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Rights Are a
Seamless Web
In his dissenting opinion in Bowers v. Hardwick, Justice Harry Blackmun wrote:
Blackmun was right. This is what Thomas Jefferson meant by “the pursuit of happiness” in the Declaration of Independence. Months before the Declaration was approved, his friend George Mason had written the Virginia Declaration of Rights, “[t]hat all men are by nature equally free and independent, and have certain inherent rights . . . namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” [3] Jefferson, Mason, and others of the Revolutionary generation envisioned a society in which each person could be free to set his own destiny. Individual rights were the means to protecting this society, and the founders believed that the rights of property were central to, and even the source of, other rights such as free press or freedom of religion. [4] John Locke had argued that property was the source of every other right, because the individual’s ownership of himself—or rather, God’s ownership of each individual—left that person in charge of himself. [5] The individual therefore had the right to government by consent: since he owned himself, no other person could use him without permission any more than he could use another person’s horse or plow without consent. [6] This argument was persuasive to the framers of the Constitution. James Madison wrote in his essay “On Property,”
Because an individual owns his mind, he also owns the opinions that he forms, just as he owns whatever he might create with his hands—and he has the right to express these self-created opinions just as he has the right to sell any goods he might build. The Declaration’s phrase “the pursuit of happiness” raises the question, “whose happiness?’ —and the answer is, of course, one’s own happiness, within the bounds of other people’s rights to pursue theirs. Self-ownership, the fundamental property right, is indispensable to other rights: we have a right to property, and a property in rights. This may be called the “self-determination argument”: each individual’s ownership of himself is the source and form of his freedom. But the generation after Madison would come to believe that the rights of expression, privacy, or conscience—which they called “political” rights, or “personal” rights, or “fundamental” or “human” rights—were separate from, and even contrary to, the rights of property—the so-called “economic rights.” [8] Blackmun was one of these, for while he argued in Bowers that the individual’s right to self-determination prevents government from interfering with citizens’ sexual choices, he failed in other cases to extend that precept to those seeking protection of economic rights, such as the decision in United States v. Carlton [9] . Blackmun, one of the most liberal [10] members of the Court, was to write the majority opinion in United States v. Carlton [11] holding that the due process clause of the Fourteenth Amendment did not preclude ex post facto tax increases. In a separate opinion, Justice Scalia criticized Blackmun’s approach:
The Court has frequently struggled with the principles Blackmun put so well in his Bowers dissent. The most embarrassing failure in the Court’s history, Dred Scott v. Sandford, [13] is a good example. The central question in Dred Scott was whether Scott—a slave whose master had taken him into federal territory where slave property was not protected—was a man or was property. [14] If he was a man, he had the right to sue for his freedom; if he was property, he did not. [15] The Constitution, of course, referred to slaves as both property and persons. [16] The decision, therefore, would have to be based on the founding principles of the Constitution—the guiding ideas of the American Revolution. [17] However, Chief Justice Roger Taney twisted the principles of the Declaration of Independence beyond recognition, ruling that, at the time of the Declaration’s writing, blacks:
Blacks were property, and did not own themselves. This is why Frederick Douglas, the great abolitionist who had once himself been a slave, once appeared at an antislavery rally and began his speech, “I come before you tonight as a thief and robber. I stole this head, these limbs, this body from my master, and ran off with them.” [19] To this day, the Supreme Court struggles with the place of property in the range of individual rights, and that struggle has continued to produce embarrassment. The alleged dichotomy between “economic” and “personal” rights arose largely as a result of the Court’s opinion in United States v. Carolene Products, [20] a case most famous for “footnote four,” in which the Court announced that it would presume economic regulations to be constitutional. [21] Judicial scrutiny would only be stricter when the law under review is motivated by “prejudice against discrete and insular minorities. . .” [22] And yet within ten years, the Supreme Court would find that the internment of thousands of Japanese-Americans into prison camps was constitutional. [23] As with Dred Scott, the Court brazenly trampled on the rights of an entire race—a discrete and insular minority, indeed! This illustrates the importance of the Court’s strict adherence to its duty of defending individuals in their rights. As Justice Sutherland once put it, “[I]f the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.” [24] Sutherland wrote this in Home Building & Loan Ass. v. Blaisdell, a case involving a Minnesota law that extended the lease periods of all leased property in the state—an obvious breach of the Constitution. [25] The Court found the law constitutional, and Minnesota’s socialist governor rejoiced: “The decision, “ he said, “represents a triumph of human rights over property rights.” [26] This alleged dichotomy between “economic rights” and “personal rights” is very dangerous, and, as Bernard Siegan has pointed out, the line that seemed to separate the two is becoming increasingly blurred. [27] This is no wonder—they are in fact the same thing. We may term this second argument for the connection between property and personal rights the “unity argument.” Consider, for instance, Tinker v. Des Moines Ind. Sch. Dist., [28] wherein the Court held that students wearing black armbands to protest the Vietnam War were within their First Amendment rights of free speech. However, the children who wore armbands in that case had to own the armbands. In Cohen v. California, [29] the Court held that a man wearing a jacket with the phrase “F—k the draft” on it was also acting within his right to express himself; but Cohen had to own the jacket. Had the city of Des Moines confiscated all the black armbands in the city, or California seized all the jackets, this would certainly have been a form of censorship—and yet what right would have been violated, if not the right to property? Richard Epstein has put the issue neatly: one cannot have freedom of press unless one owns the press. [30] When a businessman discusses prices with another businessman in a way that might violate government price regulation or antitrust law, do these laws not violate the freedom of speech? Alternatively, are we to pick and choose what speech we will protect? If so, on what basis do we make that decision? To make that decision totally based on the content of the speech—which seems the only option—would violate the very concept of free speech described in R.A.V. v. St. Paul, [31] “The government may not regulate [speech] based on hostility—or favoritism—towards the underlying message expressed. [32] In The Wealth of Nations, Adam Smith discussed the problem of price fixing, but, conscious as he was of the connection between economic and personal rights, he saw that government could not legitimately prevent it: “People of the same trade seldom meet together . . . but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings by any law which either could be executed or would be consistent with liberty and justice.” [33] “Economic” rights and “personal” rights cannot be disjoined; they are part of the same “seamless web.” The Supreme Court stated in Lynch v. Household Finance Corp.,
Economic rights are central to personal rights for another reason, which we may call the “open society argument.” [35] The purpose of freedom, as described by John Stewart Mill, Friedrich Hayek, and others, [36] is the drive for discovery. Free speech, freedom of conscience, freedom of association, all protect the right of dissent. This concept is often referred to, fittingly enough, as the “marketplace of ideas.” In that marketplace, ideas are traded back and forth, fit together, or are discarded when refuted. Just as in the actual marketplace, traders exchange goods and money to satisfy their physical needs. In the marketplace of ideas, ideas are traded back and forth, fit together, or are discarded when refuted. This is the method of discovery. Disagreements are brought to the surface, discussed, and weighed accordingly. “[D]ebate on public issues should be uninhibited, robust, and wide-open.” [37] That right of dissent is central to the open and unfettered discussion of all manner of controversies, and thus to the search for truth. Philosopher Jacob Bronowski writes that dissent is “native in any society which is still growing. Has there ever been a society that has died of dissent? Several have died of conformity in our lifetimes.” [38]
