I Have a Dream–or Rather Had a Dream . . . about Griswold v. Connecticut

Dreams are surreal, of course, and often you wonder where in the world some dream could have come from. In this instance, though, I think I know: I suspect that my dream was prompted by a post on this very blog. In any case, it was a dream about Griswold v. Connecticut– the old, seminal (albeit anti-seminal) contraception decision.

In my dream, the case and the result were the same, but the reasoning was completely different. I forget who wrote the majority opinion. Harlan, maybe. Or White. Definitely not Douglas. There was nothing in the opinion about “emanations” and “penumbras.” No effusive (and, given Douglas’s authorship, ironic) paeans to the nobility and sanctity of marriage. It was a due process decision–but real due process. Procedural due process, not substantive.

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Israel’s Iron Dome, and Us

shutterstock_115739893Images of Hamas’s artillery rockets being intercepted by Israel’s “Iron Dome” missile defense system naturally lead Americans to wonder why, if missiles were fired at our homes, we wouldn’t go to the trouble of stopping them in mid-flight as the Israelis do. The answer is that our bipartisan ruling class decided half a century ago that even trying to protect America against all but token missile attacks would be a hostile act toward Russia and China.

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Mutable ACLU v. Immovable Cato

The ACLU has modified over the last decade two important positions on civil liberties. Historically its position had been that limiting contributions to political campaigns was unconstitutional. In 2010 it shifted to support “reasonable” limits on contributions to political campaigns.  Strikingly, the ACLU in 2013 then failed to file any brief at all in McCutcheon v. FEC, which challenged aggregate limits on contributions. These limits prevented citizens from expressing support for individual candidates, even when those individual contributions were of modest size.

Second, in 1993 ACLU President  Nadine Strossen enthusiastically supported the Religious Freedom Restoration Act.  Later the ACLU, as David Bernstein reported, continued to support legal exemptions for reasons of religious conscience, but opposed subsequent bills providing for across-the-board exemptions  because of fear that they would interfere with anti-discrimination laws.  The ACLU today supports the bill to override the Hobby Lobby even though the  decision did not involve an anti-discrimination law.

In contrast, CATO, the premier libertarian think-tank, has been relentlessly consistent in its views on domestic policy, opposing infringements on both civil rights and property rights alike. The consistency has continued despite some unfortunate recent squabbles about the structure of its leadership.

The difference between the mutability of ACLU and the constancy of Cato underscores important truths about both the nature of liberty and politics.

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James MacGregor Burns’ Transformative Constitutionalism

Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.

Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.

The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.

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Free-Floating Liberty?

In a previous post, I asked what may strike some readers as an obtuse question. If our society is no longer grounded in Christianity, as it once was, or in the biblical tradition, and if the normative passion of our time– namely, equality– is a not an affirmative ideal or vision so much as a negative and parasitic one, then what sort of society do we live in now? How should we describe the affirmative convictions or commitments (if any) that give meaning and shape to our society?

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Is Griswold v. Connecticut Consistent with the Original Meaning?

Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it). In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum. But is Griswold in…

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When Friedrich Hayek Met Bruno Leoni

This year would have been Bruno Leoni’s 101st birthday but for his tragically early death in 1967. Leoni was an Italian lawyer cum academic who was one of Europe’s leading classical liberal thinkers in the post-War era. Friend to the leading classical liberals of the age—counting Hayek, Buchanan, and Alchian as friends—Leoni was not only a pioneer of law and economics thinking but also an early adopter of public choice theory.

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Progressive Jurisprudence’s Assault on Mediating Institutions

A disturbing aspect of the jurisprudence of justices on the left of the Supreme Court is their unwillingness to grant constitutional protections to mediating institutions. This hostility to mediating institutions—structures that help individuals join together to exercise power independent of the state—was demonstrated both in Citizens United and Hobby Lobby. In Citizens United, four justices would have prevented corporations from exercising the same First Amendment rights as individuals to express opinions before an election. In Hobby Lobby Justices Ginsburg and Sotomayor would have held that even closely held corporations could not obtain the protections of the Religious Freedom Restoration Act.

The measure of these justices’ hostility lies in their Houdini-like efforts to escape the established doctrine that supported the rights of corporations in these cases. The majority decision in Citizens United rested on the long First Amendment tradition of protecting the freedom of speech rights of corporations. For instance, New York Times v. Sullivan, offering a First Amendment shield against libel actions against public figures, involved a corporation.  Moreover, the history of commercial speech rights is almost entirely that of corporate rights. The majority in Hobby Lobby relied on the Dictionary Act, which expressly directs courts to include corporations within the definition of a person unless the context suggests otherwise.

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Schlomo Avineri on Oslo

Based on a pointer on Facebook, I saw this piece about how left wing Shlomo Avineri had admitted that he and his compatriots were mistaken about Oslo and the Palestinian desire for peace. He writes: The initiators of Oslo and the process' supporters saw the Israeli-Palestinian conflict as a conflict between two national movements, and believed - as I believed - that in direct negotiations between Israel and the PLO, a solution could be found to the territorial and strategic issues that are the source of the dispute between the two movements. But the basis of this concept had a mistake. All…

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