Reason Magazine - Contributors > Damon W. Root

Arming America

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

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

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

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

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

So let's consider the origins of the Fourteenth Amendment, which states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As legal historian Michael Kent Curtis makes clear in his definitive book, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, the radical Republicans who drafted and then spearheaded the 1868 ratification of the amendment clearly intended and understood it to apply the entire Bill of Rights to the states.

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

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

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

Damon W. Root is an associate editor of reason.

A Man's Home is Another Man's Castle

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

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

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

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

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

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

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

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

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

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

Damon W. Root is a reason associate editor.

The Body is a Terrible Thing to Waste

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Damon W. Root is a reason associate editor.

Liberty for All

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

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

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

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

While Paul is certainly right that eminent domain abuse must be aggressively fought on the local level, he's wrong that we should skip the federal fight. As the Fourteenth Amendment declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." Yet in Paul's mistaken opinion, this potentially libertarian amendment has no impact on the actions of state or local governments. Legal historians, however, have long agreed that the Fourteenth Amendment was originally meant to apply the Bill of Rights (and other natural rights) to the states.

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

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

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

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

Damon W. Root is a reason associate editor.

Supreme Anxiety

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Damon W. Root is a reason associate editor.

The Party of Jefferson

info@reason.com (Damon W. Root) — Tue, 27 Nov 2007 06:48:00 EST

According to a December 2004 survey by the Pew Research Center, about 9 percent of the electorate —enough to carry a tight race—prefers candidates who offer the basic libertarian mix of fiscal conservatism and social tolerance. With Republicans apparently uninterested in pleasing the libertarian segments of their coalition, some liberals and libertarians—Daily Kos blogger Markos Moulitsas, former Democratic National Committee press secretary Terry Michael, and Reason contributor Matt Welch among them—have suggested an alternative: the libertarian Democrat, the sort of liberal who favors both free speech and free trade, both the right to bare pornography and the right to bear arms.

It’s far from clear, however, that the Democratic Party has room for candidates who favor a smaller, less intrusive government. But it did once. The Democratic Party actually has a very distinguished libertarian legacy, one that combined principled anti-imperialism, respect for economic liberty, and a firm commitment to civil rights. If the would-be libertarian Democrats are looking for a historical model, they should consider the Boston attorney Moorfield Storey (1845–1929).

A fierce critic of imperialism and militarism, Storey was a founder and president of the Anti-Imperialist League, which opposed U.S. annexation of the Philippines after the Spanish-American War and counted Mark Twain, Andrew Carnegie, and President Grover Cleveland among its members. An advocate of free trade, freedom of contract, and the gold standard, Storey also helped organize the independent National Democratic Party, also known as the Gold Democrats, who fought the anti-gold populist William Jennings Bryan’s presidential bid in 1896. An individualist and anti-racist, Storey was the first president of the National Association for the Advancement of Colored People (NAACP), where he argued and won the group’s first major Supreme Court victory, Buchanan v. Warley (1917), a decision that relied on property rights to strike down a residential segregation law.

Born in Roxbury, Massachusetts, in 1845, Moorfield Storey was a successful lawyer whose politics tended toward “good government” reform until the mid-1890s. Then came the presidential election of 1896, when the Democrats selected the agrarian insurgent William Jennings Bryan as their candidate. Bryan’s chief cause was “Free Silver,” a call for the government to coin unlimited amounts of silver at an artificially inflated rate. As the historians David and Linda Beito have noted, “the result would have been a pell-mell rush of silver holders to exchange their metal for dollars, and hence rapid dollar inflation and a corresponding depreciation of the currency.” Bryan expected and welcomed this result, believing it would put cheap dollars in the hands of debt-ridden farmers, leaving the banks and other hated creditors to absorb the losses.

Opposition to Bryan’s “50-cent Democrats” fractured the party. (Republicans were mostly united against Free Silver.) The luminaries in the Democratic gold camp included President Cleveland, Treasury Secretary John C. Carlisle, Nation publisher E.L. Godkin, Agriculture Secretary J. Sterling Morton, and textile manufacturer Edward Atkinson. They also included Storey, who denounced Free Silver to an audience of fellow Cleveland Democrats as a scam “organized and promoted by men directly interested in the promotion of that metal.” From this opposition emerged the Gold Democrats, a third party that offered its nomination to Cleveland and, after he turned it down, ran Sen. John C. Palmer (D-Ill.) for president instead. (Cleveland himself encouraged but never formally endorsed Palmer’s ticket.) Palmer’s anti-Bryan campaign drew just 134,000 votes, less than 1 percent of the total. But the same split that divided the party drove many Democrats to support the pro-gold Republican William McKinley, who beat Bryan by a decisive 600,000 votes, collecting 271 electors to Bryan’s 176.

William McKinley’s Wars
Though pleased at Bryan’s defeat, Storey saw little reason to cheer the new president. For one thing, there was McKinley’s support for high trade barriers—arising, Storey said, from McKinley’s ties to businessmen who “wish[ed] the taxing power of the government used to increase the value of their products.” The president’s signature on the tariff-hiking Dingley Act in 1897 did little to change Storey’s mind. But the worst was still to come.

In Cuba, armed rebels were fighting to end four centuries of Spanish rule. The Spanish responded with mass arrests and the infamous reconcentrado camps, pen-like enclosures where both guerrilla fighters and innocent civilians were herded and “pacified” through brutal methods ranging from torture to deliberate starvation.

With such drama unfolding just 90 miles off the Florida coast, America’s yellow press worked overtime, loudly trumpeting the call for armed intervention and “Cuba Libre.” For those with expansionist sympathies, particularly the officers, journalists, and politicians orbiting the charming and pugnacious assistant secretary of the Navy, Theodore Roosevelt, the Cuban revolt was an opportunity to extend Old Glory’s reach. After the USS Maine exploded in Havana Harbor on February 15, 1898, Congress and the White House agreed, and on April 19, the United States declared war on Spain. “The condition of affairs in Cuba is a constant menace to our peace, and entails upon this government an enormous expense,” President McKinley said in his war message to Congress. “It is no answer to say that this is all in another country, belonging to another nation, and is therefore none of our business. It is specially our duty, for it is right at our door.”