John Milton’s great defense of free press, Areopagiticia, made the same argument when he said that in an uncensored discussion, there will be many disagreements, but “the perfection consists in this, that out of many moderate varieties and brotherly dissimilitudes that are not vastly disproportional, arises the goodly and the graceful symmetry that commends the whole pile and structure.” [40] Of course, as Milton might have said, this marketplace of ideas is impossible if one cannot own one’s ideas—or one’s books. “The dissemination of ideas can accomplish nothing,” wrote Justice Brennan, “if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.” [41] Property rights protect the right to dissent. [42] An old Russian joke puts this issue squarely: What, asks a Russian lad, is the difference between the Soviet and American Constitutions? The teacher replies, “The Soviet Constitution guarantees freedom of speech. The American Constitution guarantees freedom after speech.” To disagree, one must know beforehand that one will not suffer recriminations for disagreeing. The Court has recognized this, and this accounts for the laws against, for instance, retaliatory firing of “whistleblower” employees. These laws protect “economic rights” precisely because they protect the “personal right” of free speech. If censorship creates a “chilling effect” on speech—certainly economic retaliation does the same thing. The founders were especially sensitive to the connection between “economic” and “personal” rights. When he was 80, James Madison told the Virginia State Constitutional Convention “the rights of persons, and the rights of property are the objects, for the protection of which Government was instituted. [43] These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right.” [44] What the proponents of the alleged dichotomy must answer is why the First Amendment should have absolutists, while the Second, Third, Fourth, Fifth, Seventh, Eighth, Eleventh, and Fourteenth Amendments (all of which mention the right to property) should not, when they protect property rights. They must answer why a person’s single vote (out of the millions who vote in each election) will give him standing to sue the government on equal protection grounds, [45] while the thousands, perhaps hundreds of thousands of dollars which that person must pay in taxes, does not. [46] They must answer the self-determination argument: how the right to free speech or free press can exist if the individual belongs to “others or to society as a whole” which may command him. They must answer the open society argument: how can we be free to criticize the government when at any time we are subject to the seizure of property by those we criticize. It is true, as Brandeis said, that:
With exactly the same passion, the founders believed that the freedom “to develop our faculties” required economic liberty, [48] and, recognizing the tyranny of the majority, they amended the Constitution to protect property. [49] Therefore, those who believe that property rights conflict with “human rights” must explain why one’s “property in rights” is to be respected, while his “right to property” is not. The usual response to the self-determination argument is that the individual actually does not belong to himself, but belongs to “others or to society as a whole” in some degree or other. In fact, the vast majority of political philosophers have made this argument. Rousseau, for instance, believed that the individual should subject himself to the “general will.” “To be a socialist,” said Josef Goebbels, “is to submit the I to the thou; socialism is sacrificing the individual to the whole.” [50] Many figures that are more moderate have argued for a “communitarianism” in which each individual would be regulated for the “common good of all.” [51] Robert Bork, for instance, attacks Blackmun’s dissent in Bowers head on:
Some would argue that forced military service—which did not exist in the United States before the Civil War, and was roundly condemned before then, and after [53] should be precluded by the principles of individual freedom. Eliminating the draft army should rightly be considered a great step in the direction of liberty. However, at bottom, the communitarian argument holds that the success of the community “as a whole” requires the curtailing of the rights of individuals: as Bork puts it, the principle of self-ownership would obliterate the “moral obligation to obey the law.” [54] At first this sounds like a sensible argument; after all, if the law says I may not knock down old ladies, does this not limit my rights in order to safeguard old ladies? However, this is a misleading way of viewing rights. It is not that one’s right to beat up old ladies must be curbed—it is that one has no right to beat up old ladies to begin with. As Locke says,
In other words, it is the right of the old lady to be free from being beaten that is enlarged by ensuring that I do not act in a way that I have no right to do to begin with. [56] The individual’s ownership of himself is absolute, but within the context of all property right; sic utere tuo ut alienurn non laedas, or, in Madison’s words, “one must leave to all others the like advantage.” As one author has put it, those who misdefine rights by saying that they are absolute, and then must be curtailed for “social reasons” commit a harmless error, or even make a praiseworthy distinction—when in fact they are laying the groundwork for an awesome violation of freedom. [57] Thomas Jefferson addressed the claims of communitarianism when he wrote to James Monroe,
The idea that the individual belongs to others and can be regulated for the betterment of “society as a whole” is responsible, in its more extreme forms, for the worst atrocities in history, [59] and in its lesser forms, for the sort of petty injustices that make personal tragedies. [60] As Douglas Kmiec puts it, this idea “elevates the state above the individual and is subversive of the American idea of a government founded on self-evident truths . . . Ours is a government by consent, to be sure, but a consent that can neither sell itself into slavery nor authorize the confiscation of a neighbor’s goods.” [61] Attacks on the unity argument are not so easy to find, because most of those who believe in the dichotomy between “economic” and “personal” right simply accept it without question. For example, Justice Stevens, in his recent concurrence in Nixon v. Shrink Missouri Government PAC asserts that while “our constitution and our heritage properly protect the individual’s interest in making decisions about the use of his or her own property,” [62] such economic rights “are not entitled to the same protection as the right to say what one pleases.” [63] No cites or reasoning are offered for this last assertion. [64] But Stevens’ belief in this dichotomy reaches back to the decision in Carolene Products, that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless . . . it is of such a character as to preclude the assumption that it rests upon some rational basis [65] . . . while “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny . . . .” [66] The argument seems to be that as long as laws don’t preclude their own repeal, they’re not that bad, because people may still correct their own legislative mistakes. At first blush, this seems sensible, but the difference is really illusory. Money is just as important as free speech in such matters [67] and in fact, it would be much harder to repeal the Internal Revenue Code than to repeal some modern day Sedition Act. Those who seek to redistribute wealth are particularly hostile to the unity argument. But they must somehow answer to the fact that property rights protect the poor more than they protect the rich. The wealthy always have the means at their disposal for disguising their wealth, hiring clever lawyers and accountants, or moving their funds offshore. But the poor are constantly affected by laws infringing on their freedom of contract. [68] In fact, often, the poor are the unseen victims of a struggle in which the rich seek to use the government’s power to crush their competition—while pretending that they are acting in the “public interest.” [69] This was the conflict at the heart of Shelley v. Kraemer, [70] one of the great early civil rights cases, in which a group of property holders attempted to restrict the sale of real estate to blacks. The Court held that the Fourteenth Amendment prohibited the government from enforcing such restrictions. [71] Chief Justice Vinson wrote
