to it is not a good measure of the Act’s efficacy because the nature of the businesses are different and the Act likely had a larger social impact.

  • For what it’s worth, I agree with both the principled argument and the economic one. For that reason I would not, myself, at the time, have supported the Title II of the Act.

    I don’t doubt that there is much truth to restrainedradical’s objection. But failing to torture Al Qaeda’s top guys, or failing to include improperly-gotten evidence in court trials, has possibly worse consequences for society; yet we have elected to stick to our principled “guns” on these items as well. And good for us. These are tough choices; but I think our society is better off, in the long run, for not taking sketchy shortcuts.

    But I sympathize with Paul and others who, under the current circumstances, feel unable to articulate the principled argument openly without derailing any conversation in which they are currently engaged.

    I think Blackadder (this is Blackadder’s piece, isn’t it? I hate how pieces published here have no obvious by-line!) is correct to say that the principled argument “is a surefire loser” and to note “how incongruously unpersuasive it is to most everyone today.” But I am afraid that is myopia on the part of “most everyone,” just as the notion of the moral acceptability of slavery was myopia on the part of “most everyone” in the antebellum southeast, or the acceptance of abortion or homosexual activity or artificial contraception is myopia by an awfully large number of persons today.

    So if Paul were to take the principled argument as his position, he would thereafter be able to talk about nothing else: Every conversation would be steered in that direction; every useful thing he had to say on any other subject at all would be lost in the din.

    What to do? Well, he could accept this as his lot and opt to make evangelizing the public toward accepting the principled argument his sole crusade. But who wants to waste his political life trying to convince folks that one portion of a law passed over forty years ago was morally wrong? (Talk about beating a dead horse!)

    Better to skip over the topic lightly and speak instead on topics wherein (a.) the public is more likely to listen to reason; and, (b.) the topic is of contemporary urgency, and not of merely historical interest.

  • explanation strikes me as being just a post hoc rationalization.

    Quite possible. Doesn’t mean it’s wrong, though– if we look at it with scientific terms, then the theory accurately explains the results of the experiment.

  • if we look at it with scientific terms, then the theory accurately explains the results of the experiment.

    The problem is that if there had been a difference that also could have been explained by the theory. If a theory is consistent with any result of an experiment, then the experiment cannot serve to corroborate the theory.

  • It’s possible that economic interests combined with a changing social tide would have eventually corrected the injustice but accommodating unjust discrimination by delaying justice is itself an injustice.

    As for the “principled” argument, there is no right to unjust discrimination.

  • Do we not in fact always discriminate? I am not referring to arbitrary discrimination; rather, to specific circumstances? For example, the Eucharist is reserved for baptized, confirmed Catholics and the priesthood for men only. One is a choice, the other is a physical characteristic. How is being male different than being black?

    It seems to me that the government is obliged by justice to treat all citizens equally before the law; however, it is a dangerous precedent to force private entities to do the same. Is it a moral requirement? Of course; however, when we use government to enforce that, it can become problematic.

    Based on the logic that a private restaurant MUST serve blacks, then the Catholic Church MUST ordain women if they desire to be priests, or open practitioners of Sodomy for that matter. It is a dangerous precedent and is now being used to create forced acceptance of all sorts of evils – homsexualism, cross-dressing, gender-neutrality (whatever that means), ad nauseaum.

    I was not alive when segregation was occurring and although I am not black, I suspect that the same establishments may have had some trouble serving a Levantine like myself (I do have that nappy, think black hair, after all) – nevertheless, white people I have spoken to who did reside here in Virginia back then gave it no thought. It wasn’t that they were racists (although I am sure many were, and some, sadly still are), they simply accepted the status quo. When it was brought to their attention due to the legislation and the Civil Rights struggle, they were accepting of it. It seems to be an issue of education and familiarity rather than racism. I suspect that could have been brought about without Title II.