In victory, the U.S. acquired Cuba, Puerto Rico, and Guam, which were granted a relative degree of liberty and self-government, and the Philippines, which were not. In the opinion of the Filipino rebels, who had also fought the Spanish and had allied with U.S. Admiral George Dewey after his naval victory at Manila Bay, the Philippines deserved the same freedom as Cuba. Instead, it got an American occupation followed by a full-scale war.

“The first blow was struck by the inhabitants,” McKinley declared, referring to a minor and otherwise forgettable skirmish between closely situated U.S. and Filipino troops. “They assailed our sovereignty, and there will be no useless parley, no pause, until the insurrection is suppressed and American authority acknowledged and established.” And so the Philippine War came.

Storey had already opposed the fully declared Spanish War, which he denounced as an act of imperialist meddling, but he was especially outraged by McKinley’s undeclared war in the Philippines. (Even Cleveland, a member of the Anti-Imperialist League, had been too much of a sabre-rattler for Storey. In 1895, when Cleveland forcefully intervened on Venezuela’s behalf in a border dispute with British-held Guiana, Storey declared that the administration’s “demagogues go too far in the way of rousing the jingo feeling.”) In his devastating 1926 post-mortem, The Conquest of the Philippines by the United States, Storey argued that McKinley “sanctioned a war without the authority of Congress, he refused to parley, and he told Congress that the question would not be open until the Conquest by arms had been completed. What wearer of a ‘kingly crown’ could more despotically have dealt with a question of such vital importance to the nation?”

It was the American people, via their elected representatives, Storey maintained, that had the authority to declare war, not “kingly” McKinley. “The President not only has no power to make the decision for them,” Storey raged in a letter to the Wisconsin progressive Robert M. LaFollette, “but has no right to take steps which commit the country to war, so that the people cannot deliberately decide for or against it.”

Today, as the Bush administration claims sweeping new war powers of its own, including the right to detain American citizens without trial and to torture so-called enemy combatants, Storey’s antiwar arguments strike an eerily familiar note.
In Storey’s view, the U.S. government had no right, legal or moral, to impose democracy or any other system on another country. “When the white man governs himself that is self-government,” Storey said, quoting Abraham Lincoln. “But when he governs himself and also governs another man, that is more than self-government—that is despotism.”

Storey found the very idea of an American empire to be toxic. Anticipating Randolph Bourne’s famous observation that “war is the health of the state,” Storey cautioned that “power is always used to benefit him who wields it.” Thus, “the king aims to preserve and strengthen his dynasty. The oligarchy clings to its privileges at the expense of the people.”

Furthermore, Storey correctly worried that the subjugation of the dark-skinned Filipinos would encourage greater racism at home. “The Philippine war has paralyzed the conscience of the Republican party,” he charged. “It cannot denounce the suppression of the Negro vote in the South by any argument that does not return to condemn the suppression of the Philippine vote in Luzon and Samar.”

On this point, Storey was in rare agreement with a figure that might be considered his exact opposite: Sen. Benjamin “Pitchfork” Tillman (D-S.C.). A leading Southern progressive and a close ally of William Jennings Bryan, Tillman was one of the country’s most virulent white supremacists, a man whose political career began with the Red-shirts, a Klan-like terror group that menaced blacks during the start of Reconstruction. Tillman rejoiced at the Philippine War’s implications for the Jim Crow South. “No Republican leader,” he crowed, “will now dare to wave the bloody shirt and preach a crusade against the South’s treatment of the negro.”

Storey was horrified when the Democrats again selected Bryan for president in 1900. Storey held his nose and supported Bryan’s strongly anti-imperialist campaign (which distinguished between the “just” Spanish War and the imperialist Philippine adventure), but he charged afterwards that the party’s resounding failure in that election “is found in Mr. Bryan’s insistent demands that the silver question be also injected in the Democratic banner.” Thus, rather than “giving combat on the clean cut issue of imperialism,” Bryan alienated both Gold Democrats and anti-imperialist Republicans, “who, though vehemently condemning the Philippine policy of their President were unwilling to see their country adopt a false and dangerous system of currency.”

For Civil Rights and Property Rights
Storey ultimately counted more defeats than victories. Despite the Gold Democrats’ efforts, populists and then progressives came to dominate the Democratic Party, signaling the end of classical liberalism and the rise of the big-government liberalism we know today. Meanwhile in the Philippines, McKinley’s bloody and illegal war lasted until the presidency of Woodrow Wilson, leaving tens of thousands of Filipinos and some 4,000 American soldiers dead.

But Storey did achieve one unqualified victory, a win that improved the lives of countless African Americans and helped set the course of civil rights in the twentieth century. In 1917, the Supreme Court heard the case of Buchanan v. Warley, which centered on a Louisville, Kentucky, ordinance segregating residential housing blocks by race. Enacted “to prevent conflict and ill-feeling between the white and colored races,” the law made it illegal for blacks to live on majority-white blocks and for whites to live on majority-black blocks. To test the law, local NAACP member William Warley arranged to buy property on a white block from real estate agent Charles H. Buchanan, also an opponent of the law. When Warley “learned” that he could not live on the property he was purchasing, he refused to complete payment. Buchanan sued but the Kentucky courts ruled against him, upholding the ordinance. NAACP president Storey, joined by Louisville attorney Clayton B. Blakely, argued the case before the Supreme Court.

In their brief, Storey and Blakely denounced residential segregation as a racist interference with economic liberty. The Louisville law “prevents the plaintiff from selling his property for the only use to which it can be put,” they wrote. “It thus destroys, without due process of law, fundamental rights attached by law to ownership of property.” Furthermore, the law’s true purpose was not “to prevent conflict and ill-feeling,” as it claimed, but rather “to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter.” Were such a restriction upheld, they argued, “an attempt to segregate Irish from Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable.”

Among the legal authorities the brief cites is Lochner v. New York (1905), perhaps the Court’s most famous—some would say infamous—decision regarding economic liberty. In Lochner, the Court struck down a New York law setting maximum working hours for bakery employees as a violation of the Fourteenth Amendment right to liberty of contract. Writing for the 5–4 majority, Justice Rufus Peckham held that New York’s “real object and purpose were simply to regulate the hours of labor…in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee.” Therefore, the right to liberty of contract “cannot be prohibited or interfered with, without violating the Federal Constitution.”