Many of the dichotomy’s proponents challenge both the unity argument and the open society argument by claiming that private property actually inhibits the free expression of ideas. Yes, they answer, one cannot have free press without owning the press, but the poor do not own presses, and therefore we must protect their right to expression by holding presses collectively, and allowing all to express themselves. [73] Those philosophers who reject natural rights theory, even if they are not precisely communitarian, often see property as a social construct, a tradition, protected for reasons of social utility. They would argue for limiting property rights (or even for a partial redistribution of property) in order to more effectively protect the poor’s right to free speech. An example of this would be “equal time” laws. However, these limitations do not actually “protect” anything—they grant to the poor what they don’t already have—they redistribute property: either tangible property such as printing presses or radio stations, or intangible property, such as the right to free speech. To the extent that the poor beneficiary’s ability to express himself is augmented, the wealthier victim is deprived of that right which is unconstitutional. And it gets worse. In many such cases, the poor lose out as well. For example, limitations on campaign contributions have actually had the effect not of limiting the wealthy ‘s right to free speech, but of excluding all but the wealthiest candidates, who can pay for their own campaigns. A poor man cannot run for office—he has to work all day. However, he might express his views by contributing to a candidate for office. Yet, campaign finance laws curtail his right. [74] Regulating property to permit free expression is impracticable. A finite amount of printing presses or television stations will require rationing or other majoritarian constraints, likely to denigrate into black markets, or worse, into censorship and impermissible selectivity. More, even if property rights were to be curtailed in order to permit freer expression and debate, property rights would, after one redistribution, have to be protected afterwards in order to prevent retaliation. For example, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, [75] a gay organization sought to express its opinions in a parade that was effectively the property of another. The court refused to curtail the property rights of the parade owners and permit “freer expression” by the gay group. If, however, the court had held the other way, it would then have had to forbid the owners from ejecting the gays in future parades—in other words, it would have to protect the group’s newly formed property right in the parade. [76] But more essentially, as Douglas Kmiec has pointed out, “property not only sustains political participation, but also the conscious choice to be insulated from politics.” [77] The shopping mall cases [78] infringed this right—the malls did not want to make any statement. But requiring them to let protestors onto their property violates this right of insulation which is nothing more than the “right to be let alone” [79] —and requires malls to lend their property to causes they may not support. Thomas Jefferson, in his Statute of Virginia for Religious Freedom, wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical.” [80] The same, it would seem, should go for real property. The “open society” argument, though, runs much deeper even than “robust” political debate. As Hayek and others have pointed out, what happens to ideas in the world of free speech happens to material things in the free market—new products are invented, refined, improved, revived; they become cheaper and more efficient; they evolve, as it were, in a way only possible in a free market. [81] The discovery of new ideas in the open society goes hand in hand with the discovery of new goods in the free market. If a government were to censor, say, criticism about a defective product, this process would be upset, and people would still buy the defective item. If a student has the “right to receive ideas” about religion or history or politics, why should a businessman not have the right to receive ideas about how to improve his products? [82] In short, the alleged dichotomy between “economic” and “personal” rights really comes down to a misunderstanding of the nature of property. Property is not just things that lack any spiritual meaning. [83] I am reminded of the story about the old economist who, upon hearing of John Kenneth Galbraith’s essay on “The Causes of Poverty” harrumphed and says “The causes of poverty? Poverty has no causes. Wealth has causes. Those causes are hard work, foresight, intelligence, quickness, vivacity, respect—they are the virtues of self-reliant “rugged individualism which have made America a land not only where one may say as one pleases, but where even the poorest may grow rich.” [84] Moreover, this is why property means so much more to the poor, to the dispossessed, than to the wealthy man. To a rich man, that bar of gold may just be a day’s wages—but to the poor man, it represents his dreams, his future, his family; it represents his daughter’s wedding and his granddaughter’s education; it represents his wife’s life after he dies; it represents his home and his legacy. Frederick Douglass once reflected on how he felt when he had finally escaped slavery and found employment in the north. “To understand the emotion which swelled my heart as I clasped this money,” he said, “realizing that I had no master who could take it from me—that it was mine— that my hands were my own, and could earn more of the precious coin—one must have been in some sense himself a slave . . . I was not only a freeman, but a free-working man, and no Master Hugh stood ready at the end of the week to seize my hard earnings.” [85] The common misunderstanding of the nature of wealth may be accidental, or may be intentional, or may be the result of lazy thinking, [86] but either way, it is a real danger to both personal and economic liberty. But it also gives ground for hope—the first of three important factors which I think are going to increase the protection for economic liberty in the coming years, and help to close up this dichotomy. The first factor is, like so many things in the news today, an outgrowth of the Internet. First, the Internet is serving as a real example to Americans of the meaning of the “open society.” A vast array of opinions and ideas, of services and products, are available on the Internet, making it a literal marketplace of ideas. Everything from childish doodling to profound philosophical insight to bizarre racist ranting to full texts of great literary classics are available for instantaneous access. Second, access to the Internet has allowed thousands of people to begin personally trading on the stock market. These “day-traders” are not rich capitalist pigs, but ordinary people who invest their money and enjoy the challenge, and the freedom, that comes from being able to control their finances themselves. Just as purchasers on eBay are actually learning first hand how economics works, day-traders are seeing, in daily experience, the connection between their personal decisions, and their economic rights. The unity argument—the idea of “commercial speech”—is very real to them. Recently, the Commodity Futures Trade Commission announced a plan to regulate newsletters that had to do with stock trading, even when those newsletters were produced by private individuals, and not by big faceless corporations. [87] The Institute for Justice immediately challenged the FTC, and the Commission backed down. [88] A few months later, the Occupational Safety and Health Administration announced that its regulations concerning workplace safety were applicable to those who worked out of their homes. [89] In other words, people who “telecommute” or run their own private businesses could be ordered to install handicapped access, or to stop smoking. When Rush Limbaugh and other radio talk show hosts alerted their listeners about this, OSHA backed down. [90] Ironically, one of Marx’s predictions is coming to pass: workers are becoming owners of the means of production. But they’re not doing it through socialism; private individuals are becoming capitalists, and they are becoming keenly aware of the real personal effect of government regulations that a century ago seemed only to apply to a small group of vaguely unreal tycoons. Note the similarity between this development and the changes in tort law in the past century and a half. Tort law has been described as the child of railroads, because so many tort cases involved liability for railroads. But today, hardly anybody rides on trains; they use cars. So tort law, once concerned with the large-scale torts caused by trains (which cut across whole states, and could burn down whole cities with their sparks), is focusing more on personal wrongs and individual duties, because cars are generally ridden and driven by single individuals. Another example from property law, at common law an easement in gross could not be transferred to a third person.