    Furthermore, it seems that most of America was in favor of granting equal rights to blacks. It took a relatively short period from boycotts to action in the favor of justice. Then it seems the movement was stolen by lefties who found that ‘race’ was a great guilt-card to use in bringing about Communism/Marxism/Socialism. Not to mention all the money that was to be made. Notice the Tea Parties are suddenly racist and so is the entire state of Arizona – right after the country, democratically elected a half-black man as president. Come on.

    I think we can get lost in what could have happened, but we can’t fail to notice that forcing ‘justice’ on private individuals (selectivity at that – how does that even make sense?) can lead to severe problems of justice. I hope I am wrong, but it seems the sentiment of Title II and the poorly written 14th amendment can and probably will be used against the Church. Why did we open up that can of worms?

  • As for the “principled” argument, there is no right to unjust discrimination.

    Or, as they used to say, error has no rights.

  • American Knight, the reasons for the discrimination must be just. Racism is not a just reason.

    Why open up the can of justice? Because we’re Catholic. We force justice upon private individuals all the time. You can’t murder. That requires the government to define life which opens a can of worms but that doesn’t mean the government should be agnostic about murder.

  • RestrainedRadical, Blackadder:

    You fellows are correct to say that there is no right to unjust discrimination, that error has no rights.

    But in that case we’re talking about moral rights, not political rights. The former means things which under natural law we may do without thereby being immoral; the latter refers to things which the government may not rightfully use force to prevent us from doing.

    A thing may not be a moral right, but still be a political right, because the government lacks the just authority to enforce a prohibition against it. It’s wrong, but it’s not illegal.

    Error has no moral rights, but sometimes it has political rights. I have no moral right to argue in the public square that it should be legal to distribute hardcore pornography to six-year-olds, because because not only is the act itself egregiously evil, but so is the advocacy of it.

    However, I have a political right to make that argument in the public square because the government has no just authority to prohibit my political speech. Even when that speech is morally evil. (So long as it doesn’t include an immediate incitement to crime or endangerment of others; e.g., yelling “fire” in a crowded theater.)

    So the question is not whether discrimination against some customers, while serving others, has “moral rights.” It doesn’t; it’s evil.

    The question is whether discrimination against some customers, while serving others, has “political rights.” I think it does, because the government has no just authority thus to govern people’s use of private property, et cetera.

    Hence the “principled” Libertarian argument.

  • I guess I am not seeing the connection. It should be recalled that many of this enterprises had a connection with concepts in Common Law of welcoming all comers.

    There was no huge problem in the South of black folks buying cars from White Dealers

    There was a problem with people being able to eat at eateries and staying in hotels.

    Now of course a lot of this deters people to be in interstate commerce

    The whole system was upset to keep a particular social order intact. I might be able to buy a car from you or a TV from you but I can;t easily eat with you and discuss business or travel and have you at my hotel to discuss business.

    So no “market forces” would not have helped with this. In the background was a whole social system that would have come down on you if you opened up to these forces. That is what is missed.

    What is also missed is the law is a moral teacher. Once these laws came down it had the effect of making people realize that this system was indeed injust.

    When you buy a TV that does not threaten social stability. However when you have the right to break bread with a person regardless of race that does affect socialstability. The whole system was set up to make blacks inferior.

  • R.C., Cogent. Morally speaking, God wants us to choose justice, not be forced to be just. As for restrainedradical’s comment about murder, the government does not prevent murder (sadly it promotes it when the victim is an unborn child). Government prosecutes murderers, once the attempt or the accomplishment of the unjust act is executed. To R.C.’s point, if a court refuses to hear a case of say, a white poll inspector who was intimidated and threatened by say, a Black Panther who happens to be black simply because the Black Panther is black or a political ally, that is unjust racism! Since the court, or the department of justice, represents the government there is a duty to treat all citizens equally before the law.