In its Buchanan brief, the state of Kentucky took a dimmer view of economic liberty. Advocating the approach known as “judicial restraint,” the state argued that the Court should defer to local judgment. “Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object,” the brief argued, “is a legislative and not a judicial question.” Furthermore, “the injury [to property rights] is merely incidental to the city’s right to segregate, and does not warrant the overthrow of police regulations.” As for Storey and Blakely’s contention that the law forced blacks to inhabit the city’s worst neighborhoods, “the improvement of the negro’s condition is limited only by his own character and efforts.”

The Court disagreed. “Property is more than the mere thing which a person owns,” Justice William Day held for the unanimous body. “It is elementary that it includes the right to acquire, use, and dispose of it.” Accepting the Storey-Blakely argument that the ordinance was racist in intent, Justice Day held that the Fourteenth Amendment “operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”

Storey was justifiably thrilled at the victory. “I cannot help thinking it is the most important decision that has been made since the Dred Scott case,” he wrote to NAACP disbursing treasurer and fellow Gold Democrat Oswald Garrison Villard, “and happily this time it is the right way.” W.E.B. Du Bois, the editor of the NAACP newsletter, The Crisis, heartily agreed, crediting Buchanan with “the breaking of the backbone of segregation.”

In fact, as the legal scholar David E. Bernstein argued in the Vanderbilt Law Review, “though it was not used to its full potential, Buchanan almost certainly prevented governments from passing far harsher segregation laws [and] prevented residential segregation laws from being the leading edge of broader anti-negro measures.”

Buchanan also provides a telling contrast with the Court’s disastrous recent holding in Kelo v. City of New London (2005), which allowed the Pfizer Corporation to acquire private property seized via eminent domain under the city’s “economic revitalization” scheme. In his Kelo dissent, Justice Clarence Thomas observed that African Americans would be particularly vulnerable under Kelo, a predictable consequence given that “urban renewal projects have long been associated with the displacement of blacks.” Several leading civil rights groups supported the property owners in their fight, including the NAACP, which filed an amicus curiae brief. But it was the Court’s liberals—John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer, along with the mercurial Anthony Kennedy—that comprised the majority, a telling commentary on modern liberalism’s failure to learn Buchanan’s essential lesson: that civil rights are impossible without economic liberty.

Moorfield Storey understood that. On the major issues of both his day and ours, he consistently got it right: He led opposition to a costly and unnecessary war, he stood against collectivism and racism, and he championed individual rights in every sphere of human life. Facing death in October 1929 at the age of 84, his body debilitated by a series of strokes, Storey took great pride in the fact he had left his country a freer place. More Democrats—and for that matter, more Republicans—should follow his lead.

Damon W. Root is a writer living in Brooklyn.

'A Glorious Liberty Document'

info@reason.com (Damon W. Root) — Sun, 01 Oct 2006 08:34:00 EDT

Frederick Douglass and the Fourth of July, by James A. Colaiaco, New York: Palgrave Macmillan, 256 pages, $24.95

On January 27, 1843, in a resolution adopted by the American Anti-Slavery Society, the abolitionist William Lloyd Garrison famously denounced the U.S. Constitution for sanctioning the crime of slavery. "The compact which exists between the North and the South," Garrison wrote, "is a covenant with death and an agreement with hell."

Was he right? Did the Constitution protect the right to own human property? Frederick Douglass, the escaped former slave, self-taught author and editor, and leading abolitionist orator, thought not. "Take the Constitution according to its plain reading," he challenged the Rochester Ladies Anti-Slavery Society on July 5, 1852, in Rochester, New York. "I defy the presentation of a single pro-slavery clause in it." In fact, Douglass told the crowd gathered to hear his Independence Day address, "Interpreted as it ought to be interpreted, the Constitution is a glorious liberty document."

In Frederick Douglass and the Fourth of July, the New York University historian James A. Colaiaco offers a compelling, if repetitive, account of this remarkable oration and the extraordinary individual behind it. "An abolitionist manifesto," Colaiaco writes, "Douglass's oration would be the greatest abolition speech of the nineteenth century." Not only did it furiously denounce slavery ("a system as barbarous and dreadful as ever stained the character of a nation"), the speech, entitled "What to the Slave is the Fourth of July," firmly grounded the fight against slavery in the text of the Constitution, boldly challenging the standard interpretation of the document, particularly its notorious "three-fifths" clause, and demanding that white America fully honor the Constitution's guarantee of natural rights.

Born sometime in 1818 to a slave mother and a white, most likely slaveholding, father, Frederick Douglass was 34 years old, and 14 years out of bondage, when he stood before 500 to 600 mostly white people in Rochester's grand Corinthian Hall. Invited to commemorate the anniversary of American independence, Douglass, the nation's foremost black leader, came out swinging. "Instead of congratulating them for having invited a black man to sing praises for the republic," Colaiaco writes, "he had them, along with millions of white Americans, bowing their heads in shame for tolerating slavery." Bitterly contrasting "your political freedom" and "your Fourth of July" with the misery of the American slave, Douglass informed his audience "this Fourth of July is yours, not mine. You may rejoice, I must mourn."

Describing the horrors he both witnessed and endured during his 20 years in bondage, Douglass painted a bleak, infuriating portrait of the slave system. "There is not a nation on the earth," he charged, "guilty of practices, more shocking and bloody, than are the people of the United States, at this very hour." Still, he refused to forsake America's founding principles, no matter how far the country had strayed in practice. He drew explicit parallels between the courageous signers of the Declaration of Independence, men who "preferred revolution to peaceful submission to bondage," and the brave abolitionists struggling to end slavery in the present.

In fact, Douglass argued, the U.S. Constitution was both the founding generation's greatest achievement and the abolitionists' greatest weapon. Contrary to the view held by both the Garrisonians and the slaveholders, both of whom saw the Constitution as pro-slavery, Douglass argued that the document forbade slavery and enshrined the colorblind principles set forth in the Declaration of Independence, including the "self-evident" truths that "all men are created equal" and born in possession of "unalienable Rights." Look to the language of the Constitution, he said, and "it will be found to contain principles and purposes, entirely hostile to the existence of slavery."

This was no small claim, Colaiaco notes, particularly coming from Frederick Douglass, who until just a few years earlier had been an ardent Garrisonian and an outspoken opponent of the Constitution, which he too had denounced as a "covenant with death." In fact, Douglass had explicitly endorsed Garrison's view that the free North should secede from the slave South, a position exemplified by the slogan "No Union With Slaveholders!," which adorned Garrison's newspaper The Liberator.

