August 2, 2008
Legal Department
What I Don't Like About the Supreme Court in One Sentence
From a post by Eugene Volokh on the subject of Texas's inane anti-sex toy laws:
Probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right.
That's pretty much a one-sentence summary of everything I don't like about the Supreme Court's rulings. I realize that's not exactly a supportable theory of constitutional interpretation, but I wish they'd at least try it out for a while.
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Cite a Supreme Court opinion that goes against your proposed right.
It's not that the Supreme Court rules against it directly, they just rule in ways they couldn't if they followed it. For example, Gonzales v. Raich, ruling that the federal government can criminalize the use of marijuana even where a state has approved it for medical purposes.
Like I said, this isn't a very supportable theory of constitutional interpretation---unless we take the Declaration of Independence's invocation of the right to the pursuit of happiness seriously. I just wish someone in our government, preferably the legislature, took personal freedom more seriously.
I imagine that it isn't simply in the cases the supreme court has ruled on. It's in the cases they refuse to hear.
Good point.
They do, see the 10th amendment and
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
and the 4th amendment (basically the right to be left alone unless the government has a good reason).
and the 5th amendment (property is a right)
The catch is what you mean by "so long as it doesn't directly enough hurt others." Which law are you referring to? Pollution? Wall Street creating the current financial catastrophe? Does this mean that taxing for public schools, public health and the fire department are a bad ideas?
The advance of technology and reason has forced us to coordinate and regulate more and more. What you do in Nebraska may now effect me in Georgia. WIthout getting into it, I am of the opinion that Tea Party / Ayn Rand Libertarianism is an appealing but woefully simplistic religion more than anything else, a 'perfect' philosophical system that would result in a weird anarchy and financial rule by thugs in practice. Just like Marxism is a 'perfect' system but in practice results in dictatorship and a low standard of living because there is no incentive to produce, no incentive for innovation, no right to keep the fruits of your labor (property). I predict that Libertarianism will be the latest cult to plague us, as soon as Islam radical mellows out.
You have to be reasonable. Free enterprise and liberty are ideal and should be the system of choice by default, but if there are compelling reasons or a much better business model, then there is nothing wrong with a socialistic business model. Highways, the Internet, medical research, public schools, dams, public universities, sewers, air traffic control, all excellent and bankrolled, organized and maintained by the government, i.e. "socialism." So what? BFD. And I fully accept all the drawbacks of socialism, where you take what you're given, political intervention in what is given, the money was taken from you to decide what to do with it, the DMV sucks, etc. Take your pick, which business model is better for a given situation.
And free enterprise goes through business cycles by its nature, there nothing wrong with taking care of the unemployed when there are no jobs. There is nothing wrong 'socialistically' guaranteeing the basic opportunities of life to children with minimal education, food, housing, healthcare, or taking care of economic zeros like children, the old and the ill. Food stamps, Social Security and public schools.
Big or small government is not the question, the question is "how much? and for what" and that is constantly being re-measured by our elected officials. The Europeans have ten times the socialism we do and it is not exactly a concentration camp there. Free enterprise should be regulated no less and no more than it takes to enforce competition, good faith, honesty and that they are not engaged in something that is bad. No drug dealers, pimps, frauds, monopolies, polluters, no banks that loan investor money (for the commissions) without care, leaving the taxpayers to pay VAST sums to prevent the collapse of the world financial system.
It's all about good management of our country, but you are right to the extent that liberty is primary and free enterprise creates real wealth.