    However, if a black restaurateur does not wish to serve Bobby Jindal simply because he’s ethnically Indian, then that is also racism and it is still unjust, but the government has no right to force the restaurant owner to be just toward Gov. Jindal. That would be up to us, often referred to as the ‘market’ to support the racist by patronizing his eatery, or to thwart the racist by not eating there. The ‘market’, or individual choice, mechanism is a far better tool for fraternal correction than the force of the government.

    jh, the system of segregation was horrible and it was openly codified in the South – the same system existed outside Beatnik culture in the North, it was simply more insidious because it wasn’t codified. I suspect most blacks still feel more welcome in the South than in the liberal North. Justice Thomas certainly thought so. Also, notice that laws on the books in the North during the antebellum period and for some time after the war, forbade blacks from working or residing in white towns and areas. Although, relegated to the horror of slavery in the South, many Southerners had closer interaction with negros than Northerners. They often ate together, their children played together and many were taught to read by their masters – principally to learn the Gospel of Jesus Christ. Does that mean it was OK for Africans to be enslaved by white Southerners? Of course not! It was also just as wrong to have them enslaved by freed blacks, or traded by Northern whites, Arabs, Portuguese, Muslims, etc. or sold by African chieftains. Out of all of those groups who was least evil to negros?

    Perhaps the Civil Rights movement would have been wholly unnecessary had we allowed the evil of slavery to be expunged from our lands by means other than war, military occupation, expanding government and dominance by an increasingly secularized WASP culture. Over 300,000 murdered black babies a year would agree if we’d let them be born. What’s worse slavery or murder? Or, segregation with traditional morals, or desegregation by decimating the black family? How does that affect social stability?

  • R.C., I’d argue that government has a moral obligation to correct injustice if it is able to do so. It may be the case that it is unable to do so. So we allow indecent speech even though the government is under no moral obligation to allow it. Arguably, employment and housing discrimination bans are too difficult to enforce but I don’t believe that was the case with restaurant and hotel discrimination in the 1960’s.

  • RestrainedRadical:

    You say: “I’d argue that government has a moral obligation to correct injustice if it is able to do so” …and then go on to consider whether, in particular instances, it is able to do so.

    But don’t you think you’ve missed a step? Or, rather, isn’t your original premise incomplete?

    Shouldn’t it be: “I’d argue that government has a moral obligation to correct injustice if it is able to do so…and if the only available means of correcting that injustice aren’t, themselves, unjust.

    For that, of course, is the source of the principled Libertarian argument in this matter.

    No Libertarian is arguing that discrimination isn’t unjust. And no Libertarian is arguing that Title II wasn’t a quick, easy (and thus “seductive” …pardon the nerdiness of the reference, but I have in mind Yoda’s homily answering Luke Skywalker’s question about whether the Dark Side of the Force was “stronger”) way to “nip discrimination in the bud.”

    The question is, “MAY we, justly, use such methods to solve our problems? Or would that constitute doing evil that good may come of it?

    The Principled Libertarian view here is that, no, despite its advantages, one may not temporarily abrogate the property rights of the citizenry in order to stop them discriminating.

    We would very much like a solution to prevent them from discriminating; however, that particular solution falls outside the set of permissible solutions; and thus, we must (with regret) reject it in favor of what may (sadly) be slower and clumsier solutions, such as encouraging markets to reward those who do business with and hire persons of all ethnicities through higher profits.

    So the point of debate is about whether Title II is whether it does, or doesn’t, cross the boundaries of what is permitted by justice. I hold that it does; but perhaps that’s something you’d dispute?

  • Yes, I dispute the idea that the state may not ban unjust discrimination. You have the right to private property but you do not have the right to do whatever you please on it. We ban murder even if it’s on your private property. Likewise, the state can ban unjust discrimination on your property. Libertarians may also point to the right to associate. But even there, you have no right to use unjust means to associate. You cannot keep individuals out through the use of murder. Likewise, you cannot keep them out through the use of unjust discrimination.