What changed? Colaiaco points to the passages in My Bondage and My Freedom (1855), the second of Douglass" three autobiographies, where he describes his growing dissatisfaction with the Garrisonians. "Give us the facts," Douglass records his mentors insisting before public appearances. "We will take care of the philosophy." Yet "I could not always obey," Douglass admitted, "for I was now reading and thinking. It did not entirely satisfy me to narrate wrongs; I felt like denouncing them."

In 1847 Douglass moved to Rochester, a stronghold of the political abolitionists' the non-Garrisonian faction, which viewed the Constitution as anti-slavery"where he opened his first newspaper, The North Star. It quickly became the leading black paper of the day. Garrison had opposed the venture, arguing that another abolitionist paper was not necessary and that the editorial duties would keep Douglass off the lecture circuit. "For a short time," Colaiaco writes, "Douglass accepted the judgment of the Garrisonians, but he eventually forged ahead [believing] that black Americans must assume the responsibility of combating slavery with their own organizations and press."

At the same time, Douglass was studying legal theory and history, leading to what Colaiaco calls his "conversion to the Constitution." An 1851 North Star editorial announced the change, with Douglass declaring his new opinion that the Constitution opposed slavery. This view "has not been hastily arrived at," he insisted, but came only after "a careful study of the writings of Lysander Spooner, of Gerrit Smith, and of William Goodell," three leading proponents of an anti-slavery reading of the document.

Though Colaiaco places the most emphasis on Smith, a founding member of the abolitionist Liberty Party and a wealthy New York landowner whose patronage was crucial for many anti-slavery ventures, including The North Star, Spooner (1808-1887) also deserves special attention. A lawyer, a radical abolitionist, and the author of the anarchist classic No Treason: The Constitution of No Authority (1870), Lysander Spooner is one of America's great libertarian heroes. His magnificent treatise against the slave system, The Unconstitutionality of Slavery (1845), would spark a firestorm of debate and have a huge influence on Douglass' evolving legal ideas.

To Spooner, the protection of natural rights—the doctrine that individual liberty is inherent to man's nature—was essential for constitutional legitimacy. "In order that the contract of government be valid and lawful," Spooner wrote, it "cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government—which is but an association of individuals—than to a single individual." Thus, any constitution sanctioning slavery, arguably the worst violation of rights short of murder, was invalid and should not be obeyed.

Purely for the sake of argument, Spooner then set aside this requirement and stipulated that laws that violate rights could command obedience. But to do so they must give "clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing," in this case, human slavery. Spooner did not believe that laws sanctioning slavery should be obeyed; he merely maintained that those who did accept the legitimacy of such laws had a legal and moral duty to make them as unambiguous as possible.

The Constitution, he argued, failed this test. In fact, "not even the name of the thing, alleged to be sanctioned, is given." Douglass echoed this point in his Independence Day address, asking, "if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it?"

Take the infamous "three-fifths" clause—Article I, Section 2—which states that for the purposes of taxation and political representation, state populations shall be counted "by adding to the whole Number of free persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other persons." What to make of these "other persons?"

In Federalist No. 54, James Madison argued that the clause's language skillfully reflected slavery's "mixt character of person and property." It showed "great propriety," Madison wrote, by regarding slaves "as inhabitants [of a state], but as debased by servitude below the level of free inhabitants."

Certainly "other persons" has long been understood as a code language for slavery. And with good reason: As Madison's published Notes on the proceedings of the 1787 Constitutional Convention make clear, the subject of slavery dominated many of the debates. "The great division of interests," Madison wrote, "did not lie between the large & small States; It lay between the Northern & Southern." Terms such as "other persons" were crafted precisely to alleviate this division.

For Spooner, that was not enough to sanction the practice legally. The phrase "other persons," he argued, is open to both an innocent interpretation ("partial citizens," i.e., resident aliens) and a malevolent one (slaves). The fundamental responsibility of the American state, he continued, is the protection of natural rights. Thus, when faced with the choice between a constitutional interpretation that secures rights and one that subverts them, the former must always prevail over the latter. Anything less would nullify the legitimacy of the government.

"This is the true test for determining whether the constitution does, or does not, sanction slavery," Spooner wrote. "Whether a court of law, strangers to the prior existence of slavery or not assuming its prior existence to be legal—looking only at the naked language of the instrument—could, consistently with legal rules, judicially determine that it sanctioned slavery. Every lawyer, who deserves that name, knows that the claim for slavery could stand no such test." Luther Martin, a delegate to the Constitutional Convention and later opponent of ratification, partially anticipated this argument, declaring that when it came to slavery, his fellow delegates "anxiously sought to avoid the admission of expressions which might be odious to the ears of Americans."

The Spooner/Douglass interpretation of the Constitution would never persuade the majority of white abolitionists. It did, however, persuade many, perhaps most, black Americans, who generally favored political activism over the Garrisonian refusal to participate in a political system contaminated by slavery. It also attracted Abraham Lincoln. While he was certainly no abolitionist, Lincoln was a critic of Southern slavery and an opponent of its westward expansion. In an 1854 speech in Peoria, Illinois, Lincoln made a colorful reference to the Spooner/Douglass view, declaring that slavery "is hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out, lest he bleed to death."

For Garrison and his many supporters, the idea of an anti-slavery Constitution ran against the clear intent of the document's framers and reeked of political opportunism. At the 18th annual meeting of the American Anti-Slavery Society, held in Syracuse, New York, in May 1851, Garrison personally moved to have Douglass' North Star deleted from the list of officially endorsed newspapers in retaliation for the betrayal. "There is roguery somewhere," Garrison declared, a cheap shot that left his former supporter and still respectful admirer deeply wounded.

The Columbia University historian Eric Foner has revived this charge of opportunism for the present day, writing in his book Who Owns History? (2002) that Douglass' "tortuous logic suggests that his motivation lay in political expediency rather than deep conviction." But Foner, like Garrison before him, forgets Douglass' lifelong commitment to the philosophy of natural rights, the very same philosophy coursing through the Declaration of Independence and the Constitution.

For instance, in his celebrated 1848 "Letter to Thomas Auld," his former master, Douglass characterizes his escape from slavery as an inherently lawful act. "You are a man and so am I," he wrote. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner." A more compelling invocation of "unalienable Rights" could hardly be imagined.