Legal evolution is a long process, but it is coming: economic regulations which once seemed so obscure, controlling only a small group of wealthy investors, will have to become responsible instead to a much larger group of private everyday people, who just happen to have stock portfolios. Everyday people are feeling the personal nature of wealth that Frederick Douglass described. They work to earn money—which they then invest. They own the homes that OSHA wanted to invade. They print the newsletters that the FTC wanted to regulate. They are workers and they are capitalists. They feel about their private property the same way that they feel about their right to free speech. I have already said that property rights protect the poor more than the rich, and the work of public interest law firms such as the Institute for Justice or the Pacific Legal Foundation, which defend the economic rights not of vast corporations, but of private individual entrepreneurs, is bringing this fact down to a personal level. However, more activism is needed. Public interest law firms should focus more on these small, individual cases, and less on the ostensibly more important high-profile cases. [92] The second factor is, of course, the fall of the Berlin Wall. Communism is far from dead: one out of every five people on Earth is still a slave, without the freedoms of speech, press, religion, or contract. [93] However, the psychological result of the 1989 revolutions is still strong: walls are coming down, and the only future the world has is with greater interrelations and economic activity. Again, the Internet is important here and so is the growth of what Virginia Postrel has called “dynamism,” not just in political science, but in culture as well. The popularity of games like “Pokemon” or “Magic,” for instance, is a good sign: these games are dynamic networks, which a child can play with a small number of cards—but the game becomes more complex and interesting as one gets more cards. They are not an authoritarian system of rules, like, say, checkers, where one can move forward, but not backward, diagonally, but not straight—they are games that grow and evolve in complex and unrepeatable patterns. Decentralized decision making and complex patterns of spontaneous order are making their way not just in academia, but also in child’s play. [94] Children are learning to think in the dynamic way of the open society, and they are embracing the opportunities offered by the Internet. Still, education must do more, especially colleges and law schools, where 80.4 percent of law professors are registered Democrats. [95] The Law and Economics school is growing in renown, however it is still poorly represented on many law campuses. The third, and most important, reason to feel optimistic is the progress of the Rehnquist Court. In the past several years, decisions by Scalia, Thomas, and Rehnquist, have shaken the legal establishment a great deal. The “commerce clause,” once thought to grant a blank check of government power to Congress, has been curtailed in decisions like United States v. Lopez. [96] Of course, these are but the tiniest beginnings: Lopez struck down an almost irrelevant Federal law that had been justified only through the most extreme twisting of logic. [97] Yet, it is still progress—and the revulsion felt in the legal establishment is testimony to that fact. Take another example, the recent ruling in the tobacco case. [98] The Court held that the Congress had not granted the Food and Drug Administration the right to regulate tobacco, because if it had, the FDA would have had to simply ban tobacco, and they had not. [99] A simple, straightforward, logical ruling, which threw both law professors and Congress into hysterics. Some in Congress immediately moved to grant the FDA the right to regulate tobacco[100] and they will probably end up winning. However, that is not the important part of the ruling. What makes the ruling important is the signal it sends: the FDA has no power to do what Congress has not permitted it to do. This shows the path the Courts must take in the future: first, roll back the plenary power that regulatory agencies have granted themselves; then limit the power of the Congress back to its original Federalist principles, as the Lopez decision does. Then, eventually, we can return the government to the strictly limited position intended by the original Constitution. These three things, the popularity of Internet trading, the fall of communism with the resulting growth of interest in free markets, and the progress of the Rehnquist Court, have done much to close up this gap between the respect accorded property rights and that accorded “personal” rights. Capitalism is no longer a dirty word—the Wall Street Journal recently adopted a new motto: “Adventures in Capitalism,” and a commercial for Suretrade.com features people telling the audience, “I’m not relying on the government. I’m not relying on the businesses. I’m not relying on anyone. I’m e-trading.” Such an unashamed embrace of capitalism would have been unthinkable only twenty years ago. People are becoming more aware of the unity of their rights, of the importance of property to an open society, and of the personal nature of their fight to freedom of contract—a right which, as Justice Blackmun put it, “form[s] so central a part of an individual’s life,” “alters so dramatically an individual’s self-definition,” and contributes so powerfully to the happiness of individuals.” To secure these developments, Congress could pass a simple declaratory resolution that “Economic rights are fundamental human rights.” [101] The fall of communism is allowing the whole world to see the progress that America has made, not just in a social sense, but in that individual sense of personal improvement which we call the “pursuit of happiness.” In addition, the precedents of the Rehnquist Court are beginning a trend towards restraining government to its proper form, which Jefferson once described as
[1] This quotation is usually attributed to Oliver Wendell Holmes, although Frederick Maitland may have beaten him to it. See Jeremy Miller, Rico and the Bill of Rights: An Essay on A Crumbling Utopian Ideal, 104 Com. L.J .336, 339 n.13 (1999). The irony in quoting Holmes here is intentional: Holmes, more than any other jurist, is responsible for the fatuous distinction between “economic” and “personal” rights and for the derogation of the former in Constitutional history. [2] Bowers v. Hardwick, 478 U.S. 186, 204-05 (1986) (Blackmun, J., dissenting) (citations omitted). [3] Virginia Declaration of Rights of 1776, reprinted in 5 The Founder’s Constitution 3 (P. Kurland & R. Lerner eds., 1987). [4] See John Locke, Second Treatise of Civil Government § 6 (Peter Laslett, ed., (1967) (1690) (“For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker . . . they are His Property, whose Workmanship they are . . . [and] there cannot be supposed to be any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of Creatures are for ours.”); see also id. at §172. [5] Id. [6] This was not a new argument when Locke made it. Thirty years earlier, John Milton’s Adam had said to the Archangel Michael:[God] gave us onely over Beast, Fish, Fowl Dominion absolute; that right we hold By his donation; but Man over men He made not Lord; such title to himself Reserving, human left from human free. John Milton, Paradise Lost 12:63-71 (1674) reprinted in The Student’s Milton (Frank Allen Patterson ed., 1933). [7] James Madison, On Property, in Madison: Writings 515 (Jack Rakove, ed., 1999); see also Locke, supra note 4 at § 173 (“By Property I must be understood here, as in other places, to mean that Property which Men have in their Persons as well as Goods.”). [8] In Griswold v. Connecticut, 381 U.S. 479 (1965), Justice Goldberg wrote that “In determining which rights are fundamental, judges . . .must look to the traditions and [collective] conscience of our people to determine whether a principle is ‘so rooted [there]. . . as to be ranked as fundamental.’ The inquiry is whether a right involved ‘is of such character that it cannot be denied without violating those “’fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’” Id. at 493 (citations omitted). Considering that property and contract rights are repeatedly mentioned in the Constitution, while the right to use birth control is not, one would think that economic rights would deserve even more protection by this test than would the birth control at issue in Griswold. [9] United States. v. Carlton, 512 U.S. 26 (1994). [10] I use “liberal” in the contemporary colloquial sense to describe those who emphasize the rights of conscience over rights of property; those often aligned with the American Democratic, Green, or Peace and Freedom parties. This group would include, for instance, former President Bill Clinton, Senator Edward Kennedy, Justices William O. Douglas and Thurgood Marshall, and most law professors. See Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning 73 N.Y.U. L. Rev. 1377, 1463 n.321 (1998) (noting that over 80 percent of law professors are registered Democrats). Note that liberals are not always consistent even within this ideological framework. The freedom of speech on college campuses, for instance, is often hampered by speech codes formed by the same liberals who, 35 years ago, rioted and protested against speech codes. See, e.g., Alan Kors and Harvey Silverglate, The Shadow University: The Betrayal of Liberty in America’s Campuses (1999); Dinesh D’Souza, Illiberal Education: The Politics of Race and Sex on Campus (1991); Stephen Goode, Fighting the Thought Police, Insight (April 22, 1991). I refer to this group as “liberals” in order to differentiate them from libertarians, often called “liberals” by other commentators, who believe in private property rights and the personal rights of conscience, and in a minimal state to secure both; famous libertarians would include Milton Friedman, Ayn Rand, Thomas Jefferson, Robert Nozick, or Friedrich Hayek. “Conservative” here denotes those who tend to favor property rights over the rights of conscience: for instance, Robert Bork, who, although opposing antitrust laws, still favors government censorship, and even blames the ownership of transistor radios for lewd behavior in the sixties. See Robert Bork, Slouching Toward Gomorrah 23 (1996) (approving of communist Yugoslavia’s ban on rock music “because it was subversive of authority.”) Like liberals, conservatives are not always consistent; however, conservative proposals to censor the Internet conflict with the economic rights of those who run Internet pornography businesses, for instance. The inconsistencies of these groups are causing them to gradually converge, for reasons masterfully described in Virginia Postrel’s important book, The Future and Its Enemies (1998); see also Margaret Atwood, The Handmaid’s Tale (1986), a novel of a dystopian future in which women have been deprived of all personal and economic freedoms by a coalition of ultra-feminist and ultra-conservative forces. [11] United States v. Carlton, 512 U.S. 26 (1994). [12] Id. at 41-42. [13] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). [14] Id. [15] Id. [16] See Harry Jaffa, Original Intent and the Framers of the Constitution: A Disputed Question (1994). [17] Id. [18] Dred Scott, 60 U.S. (19 How.) at 407-10. [19] Quoted in Ken Burns’ The Civil War, episode 1 (Corporation for Public Broadcasting 1990). [20] United States v. Carolene Products, 304 U.S. 144 (1938). [21] Id. at 152 n.4. [22] Id. at 152 n.4. [23] See Korematsu v. United States, 323 U.S. 214 (1944). [24] Home Building & Loan Ass. v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J. dissenting). [25] See U.S. Const. Art. I, §10(1) “No state shall . . . pass any . . . law impairing the obligation of contracts . . . .” See also id. Art. VI, §1, “All debts contracted and engagements entered into before the adoption of this constitution, shall be as valid against the United States under this constitution, as under the confederation.” The founders had a very high regard for the importance of contract rights. “[L]aws impairing the obligations of contracts are contrary to the first principals of the social compact.” James Madison The Federalist Papers No. 44. This is the only time Madison explicitly refers to social compact theory in the entire Federalist. See Gary Rosen, American Compact: James Madison and the Problem of Founding 16 (1999). [26] Quoted in Warren Burger, It is So Ordered: A Constitution Unfolds 159 (1995). [27] See Bernard Siegan, Economic Liberties and the Constitution 23 (1980) (suggesting that “the ideological gap may not be so immense as commonly supposed”). [28] Tinker v. Des Moines Ind. Sch. Dist., 393 U.S. 503 (1969). [29] Cohen v. California, 403 U.S. 15 (1971). [30] See Richard Epstein, Takings 138-39 (1985) (“Can anyone find a society in which freedom of speech flourishes where the institution of private property is not tolerated? A country in which there is a free nationalized press?”) Compare Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) with New York Times v. Sullivan, 376 U.S. 254 (1964), or any of a host of other free press cases. Siegan makes an illuminating analogy between economic regulation and censorship of expression; see supra note 21, at 260-63. [31] R.A.V. v. St. Paul, 505 U.S. 377, 386 (1992). [32] Id. [33] Adam Smith, 1 An Inquiry into the Nature and Causes of the Wealth of Nations 145 (R.H. Campbell & A.S. Skinner, eds., 1976) (emphasis added). Like Locke and Madison, Smith believed that “[t]he property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable.” Id. at 138. [34] Lynch v. Household Fin. Corp., 405 U.S. 538, 522 (1972). Cf. Buckley v. Valeo, 424 U.S. 1 (1976) and Nixon v. Shrink Miss. Gov’t PAC, 528 U.S. 377 (2000) (cases that are complex precisely because one side sees itself as regulating only “economic” rights, while the other sees these regulations as limits on the “personal right” of free speech). [35] The term “open society” is adapted from Karl Popper, Open Society and Its Enemies (2 vols., 5th Ed. 1971). [36] See Simon Jackman, Liberalism, Public Opinion, and Their Critics in The Flight From Science and Reason 346 (Paul Gross and Norman Levitt, eds., 1997). Describing Mill’s ideas, Jackman writes, “The pursuit of happiness is aided by better understanding of nature, the economy, political institutions, and so on. In this way, science itself is part of the justification for [libertarianism]. Free speech, a key [libertarian] guarantee, is cherished not as a right in itself but because it promotes the generation of knowledge. The overall picture is rather sanguine and even familiar: experienced and reasoned discussion generates knowledge, and since knowledge makes for greater enjoyment of the world, political institutions should be designed so as to ensure vigorous, wide-ranging, untrammeled discussion.” Id. at 349; see also Postrel supra note 8; Bronowski, infra note 32. [37] New York Times v. Sullivan, 376 U.S. 252, 270 (1964). See also Whitney v. Calif., 274 U.S. 357, 375-76 (1927) (“Believing in the power of reason as applied through public discussion, [the founders] eschewed silence coerced