  • RestrainedRadical:

    “You have the right to private property but you do not have the right to do whatever you please on it.”

    What does it mean for something to be “my” property, exactly?

    Distinguishing again between moral rights and political rights, we know that if a particular tree is my property, I have no moral right to chop it down and carve it into an Asherah pole for pagan worship. One cannot have a moral right to do a wrong thing. But one may have a political right inasmuch as it may be a graver injustice for We The People to send our employees (the police power of the government) to imprison or kill a person for making their own tree into an Asherah pole.

    So, do political property rights permit a person to use their own property for pagan worship? I think they do.

    But notice that this does not directly injure my neighbor. (I think it does so indirectly, of course.) I therefore cannot conceive that it is just to directly use armed force against a person to compel them not to do something which directly harms no one. It is a disproportionate use of force, akin to nuking another country because one of their citizens published an anti-American op-ad. It is a violation, on a smaller and intra-national level, of the same moral obligations which, on a larger and inter-national level, are described in the Just War Doctrine.

    I can more easily conceive of something less direct; e.g., tax incentives or disincentives, or public funding for one of those treacly public awareness campaigns on television, to be used against pagan uses of property. This is a less disproportionate use of force, you see.

    I raise this principle in order to answer your objection that…

    “We ban murder even if it’s on your private property. Likewise, the state can ban unjust discrimination on your property.”

    Now, I think it’s a pretty well known principle that for something to be my property, as a political right, it means that I may do as I please with it without fear that my fellow citizens (themselves), or my fellow citizens (in the person of their employees, the government), or citizens of a foreign power (invaders) will kill me or imprison me or take my stuff over it.

    (As a moral right, property means something more; i.e., that I have been made a steward of it by God who rightfully owns everything on the grounds that He made everything, and as a steward I am obligated to use my property as He sees fit.)

    So something is not my property unless I am free to do with it what I will. But there are limitations to that, of course, and you raise one of them: Murder.

    But notice that Murder initiates violence (that is, it uses force) to take from someone something to which they already have a right (their life); and, not just a moral right, but a political right. It violates their political rights; it may therefore be criminalized through the political process. What we have here is yet another example of “my rights end where they begin to violate yours.”

    However Discrimination is in an entirely different category of act. It involves me not doing business with you, or not associating with you. But nobody has a political right to my business or my friendship. They may have a moral right, inasmuch as God wants us to love everyone. But in every case we see that in the matter of my neighbor I am more heavily obligated under the moral law than the political. (I have no moral right to gossip, but I do have a political right. I have no moral right to lust after my neighbor’s wife, but I do have a political right.)

    So then the Libertarian argument, with which I agree, is that discrimination is not a moral right, but it a political right; whereas murder is neither a moral right nor a political right.

    Moreover, in either the moral or political sphere, one may use one’s property in whatever way one sees fit (indeed, that is what is meant by calling it “one’s property,” provided one’s usage does not exceed one’s just authority by violating the rights of another.

    In the moral sphere, that means I may not use my property in a fashion that exceeds my just moral authority by violating the moral rights of another. If I do, I may be subjected to just punishment by the enforcer of the Moral Law (God).

    In the political sphere, it means that I may not use my property in a fashion that exceeds my just political authority by violating the political rights of another. If I do, I may be subjected to just punishment by the enforcer of the Political Law (the police power of the state).

    Now I said earlier that discrimination is a political right, tho’ not a moral one, whereas murder is neither. My entire argument hinges on this. If, in fact, discrimination is also not a political right, then my argument fails and yours wins.

    So the crux of the issue is this: By what principle may we distinguish between political and moral rights; and, once we have determined that principle, on which side of the line does discrimination fall?

    Once again, I think Libertarians have the correct answer here, and it stems from their observation that political rights are all about a code which is constructed and enforced by government. But what is “government?”