Douglass' Fourth of July address similarly resounds with the principles of classical liberalism. Evoking John Locke's famous description of private property emerging from man mixing his labor with the natural world, Douglass pointed to slaves "plowing, planting and reaping, using all kinds of mechanical tools, erecting houses" as proof of their humanity. "Would you have me argue that man is entitled to liberty" That he is the rightful owner of his own body"" Douglass asked. "There is not a man beneath the canopy of heaven, that does not know that slavery is wrong for him." Indeed, as he repeatedly and convincingly argued, and as Frederick Douglass and the Fourth of July helps to vividly illustrate, it was the slaveholders, in their desperate attempt to reconcile human bondage with the Constitution's guarantee of natural rights, that employed "tortuous logic" for "political expediency."

In the end, of course, it would take a brutal war and a new constitutional amendment to abolish slavery, an ordeal that Douglass accepted as necessary, declaring in 1861 that the Civil War was "the logical and inevitable result of a long and persistent course of national transgression." From the outset of hostilities, moreover, Douglass loudly and persistently demanded that the war be transformed into a fight both to preserve the Union and to abolish slavery—the position ultimately, if reluctantly, adopted by the Lincoln administration.

Was Douglass right? Did the original Constitution forbid human bondage? Whatever you think of the logic of the Spooner/Douglass view, it did largely prevail in the arena of politics. And Douglass, whom Colaiaco rightly celebrates for delivering "the greatest abolition speech of the nineteenth century," did more to popularize the idea of an anti-slavery Constitution than anyone else. With his furious and uncompromising devotion to natural rights, Frederick Douglass was more than just a persuasive abolitionist. He was—and remains—one of history's greatest champions of human freedom.

When Bigots Become Reformers

info@reason.com (Damon W. Root) — Fri, 05 May 2006 00:00:00 EDT

The Progressive Era and Race: Reform and Reaction, 1900–1917, by David W. Southern, Wheeling, W.V.: Harlan Davidson, 240 pages, $15.95

The Progressive movement swept America from roughly the early 1890s through the early 1920s, producing a broad popular consensus that government should be the primary agent of social change. To that end, legions of idealistic young crusaders, operating at the local, state, and federal levels, seized and wielded sweeping new powers and enacted a mountain of new legislation, including minimum wage and maximum hour laws, antitrust statutes, restrictions on the sale and consumption of alcohol, appropriations for hundreds of miles of roads and highways, assistance to new immigrants and the poor, women's suffrage, and electoral reform, among much else.

Today many on the liberal left would like to revive that movement and its aura of social justice. Journalist Bill Moyers, speaking at a conference sponsored by the left-wing Campaign for America's Future, described Progressivism as "one of the country's great traditions." Progressives, he told the crowd, "exalted and extended the original American Revolution. They spelled out new terms of partnership between the people and their rulers. And they kindled a flame that lit some of the most prosperous decades in modern history."

Yet the Progressive Era was also a time of vicious, state-sponsored racism. In fact, from the standpoint of African-American history, the Progressive Era qualifies as arguably the single worst period since Emancipation. The wholesale disfranchisement of Southern black voters occurred during these years, as did the rise and triumph of Jim Crow. Furthermore, as the Westminster College historian David W. Southern notes in his recent book, The Progressive Era and Race: Reform and Reaction, 1900–1917, the very worst of it—disfranchisement, segregation, race baiting, lynching—"went hand-in-hand with the most advanced forms of southern progressivism." Racism was the norm, not the exception, among the very crusaders romanticized by today's activist left.

At the heart of Southern's flawed but useful study is a deceptively simple question: How did reformers infused with lofty ideals embrace such abominable bigotry? His answer begins with the race-based pseudoscience that dominated educated opinion at the turn of the 20th century. "At college," Southern notes, "budding progressives not only read exposés of capitalistic barons and attacks on laissez-faire economics by muckraking journalists, they also read racist tracts that drew on the latest anthropology, biology, psychology, sociology, eugenics, and medical science."

Popular titles included Charles Carroll's The Negro a Beast (1900) and R.W. Shufeldt's The Negro, a Menace to American Civilization (1907). One bestseller, Madison Grant's The Passing of the Great Race (1916), discussed the concept of "race suicide," the theory that inferior races were out-breeding their betters. President Theodore Roosevelt was one of many Progressives captivated by this notion: He opposed voting rights for African-American men, which were guaranteed by the 15th amendment, on the grounds that the black race was still in its adolescence.

Such thinking, which emphasized "expert" opinion and advocated sweeping governmental power, fit perfectly within the Progressive worldview, which favored a large, active government that engaged in technocratic, paternalistic planning. As for reconciling white supremacy with egalitarian democracy, keep in mind that when a racist Progressive championed "the working man," "the common man," or "the people," he typically prefixed the silent adjective white.

For a good illustration, consider Carter Glass of Virginia. Glass was a Progressive state and U.S. senator and, as chairman of the House Committee on Banking and Currency, one of the major architects of the Federal Reserve Act of 1913. He was also an enthusiastic supporter of his state's massive effort to disfranchise black voters. "Discrimination! Why that is exactly what we propose," he declared to one journalist. "To remove every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate."

Then there was political scientist John R. Commons, an adviser to the Progressive Wisconsin governor and senator Robert M. LaFollette and a member of Theodore Roosevelt's Immigration Commission. Commons, the author of Races and Immigrants in America (1907), criticized immigration on both protectionist grounds (he believed immigrants depressed wages and weakened labor unions) and racist ones (he wrote that the so-called tropical races were "indolent and fickle").

Woodrow Wilson, whose Progressive presidential legacy includes the Federal Reserve System, a federal loan program for farmers, and an eight-hour workday for railroad employees, segregated the federal bureaucracy in Washington, D.C. "I have recently spent several days in Washington," the black leader Booker T. Washington wrote during Wilson's first term, "and I have never seen the colored people so discouraged and bitter as they are at the present time."

Perhaps the most notorious figure of the era was Benjamin "Pitchfork" Tillman, a leading Southern Progressive and inveterate white supremacist. As senator from South Carolina from 1895 to 1918, Tillman stumped for "Free Silver," the economic panacea of the agrarian populist (and future secretary of state) William Jennings Bryan, whom Tillman repeatedly supported for president. "Pitchfork" Tillman favored such Progressive staples as antitrust laws, railroad regulations, and public education, but felt the latter was fit only for whites. "When you educate a negro," he brayed, "you educate a candidate for the penitentiary or spoil a good field hand."