by law.” Id. [38] Jacob Bronowski, Science and Human Values 61 (Rev. ed. 1965) (1956). [39] Id. at 62; see also Popper, supra note 29, 1:120-37. [40] John Milton, Aeropagiticia in Patterson, supra note 4 at 749. [41] Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring). [42] See Ayn Rand, Capitalism: The Unknown Ideal 11-12 (1966): “The right to agree with others is not a problem in any society; it is the right to disagree that is crucial. It is the institution of private property that protects and implements the right to disagree—and thus keeps the road open to man’s most valuable attribute (valuable personally, socially, and objectively), the creative mind.” [43] James Madison, Speech in the Virginia Constitutional Convention, reprinted in Rakove, supra note 6, at 824. [44] Id. [45] See Baker v. Carr, 369 U.S. 186 (1962). [46] Frothingham v. Mellon, 262 U.S. 447 (1923). Despite the Court’s modification of Frothingham in Flast v. Cohen, 392 U.S. 83 (1968), the rule remains that no matter how much a citizen has had taken from him in taxes, he must show some other injury to have standing to sue the government, and then must show that the program he sues over is specifically prohibited by the Constitution. This is another operation of the Carolene Products presumption of Constitutionality; see supra note 15; see also Richard A. Epstein, Standing and Spending-The Role of Legal and Equitable Principles, 4 Chap. L. Rev. 1 (Spring 2001). [47] Whitney, 274 U.S. at 375-76. [48] See infra, text accompanying note 86. [49] Here we see the historical travesty of both the Dred Scott and Blaisdell cases. In Dred Scott, Justice Taney simply lied when he claimed that the Founding Fathers regarded blacks “as an article of property,” 60 U.S. at 408, and . . . [that t]his state of public opinion had undergone no change when the Constitution was adopted. . . .” 60 U.S. at 410. In fact, only one member of the Constitutional Convention defended slavery (and only on the grounds that other societies had done the same thing) the rest denounced it, including Governor Morris, whose speech against slavery was the roundest and most passionate talk given at the Convention. M. Farrand, 2 Records of the Federal Convention 221-23 (1937). Likewise, in Blaisdell, the Court held that the founders did not really mean that contracts should not be impaired, because they had never experienced suffering like the 1929 Depression. They “would have interpreted the clause differently had they had occasion to assume that responsibility in the conditions of the later day.” 290 U.S. at 443. The Minnesota law wiping out debts was a “growth from the seeds which the fathers planted.” Id. at 444. The Court therefore entirely ignored the many problems over debts and economic downturns which the founders did experience, including Shay’s Rebellion, a 1786 uprising against creditors and landlords, which was largely responsible for the calling of the Convention. [50] Quoted in Leonard Peikoff, The Ominous Parallels 10 (1982). “Communitarianism” actually shares a great deal in common with fascism. See Walter Laqueur, Fascism: Past, Present, and Future (1996). As Laqueur points out, early German fascists “complained about the growth of materialism, as both a philosophy and a way of life, about the decline of spiritual values, about the effects of industrialization on one hand and laissez-faire capitalism on the other, and about the fragmentation of society and the breakdown of old ties. They noted with sorrow the growing cultural sterility and predicted that without a revival of the national community (the Volk), the general decadence that had already set in would continue inexorably, gather momentum, and eventually lead to total ruin.” Their solution “was to be based on a regeneration of the Volk, a return to traditional values, and the restoration of a community in which a natural hierarchy would exist . . . .” Id. at 23-24. [51] As Carlos Ball writes, “Communitarians are critical of the priority that liberals give to individual rights; although communitarians do not deny that rights are important, they do question whether a society should emphasize individual rights over communal norms and responsibilities when confronting difficult questions of political morality and justice. Communitarians believe that the liberal focus on rights leads to the separation and displacement of individuals from the communities to which they belong. According to communitarians, rights are not preexisting, universal principles that are logically prior to community; instead, rights are internal to the shared traditions and understandings of particular societies. Communitarians also question the [libertarian’s] conception of state neutrality that seeks to separate the right from the good. State neutrality regarding different, and often conflicting, conceptions of what constitutes a ‘good life’ is important to [libertarian]s because it allows individuals to choose the lives that they think are best for them. A state that is neutral as to ends does not impose its version of the good on its citizens . . . Communitarians. . .believe that it is entirely proper for the state to promote particular conceptions of the good. Communitarians ask that the state cultivate certain values, such as civic virtue, self-respect, and social responsibility, which encourage individuals to participate actively in their own communities and self-government. A truly just and democratic society is created when individuals are active participants in the many communities to which they belong. This sense of communal participation and belonging promotes individual freedom and a true connection with, and responsibility toward, others. Carlos A. Ball, Communitarianism and Gay Rights, 85 Cornell L. Rev. 443, 443-45 (2000). Note that Ball’s definition of “communitarian” would include both liberals and conservatives. See supra, note 8. See also Aeon Skoble, Community Rules, 14 Policy I (Autumn, 1996)(Visited May 18, 2000). <http://www.cis.org.au/Policy/autumn98/aut98o8.htm> (reviewing Amitai Etzioni, The New Golden Rule: Community and Morality in a Democratic Society (1998) and noting that “there is a coherent theme lurking in [communitarianism]: that society is worse off for allowing individuals to be self-determining, because they may act in ways which undermine the common good.”) [52] Robert Bork, The tempting of America: The Political Seduction of the Law 121-22 (1990). [53] See, e.g., Alexis de Tocqueville, Democracy in America 205 (George Lawrence trans., J.P. Mayer ed., 1966) (1835). (“In America, [military] conscription is unknown; men are induced to enlist for pay. Compulsory recruitment is so contrary to the conceptions and alien to the habits of the people of the United States that I doubt whether anyone would ever dare bring in such a law.”). [54] Robert Bork, The tempting of America: The Political Seduction of the Law 121-22 (1990). [55] Locke, supra note 4 at § 57 (emphasis added). [56] This is one of the most important differences between Locke and Hobbes. Where Hobbes believes that the State of Nature is a chaotic belum omnium contra omnes, Locke holds that there is a natural order within the State of Nature. Locke’s natural order is a logical order within the form of natural freedom, a sort of “spontaneous order”; but, again, Milton beat Locke to this point. Compare Locke, id. at § 6 (“The State of Nature has a Law of Nature to govern it . . . And Reason . . .is that Law . . .”) with Milton’s Paradise Lost 9:653-54 (“we live/Law to ourselves, our Reason is our Law.”) This distinction also formed the basis for the conflict between Abraham Lincoln and Stephen Douglas during their famous debates in 1858. Douglas argued that “freedom” meant the right of people to decide whether or not to enslave other people. Lincoln had remarked that this definition of “popular sovereignty” meant that if one man wished to enslave another, no third man had any right to object. See Abraham Lincoln, Address at the Cooper Union, Feb. 27, 1860, reprinted in 3 Collected Works of Abraham Lincoln 538 (R.P. Basler, ed., 1953). This debate continues today. Communitarians insist that libertarianism ignores the importance of social interaction, and is a philosophy of “atomistic individualism.” See, e.g., Richard Weaver, Ideas Have Consequences (1948); Robert Nisbet, The Quest for Community (1953). But See Tom G. Palmer, Myths of Individualism, 18 Cato Policy Report 5, Sept/Oct. 1996. (“Libertarianism is not . . . an absurd theory about ‘abstract individuals.’ Nor is it an anomic rejection of traditions . . . . Rather, it is a political theory that emerged in response to the growth of unlimited state power . . . Libertarians are separated from communitarians by differences on important issues, notably whether coercion is necessary to maintain community, solidarity, friendship, love, and the other things that make life worth living and that can be enjoyed only in common with others.”). [57] See Douglas Kmiec, Property and Economic Liberty as Civil Rights: The Magisterial History of James W. Ely, Jr. 52 Vand. L. Rev. 737, 759 (1999)([This argument] “is in the end a disguise for the further separation of property from ownership. Once that separation happens, property is no longer a secure means for individual human flourishing, but only a policy to be pursued as it fulfills the wishes of the state.”). See also Skoble, supra note 44. (“There’s a hint of old-world fascism in [communitarians’] concept of the community as an organic whole.”). [58] Letter from Thomas Jefferson to James Monroe (May 20, 1782) reprinted in Jefferson Writings 779 (Merrill Peterson ed., 1984). [59] See, e.g., R.J. Rummel, Death by Government (1997); Stephanie Courtois, Et Al., The Black Book of Communism (1999). [60] This, of course, is the “tyranny of the majority” that Alexis De Tocqueville warned about. Government, he says, “covers the whole of social life with a network of petty, complicated rules that are both minute and uniform, through which even men of the greatest originality and the most vigorous temperament cannot force their heads above the crowd. It does not break men’s will, but softens, bends, and guides it; it seldom enjoins, but often inhibits action; it does not destroy anything, but it prevents much from being born . . . .” Tocqueville, supra note 46, at 667. The tragedy of bad economics is that the small injustices are so often unseen. How many people see the jobs that minimum wage laws stifle before they are even created? See infra note 57. How many people notice the small industries that never come into existence because of the burden of regulations and taxes? Moreover, how many people notice the plight of poor minorities who could have a chance to change their situation were it not for these restrictions? Cf. Frederic Bastiat, “What Is Seen And What Is Not Seen,” reprinted in Selected Essays on Political Economy 1-50 (trans. Seymour Cain, ed., George B. de Huszar, Van Nostrand, 1964). [61] Kmiec, supra note 49, at 755; see JAFFA, supra note 12, at 94-95 (“The Framers of our Constitution clearly and wisely believed that there must be a lawfulness antecedent to positive law for positive law itself to be lawful . . . The ‘consent of the governed’ from which ‘the just powers’ of government are derived id intelligent or enlightened consent; it is not anything whatever to which men may agree.”). [62] Nixon, 528 U.S. at 399. [63] Id. [64] See Alan J. Meese, Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of The Due Process Clause, 41 Wm. & Mary L. Rev. 3, l0 (1999) (“[N]one of the translations suggested by Justice Souter and others justifies the modern bifurcation between economic and other liberties.”). [65] 304 U.S. at 152. [66] Id. at 152 n 4. [67] See Nixon, 528 U.S. at 400. (“[A] decision to contribute money to a campaign is a matter of First Amendment concern—not because money is speech (it is not); but because it enables speech.”) [68] For example, minimum wage laws increase unemployment, especially among poor minorities. See Milton Friedman, Free to Choose 237-238 (1980) (describing the minimum wage as “one of the most, if not the most, antiblack laws on the statute books”). [69] Take, for example, the laws involved in Carolene Products, supra note 15, and Lochner v. New York, 198 U.S. 45 (1905). The law in Lochner restricted companies in New York from requiring employees to work more than a specified number of hours. But this law was not passed out of a humane concern for overworked laborers—indeed, the Plaintiff was suing so that he could work longer. The law was written to protect established factories against upstart competitors. See Meese, supra note 56, at 42-43. Likewise, Carolene Products was “unrelated to any bona fide health concerns but was instead a thinly disguised effort by the dairy industry to destroy a more nutritious and inexpensive competing product.” Id. at 59. Such economic protectionism has nearly always been led, not by the poor, but by the wealthy, seeking to protect their status quo. See generally Henry Hazlitt, Economics In One Lesson (1948); George Reisman, Capitalism: A Treatise on Economics (1996) at ch. 10. [70] Shelley v. Kraemer, 334 U.S. 1 (1948). [71] Id. [72] Id. at 10. [73] Of course, Aristotle had the answer to this thousands of years before. “[T]hat which is common to the greatest number has the least care bestowed upon it. Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual.” Aristotle, Politics, in 2 The Complete Works of Aristotle 2002 (Jonathan Barnes, ed., 1984). Economists such as Ludwig von Mises have followed Aristotle to show that, in an economy in which property is held in common, no decisions can be made. The price system will break down; gold will become as cheap as glass, and one will have no way to determine the more efficient choices in production. This “price problem” is why the Soviet Union often found itself with surpluses of luxury items—and famine among the poor. Ludwig von Mises, Liberalism: The Classical Tradition 70-75 (l996); Reisman, supra note 61, at chapter 6. Like Buridan’s ass, unable to decide between two equally tall piles of hay, the socialist man starves to death surrounded by riches. Prices do more than recompense workers—they pass on information. Cf. Friedman, supra note 60, at 13-24. The Supreme Court has ruled that individuals have the “right to receive ideas.” Why should this not extend as well to the information conveyed by pricing? See generally 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 496 (l996) (noting that it “was error to assume that commercial speech was entitled to no First Amendment protection or that it was without value in the marketplace of ideas”). In other words, the information which is conveyed by prices tells a buyer what goods are more efficient for him to purchase. However, when government policies—such as inflationary practices—obscure that information, transaction costs rise as well. Query whether this might not be regarded as a taking. See infra text accompanying note 70. [74] For an example of the bewildering variety of campaign finance limitations, see Edward D. Feigenbaum and James A. Palmer, Campaign Finance Law 98: A Summary of State Campaign Finance Laws with Quick Reference Charts (last visited Apr. 29, 2000) <http://www.fec.gov/pages/cflaw98.htm.