    Well, government is that organization in society to which we (uniquely) grant authority to use force to achieve its ends. Honda Motors may not compel me at gunpoint to buy their cars; the Lions’ Club or Rotary Club may not compel me at gunpoint to perform community charitable works; but government can compel me at gunpoint to obey its laws. The “force-wielding organization”: That is what government is.

    Because government’s identity is bound up with the use of force, it follows naturally that the rights and obligations within its sphere of just authority are also those of force. The government may criminalize murder because in murder, the attacker initiates unjust force against another. That the government replies to this use of force is obviously fitting, just as a nation’s armed response to an armed invasion is fitting.

    Government may also criminalize fraud, which is trickier, but not overly so, because fraud is intellectual force. If I buy your product because you put a gun to my head, I have done something I would not otherwise have done: You forced me. Likewise, if I buy your product because you have lied to me about what it is and does, I have done something I would not otherwise have done: You forced me.

    But you’ll notice that the forcing is slightly less direct with respect to fraud, than with respect to holding a gun on me. Therefore, the jail times associated with fraud are less than those associated with threatening my life.

    Now the Libertarian observation about Discrimination as opposed to Murder is this: Discrimination withholds activity whereas Murder acts forcibly, violently.

    It is therefore within the political competence of government, the organization which uses force to achieve its ends, to prevent and/or prosecute murder. But no use of force exists in the matter of withheld business or withheld friendship motivated by discrimination. Therefore this immoral act falls outside the competence and authority of government. A person has a moral right not to be discriminated against, but not a political right.

    Put another way: If Tom, Dick, and Harry live near one another and Tom observes Dick in the act of robbing Harry at gunpoint, Tom may morally intervene with force to stop this immoral act (indeed, if he knows his intervention is very likely to safely succeed, his intervention becomes morally obligatory). But if Tom observes Dick shunning Harry and knows that Dick is doing so because Harry is black (it’s apparently not for nothing the offender is named “Dick”), does Tom then have just moral authority to whip out a gun, point it at Dick, and say, “Go be friends with Harry?”

    I don’t think so. It’s disproportionate. It’s an Unjust War writ small. Tom has no just authority to do any such thing.

    But, if Tom has no such just authority, then he can’t delegate that authority to any of his employees…which includes the government.

    How, then, could the government be delegated such authority justly, if their employers (who’re doing the delegating) never had that just authority to begin with? Answer: They couldn’t.

    Thus discrimination in the form of withheld business or friendship is outside the political sphere of authority, whereas murder and other forms of force and fraud fall well within it.

  • In addition to RC’s excellent points, I would add that what counts as “unjust discrimination” is whatever progressives say.

    Churches in Europe and North America face constant threats and lawsuits from homosexual groups for not indulging their requests to use their property, or for even preaching that homosexual behavior is a sin. This is regard as “hate”, when of course, in reality, no one has more hatred in their hearts than radical homosexual activists do for the Church.

    It may even be “unjust discrimination” not to provide transgendered bathrooms in the future, or to make all sorts of additional accommodations to body-mutilators, transvestites, etc. Where does this madness end?

  • R.C., you have the moral right to worship according to your conscience, even if it is ill-formed, so long as it does not violate the rights of others. So you have the moral right (and therefore, necessarily, the political right) to create idols for pagan worship if your conscience allows it and the law allows individuals to chop down trees.

    Government can choose to allow unjust discrimination or prostitution or indecency but it does so out of concern for the common good not because there’s some political right archetype that must be obeyed even when contrary to the common good.

    Even if we accept the normative libertarian premise that government should not penalize victimless wrongs, unjust discrimination is hardly victimless. It does violence to the dignity of man as surely as defamation, assault, or murder.

    In your “Tom, Dick, and Harry” hypo, if Dick robs Harry, you don’t have the authority to lock Dick in your basement for five years. Governments have legitimate powers that individuals do not. Separate from that is the issue of proportionality. Government may not justly execute you for discriminating unjustly but it can prevent you from operating a restaurant.