Nor did African Americans always fare better among those radicals situated entirely to the left of the Progressives. Socialist Party leader Eugene V. Debs, though personally sympathetic to blacks, declared during his 1912 campaign for the presidency, "We have nothing special to offer the Negro." Other leading radicals offered even less. Writing in the Socialist Democratic Herald, Victor Berger, the leader of the party's right wing, declared that "there can be no doubt that the negroes and mulattoes constitute a lower race—that the Caucasian and even the Mongolian have the start on them in civilization by many years." The celebrated left-wing novelist Jack London, covering the 1908 heavyweight title bout between black challenger Jack Johnson and white boxing champ Tommy Burns, filled his New York Herald story with lurid ethnic caricatures and incessant race baiting. "Though he was a committed socialist," observed Jack Johnson biographer Geoffrey C. Ward, London's "solidarity with the working class did not extend to black people."

As Southern thoroughly documents, these examples just begin to scratch the surface. Progressivism was infested with the most repugnant strains of racism. But was there something more, something inherent in Progressivism itself that facilitated the era's harsh treatment of blacks? According to Southern, who repeatedly maintains that racism derailed "the great promise" of Progressivism, the answer is no. "The ideas of race and color were powerful, controlling elements in progressive social and political thinking," he argues. "And this fixation on race explains how democratic reform and racism went hand-in-hand."

That is surely correct, but is it the whole story? As the legal scholar Richard Epstein has noted, "the sad but simple truth is that the Jim Crow resegregation of America depended on a conception of constitutional law that gave property rights short shrift, and showed broad deference to state action under the police power." Progressivism itself, in other words, granted the state vast new authority to manage all walks of American life while at the same time weakening traditional checks on government power, including property rights and liberty of contract. Such a mixture was ripe for the racist abuse that occurred.

Take the Supreme Court's notorious decision in Plessy v. Ferguson (1896), a case that has rightly come to symbolize the South's Jim Crow regime. In Plessy, the Court considered a Louisiana statute forbidding railroads from selling first-class tickets to blacks, a clear violation of economic liberty. In its 7–1 ruling, the Court upheld segregation in public accommodations so long as "separate but equal" facilities were provided for each race, setting off an orgy of legislation throughout the old Confederacy. South Carolina, for example, segregated trains two years after Plessy. Streetcars followed in 1905, train depots and restaurants in 1906, textile plants in 1915–16, circuses in 1917, pool halls in 1924, and beaches in 1934.

No doubt many of those businesses would have excluded or mistreated black customers whatever the law. But in a market free from Jim Crow regulations, other businesses would have welcomed blacks, or at least black dollars, forcing racist enterprises to bear the full cost of excluding or mistreating all those potential paying customers. (This was one of the chief reasons the segregationists pushed for those laws in the first place.) The state, in the eloquent words of the historian C. Vann Woodward, granted "free rein and the majesty of the law to mass aggressions that might otherwise have been curbed, blunted, or deflected."

Furthermore, this tangled web of regulations, ordinances, codes, and controls was spun during the heyday of Progressivism, precisely when such official actions were least likely to receive any meaningful scrutiny. Southern, despite his otherwise close attention to the many permutations of race and racism, fails to recognize this major defect in the Progressive worldview.

A similar failure handicaps his treatment of one of the era's rare victories for African Americans. In Buchanan v. Warley (1917), the Supreme Court unanimously overturned a Louisville ordinance segregating residential housing blocks by race. The case involved a voluntary contract between a white seller and a black buyer for a housing lot located in a majority-white neighborhood. Under the law, the new black owner could not live on the property he had just purchased.

Writing for the Court, Justice William Rufus Day held that "this attempt to prevent the alienation of the property in question to a person of color…is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law."

Yet Southern dismisses this rare and important victory as "hollow" and incorrectly asserts that it "was decided not on the grounds of human rights, but on those of white property rights." In fact, the judicial recognition of black rights stood at the very center of the decision. Justice Day's opinion clearly states that the Fourteenth Amendment "operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color."

Nor should Southern's characterization of this victory as "hollow" pass unchallenged. As the legal scholars David Bernstein and Ilya Somin have argued, the Buchanan ruling played a major though sadly underappreciated role in the burgeoning fight for civil rights. "Buchanan could not force whites to live in the same neighborhood as blacks," Bernstein and Somin write, "but it did prevent cities from stifling black migration by creating de jure and inflexible boundaries for black neighborhoods, and may have prevented even more damaging legislation." It is well worth noting, they continue, that the South did not adopt South African–style apartheid at this time, despite widespread white support for such measures.

In addition, Buchanan was the first major Supreme Court victory for the four-year-old National Association for the Advancement of Colored People, a huge boon for the organization that would go on to win the landmark Brown v. Board of Education (1954), overturning Plessy. W.E.B Du Bois, an NAACP founder and longtime editor of its newsletter, The Crisis, gave Buchanan credit for "the breaking of the backbone of segregation."

Despite these significant shortcomings, The Progressive Era and Race deserves careful attention. The Progressive movement unleashed, aided, and abetted some of the most destructive forces in 20th-century America. The better we understand this history, the less likely we are to repeat it.

Unleash the Judges

info@reason.com (Damon W. Root) — Fri, 01 Jul 2005 00:00:00 EDT

Speaking to the Heritage Foundation in 1996 on the topic of "judicial activism," the conservative commentator Pat Buchanan denounced the Supreme Court as a "judicial dictatorship"; the Court's beneficiaries, he said, were "criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers." In his influential 1996 book Slouching Towards Gomorrah: Modern Liberalism and American Decline, former federal appeals court judge Robert H. Bork declared that "the Supreme Court has usurped the powers of the people and their elected representatives." Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state's anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."

Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.

Lincoln's Property-Rights Activist

For the better part of six decades, in fact, judicial activism was associated almost exclusively with the protection of economic rights, while its counterpart, judicial restraint, was the rallying cry of liberal reformers. Between Reconstruction and the New Deal, as the states began legislating a variety of new "progressive" regulations, it was judges acting in the name of private property and "liberty of contract" that "usurped" the power of the people, "invented" new rights, and gave birth to judicial activism as we know it today.