> [75] Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995). [76] Cf. Robert Nozick, Anarchy, State and Utopia 161-64 (1974) (“Any distributional pattern with any egalitarian component is overturnable by the voluntary actions of individual persons over time.”). [77] Kmeic, supra note 49, at 759. [78] See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980). In this case, the California Constitution permitted people to express themselves at a shopping mall, despite the shopping mall owners’ wish to exclude them. Although the Court held that the Federal Constitution’s First Amendment rights did not require a mall to allow people to express themselves on that property without the mall owners’ consent, this did not “limit the authority of the State . . . to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Id. at 81. The equivocation here is in the definition of “individual liberties.” Under this role, the state could conceivably “adopt in its own constitution” a “more expansive” individual liberty such as, say, a right to own fancy cars paid for by tax dollars, and the Supreme Court would have to pass on it. However, the California law did not “expand” liberty, any more than it would expand my liberty for the state to legalize my beating up old ladies. The law was a restriction of both the right of private property (in the owners’ right to exclude people from entering on the land) and of the right of free speech (in the owners’ desire to not express themselves on the issues involved). [79] Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). [80] Thomas Jefferson, Statute of Virginia for Religious Freedom, reprinted in Peterson, supra note 50, at 346. [81] See generally, Friedrich Hayek, The Constitution of liberty (1960). [82] See supra note 64. One of the greatest—yet rarely discussed-—problems of the Drug War is the level to which it may be impairing scientific research. Cocaine, heroin, marijuana, all may hold the keys to important new medicines. Yet, anti-dug laws heavily restrict research on them. See Paul Amentano, “The War Against Drug-Speech,” Idea on Liberty (June 2000) at 19. [83] The spiritual nature of private property, and the virtues inherent in it, are nowhere more beautifully illustrated that in Ayn Rand, Atlas Shrugged (1957). [84] See generally Burton W. Folsom, Jr., The Myth of the Robber Barons (3d Ed., 1996); Nathan Rosenberg & L.E. Birdzell, Jr., How the West Grew Rich (1986). [85] Frederick Douglass, The Life and Times of Frederick Douglass, reprinted in Frederick Douglas: Autobiographies 654 (Henry Louis Gates, ed., 1994) (1892). See also C.P. Snow, The Two Cultures and the Scientific Revolution, reprinted in PUBLIC AFFAIRS (C.P. Snow, ed. 1971) (1959) (arguing that “[i]ndustrialization is the only hope for the poor). [86] Julie E. Cohen, for example, dismisses concern for freedom of contract with a flippant horselaugh, “Numerous critics within both economics and law have charged that the neoclassical market model, while possessed of considerable theoretical elegance, is descriptively inadequate and institutionally myopic.” Lochner in Cyberspace: The New Economic Orthodoxy of ‘Rights Management,’ 97 Mich. L. Rev. 462, 474 n.36 (1998). She criticizes what she calls “an outmoded, over-narrow way of thinking about state and federal economic regulation; it goes without saying that hardly anybody takes the doctrine it represents seriously.” Id at 463. Yet Cohen does acknowledge whom some of these “hardly anybody” are, and they include prominent scholars such as Richard Epstein, Bernard Seigan, id. at 463 n.4, and Nobel Laureate Friedrich Hayek, id. at 474 n.36. One might add Nobel Laureates James Buchanan, and Milton Friedman, as well as Professor Randy Bamett and Judge Richard Posner. Quite a list of notables to qualify as “hardly anybody!” Moreover, while Cohen was writing, the walls of Eastern Europe were crumbling down, opening nation after nation to the free market, and at home, America entered on one of the longest sustained periods of economic growth in history, largely due to venture capitalists on the Internet. Even Eduardo Penalver, no laissez-faire capitalist, acknowledges, “The post-Soviet era has seen the growth of a consensus around [libertarian] markets and property rights.” Redistributing Property: Natural Law, International Norms, and the Proper Reforms of the Cuban Revolution, 52 Fla. L. Rev. 107, 109 (2000). “Socialism was an intellectual invention, from Saint-Simon to Lassalle, from Marx to Gramsci, and through the hundreds of byways of Marxism which are now all ending in the sewers of discarded history.” Ralf Dahrendorf, Reflections on the Revolution in Europe 73 (1990). Despite this worldwide confirmation of the ideas of Adam Smith, Cohen dislikes the principles of the free market because they “mask the need for first-order social welfare choices about the sort of society we want to have.” Cohen at 464. Cohen—who of course is the “we” in question—wishes to determine how others will be permitted to use their property, in order to create the society she deems “fair.” [87] See Institute for Justice, First Amendment Lawsuit Ends CFTC’s Campaign Against On-Line Publishers and Software Developers, http://www.ij.org/media/lammend/cftc/index.html (last visited Mar. 6, 2000); Brian Doherty, Writer Registration, Reason Nov. 1999, at 31; John Simons, CFTC Regulations On Publishing Are Struck Down, Wall St. J., June 22, 1999, at C23. [88] Id. [89] See Walter Olson, Office Managers, Reason, Apr., 2000 at 58: Michael Kinsman, Issue of Workplace Safety Might Show up Much Closer to Home, San Diego Union-Tribune, Jan. 31, 2000 at Cl; Mike Dorning, OSHA Backs Down on Home Work Rules, CHI. TRIB., Jan. 28, 2000 at 6; Stephanie Armour, OSHA Switch Unlikely to Affect Telecommuters, USA TODAY, Jan. 28, 2000 at Bl. [90] Id. [91] Jesse Dukemenier and James Krier, Property 830 (4th ed., 1998). [92] See Clint Bolick, The Grass-Roots Legal Reform Movement, in Between Power and Liberty: Economics and the Law 75-83 (Richard Ebeling, ed., 1998) (description, by an Institute for Justice founder, of the goals and achievements of IJ and similar law firms). [93] The combined population of China, Cuba, North Korea, Laos, and Vietnam is 1,357,268,048. The world population in 1998 was approximately 5,927,000,000. Thus about 1 out of every 4.36 human beings lives without the freedoms of speech, religion, press, or contract. See Info. Please Almanac, <http://www.infoplease.com> (last visited May 1, 2000). This figure does not include the populations of Iraq, Iran, and other countries where these rights are also severely restricted. [94] See generally Douglas Rushkoff, Playing the Future (1996). [95] See Sisk et. al., supra note 8. [96] United States v. Lopez, 514 U.S. 549 (1995). [97] Id. [98] F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). [99] Id. [100] Hastert, Testing GOP Interest in FDA Tobacco Regulation, Congress Daily, Apr. 14, 2000; Gil Klein, Lawmakers Jump at Chance to Let FDA Regulate Tobacco, Tampa Tribune, Apr. 7, 2000 at 5. [101]
In Free to Choose, supra note 60, Milton Friedman proposed
a similar resolution in the form of some Constitutional amendments, including
a “portmanteau free trade amendment”: “The right of
the people to buy and sell legitimate goods and services at mutually acceptable
terms shall not be infringed by Congress or any of the States.”
Id. at 304-09. My proposal has [102] Thomas Jefferson, First Inaugural Address, reprinted in Peterson, supra note 50, at 494.
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