This history suggests that a principled form of libertarian judicial activism--that is, one that consistently upholds individual rights while strictly limiting state power--is essential to the fight for a free society. In fact, a genuinely libertarian jurisprudence would, in the words of the legal scholar Randy Barnett, "requir[e] the state to justify its statute, whatever the status of the right at issue." The real legal challenge facing libertarians isn't judicial activism; it is defending individual rights from the liberals and conservatives who seek to take our liberties away.

For a historical model, look to Supreme Court Justice Stephen J. Field. Appointed by Abraham Lincoln in 1863, Field sat on the Court for more than three decades, retiring in 1897 at age 81. In the words of biographer Paul Kens, Field was "the prototype for the modern judicial activist." He was among the first judges to create a body of legal authority by penning extensive dissenting and concurring opinions; he eagerly wielded the power of judicial review; he recognized few "political thickets" into which the courts should not tread. Nor did Field bind himself exclusively to legal precedent or to the text of the Constitution. Anticipating those 20th-century judges whose decisions draw on the political and social sciences, Field's opinions resound with such extra-constitutional sources as Adam Smith's Wealth of Nations and the precepts of natural law--the doctrine that man's rights derive from nature, not from human institutions.

Most important, Field advocated a groundbreaking jurisprudence of unenumerated natural rights. Through a number of creative and forceful opinions, particularly his dissents in the Slaughterhouse Cases (1873) and Munn v. Illinois (1877), and his concurrence in Butchers' Union Co. v. Crescent City Co. (1884), Field worked to enhance judicial power, nullify popular legislation, and expand individual liberty under the 14th Amendment.

Ratified in 1868, the 14th Amendment is the most controversial of the three amendments added to the federal Constitution after the Civil War. The 13th abolished slavery, and the 15th secured the vote for African-American men--not exactly open issues today. But the 14th still inspires debate. The relevant portion reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The first test of this broad new language came in 1873 with a group of lawsuits known collectively as the Slaughterhouse Cases. At issue was a Louisiana law granting a 25-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company to build and operate a new central slaughterhouse to "promote the health of the City of New Orleans." Critics, particularly established local butchers, charged (correctly) that the whole deal stank of an exclusive privilege granted to well-connected insiders and, in a surprising move, claimed the law violated their rights under the 14th Amendment.

Attorney John A. Campbell, representing the Butchers' Benevolent Association, argued that the amendment's Privileges or Immunities Clause secured the right of butchers to pursue their calling without unreasonable interference from the state. Writing for the 7�2 majority, Justice Samuel F. Miller disagreed, holding that "the one pervading purpose" of the clause was to protect the rights of former slaves, not to expand the rights of white butchers.

Expanding the 14th

In dissent, Justice Field took a far wider view. The phrase "privileges or immunities," he argued, describes those "natural and inalienable rights" that "belong to the citizens of all free governments." Furthermore, "Clearly among these must be placed the right to pursue lawful employment in a lawful manner, without other restraints than such as equally affects all persons." Miller, foreshadowing one of the chief charges leveled against judicial activism, wrote that Field's sweeping assertion of the right to pursue a calling, if accepted, would transform the Court into a "perpetual censor upon all legislation of the states." (Theodore Roosevelt echoed this view some three decades later when he denounced the Court as a "super-legislature." Newt Gingrich recently did the same when he decried the Court as "a permanent constitutional convention.")

Field, however, was undeterred. In 1877 the Court heard arguments in Munn v. Illinois, one of the so-called Granger cases, which dealt with various state laws regulating railroad shipping rates. In Munn, the law in question set the storage rates for 14 massive grain elevators situated at the port of Chicago.

Writing for the 7�2 majority, Chief Justice Morrison Waite upheld the fixed rates, writing that when private property is "affected with a public interest" it becomes open to greater regulation. The grain elevators, he maintained, "stand...in the very 'gateway of commerce' and take toll from all who pass"; they "exercise a sort of public office," a de facto monopoly. Furthermore, "for protection against abuses by the legislature, people must resort to the polls, not the courts."

Dissenting, Field ridiculed the decision, arguing that under the Court's elastic definition, any useful business or enterprise could be defined as serving a public interest. "If this be sound law," he argued, "all property and all business in the State are held at the mercy of a majority of its legislature."

Then, turning to the language of the 14th Amendment, Field spelled out a sweeping new interpretation of due process, one whose reverberations are still felt in the legal battles over privacy and abortion. The due process protection of life, Field began, means more than "mere animal existence." It extends to one's body and one's faculties, and it prohibits mutilation just as certainly as it prohibits murder. Liberty, by the same standard, requires more "than mere freedom from physical restraint or the bounds of a prison." Each individual must be free to travel, to pursue happiness as he sees fit. This freedom obviously includes the right to pursue "such callings and avocations as may be most suitable to develop his capacities."

Finally, "the same liberal construction" must be applied to the protection of property. This right must refer to more than just "title and possession" if it is to have any real meaning. It necessarily includes the right to use and dispose of one's property, to set rates of compensation, and to profit.

Substantiating Due Process

Today, Field's approach is known as "substantive due process," referring to the idea that the Due Process Clause guarantees more than just "procedural" rights and in fact secures all "substantive" or fundamental rights from violation as well. In other words, there is simply no official procedure, including the deliberative judgment of a legislative majority, that can legitimate the violation of inalienable rights.

Field's dread phrase "liberal construction" will no doubt send a few conservatives into apoplexy, since it so clearly foreshadows two of the Court's most controversial modern rulings. First, in Griswold v. Connecticut (1965), the Court held Connecticut's ban on the use of contraceptives to be a violation of the "zones of privacy" carved out by the specific guarantees of the Bill of Rights. Then, in Roe v. Wade (1973), the Court expanded the individual right to privacy to include the right to an abortion.

These decisions clearly fall within Field's interpretation. Individual rights, by nature and by necessity, he argued, require a broad or "liberal" scope if they are to have any real meaning. State power, by contrast, must be narrowly construed and strictly limited. Modern conservatives, by exalting the will of the majority over the liberties of unpopular minorities, have abandoned Field's natural rights�based approach for a constitutional vision that errs in favor of contested legislation. As we'll see, this doctrine of judicial restraint proved disastrous for individual rights in the 20th century.

In 1884 the butchers of New Orleans again provided Field with the opportunity to expound his sweeping vision of life, liberty, and property. Louisiana's new state constitution, passed in 1879, transferred the regulation of slaughterhouses from the statehouse to city hall. New Orleans responded by opening the business to limited competition, thus voiding the Crescent City Company's exclusive 25-year monopoly.

The issue before the Court in Butchers' Union Co. v. Crescent City Co., therefore, was whether the state could impair its contractual obligations and rescind the privilege it had bestowed. The Court unanimously held that it could, since no legislature had the authority to limit the future exercise of its own police powers. Although he concurred with the ruling, Field devoted the bulk of his opinion to restating his objection to the original monopoly and expanding his conception of liberty.

"Certain inherent rights lie at the foundation of all action," Field wrote. Among these "is the right of men to pursue happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the rights of others." This boldly libertarian position, which if followed would sweep away much state and federal legislation, aptly demonstrates how judicial activism in defense of individual rights would limit the size and scope of government.

Although Field would die before his ideas fully entered the law, the tide had turned. In 1897, in the case of Allgeyer v. Louisiana, which overturned Louisiana's ban on mail-order insurance contracts sold by out-of-state companies, a unanimous Court explicitly recognized the right to pursue a calling, enshrining the broad 14th Amendment right to "liberty of contract." During the next three decades, the Court would selectively employ liberty of contract in several controversial cases to nullify popular state laws.

By far the most famous of these was Lochner v. New York (1905). In a decision still denounced for its judicial activism, the Court struck down New York's law setting maximum working hours for bakery employees on the grounds that it violated the liberty of contract protected by the 14th Amendment's Due Process Clause.

"The act is not," Justice Rufus Peckham held for the majority, "within any fair meaning of the term, a health law." The legislature was plainly inspired by "other motives" than health or safety. Were the Court to uphold such an arbitrary state action, he continued, "there would seem to be no length to which legislation of this nature might not go."

Notably, Lochner was decided just nine years after Plessy v. Ferguson (1896), in which the Court upheld a Louisiana statute banning the sale of first-class railroad tickets to African Americans, permitting state-mandated segregation in public accommodations as long as the facilities for each race were "separate but equal." Although Field joined with the majority in this vile opinion (and remained uncharacteristically silent while doing so), Plessy clearly violates liberty of contract. As legal scholar Richard Epstein has written, "the statute sustained in Plessy was flatly inconsistent with laissez-faire principles....Plessy represented
the expansionist view of the police power that Lochner repudiated."

Individual Liberty vs. Good Government

It was precisely this repudiation of state power that motivated the attacks of Lochner's many opponents. In his famous Lochner dissent, Justice Oliver Wendell Holmes lambasted his colleagues for enshrining "an economic theory which a large part of the country does not entertain." For Holmes, the deciding factor was the will of the majority, not individual rights. "I think that the word 'liberty' in the 14th Amendment," he explained, "is perverted when it is held to prevent the natural outcome of a dominant opinion, unless...the statute proposed would violate fundamental principles as they have been understood by the traditions of our people and our law."

This view, which became a central tenet of Progressive and New Deal�era liberalism, is precisely the approach now championed by Robert Bork, perhaps the leading conservative critic of the judiciary. The common denominator is that both liberals and conservatives will gladly sacrifice individual liberty to further their particular notions of "good government."

If Stephen Field is the first great champion of judicial activism, then Oliver Wendell Holmes is his nemesis, the first great advocate of judicial restraint. Appointed by Theodore Roosevelt in 1902, Holmes also sat for three decades, retiring in 1932 after exerting a vast and lasting influence, particularly on several key figures in Franklin Roosevelt's New Deal.

"I always say, as you know," Holmes once remarked, "that if my fellow citizens want to go to Hell I will help them. It's my job." That statement, perhaps more than Holmes or his supporters realize, perfectly captures the significant dangers inherent in judicial restraint. Consider, for instance, Holmes' dissent in Meyer v. Nebraska (1923), where the majority held that a state law banning foreign language instruction for young children, passed in the heat of the anti-German hysteria stirred up by World War I, violated the 14thAmendment's substantive guarantee of liberty. "I think I appreciate the objection to the law," Holmes explained, but "I am unable to say the Constitution of the U.S. prevents the experiment being tried."

Then there is Holmes' opinion for the majority in Schenk v. United States (1919), which upheld Woodrow Wilson's monstrous Espionage Act, permitting Congress to restrict and punish speech that obstructed the draft. This ruling sent Socialist leader Eugene V. Debs, among others, to federal prison, where he rotted for three years on the charge of exercising his First Amendment right to criticize the government. In both cases, Holmes' deference to the popular will placed him squarely against the fundamental rights of unpopular minorities.

Selective Rights

The obvious parallel here is to the Court's judicial restraint in Korematsu v. United States (1944), which upheld the Roosevelt administration's wartime internment of Japanese Americans. For those conservatives terrified at the thought of "judicial dictatorship," it's worth remembering that it was judicial restraint, not activism, that allowed these egregious violations of both fundamental rights and basic justice to occur.

Like Stephen Field before him, Oliver Wendell Holmes would not live to see his ideas become law. In 1937, five years after Holmes' death, the Supreme Court overturned Lochner v. New York, relying on the principle of judicial restraint to uphold a Washington state minimum wage law for women. Writing for the majority in West Coast Hotel Co. v. Parish, Chief Justice Charles Evans Hughes rejected substantive due process and the notion of unenumerated rights. "The Constitution does not speak of freedom of contract," he declared. So long as an economic regulation is "reasonable in relation to its subject and is adopted in the interests of the community," the requirements of due process are met. To put it plainly, "the legislature is entitled to its judgment."

Conservative critics of judicial activism ought to celebrate this decision and the countless economic "reforms" that followed. Instead, many such critics, including Justice Scalia, still favor an active judicial role in defending property rights. Similarly, modern-day liberals remain firmly committed to the demise of liberty of contract while at the same time championing Lochnerian substantive due process for privacy and abortion rights.

Predictably, neither right nor left is eager to subject its selectively cherished rights to the will of the majority. And why would they? Majority rule, as James Madison pointed out in Federalist No. 10, is not always such a pretty thing. Fortunately, we possess inalienable rights that no majority may touch. Furthermore, as the Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Stephen Field got that right in Munn v. Illinois: Individuals possess far more liberties than any constitution could possibly list.

A principled form of libertarian judicial activism, therefore, is clearly consistent with the basic requirement of a free society: the protection of individual rights against the tyranny of the majority.

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