How Important Is The Citizens United Case

I’ve been thinking about the S Ct decision in the Citizens United case. I am a big fan of the 1st Amendment and also bit of a Hugo Blackian (i.e. when the drafters said "Congress shall make no law" they meant “no law”), so I tend to be gratified on that score. But like everything else (including the 2d Amendment, btw) nothing in the Constitution is or can be absolute. So, is the harm that will flow from allowing corporations and unions to make campaign contributions serious enough to warrant the restriction?For these purposes, let’s ignore the threshold question of whether corporations or unions should have any 1st amendment rights at all. I assume they do and should but agree that this is a debatable issue. What interests me right now are two more practical questions. First, how much difference will direct corporate and associational contributions make in our electoral processes? Second, if there will be a difference will it be baleful or beneficent. My sense is that allowing corporate and union contributions will make very little difference in the end. Money in politics has already passed the point of diminishing returns. There is already so much relentless advertising from so many different outlets that by the time an election actually happens, the electorate is enervated. As I wrote elsewhere, supposing that more campaign money will make a difference to the electoral process is like supposing that another few inches of rain would have made a difference to Noah. For the same reason, I question whether the ruling will actually have much impact on the amount of money invested in politics. The people who would be making these contributions got to be where they are by being good at deciding how to invest money to produce a return. I see no reason to believe they would be more profligate in their political cost-benefit analyses than they are in their business analyses. They too are going to recognize that the incremental utility of additional campaign contributions or advertisements is already near zero. The one difference I do think the decision might make is to improve the transparency of the contributions. Money always finds a way, and if we think McCain-Feingold or other campaign finance laws have kept corporations and unions out of the election business, I think we are kidding ourselves. Allowing contributions to be made directly might reduce the allure of such subterfuges and PACs, “issue ads,” “soft money,” and outright graft, and that in my mind is all to the good. So on balance, my prediction is that this will prove to be a moderately important 1st Amendment case but a tempest in a teapot when it comes to money in politics.

Judge Friendly On Abortion

The WSJ's online "Opinion Journal" has a side-bar on it with links to other articles that bear (at least in the editors' minds) some relationship to the subject matter of the essay to which it is attached. In today's "Opinion Journal" was a review of two new books about the Supreme Court. For reasons that are not entirely clear, the sidebar contained, among others, a link to this: Before Roe v. Wade: Judge Friendly's Draft Abortion Opinion.

Judge Friendly is one of the two or three most famous American jurist never to sit on the Supreme Court and the idea that he had written an abortion decision prior to Roe v. Wade was both surprising and of considerable interest.

The article -- it reads more like a speech -- is by Judge Raymond Randolph who is now a judge on the DC Circuit Court of Appeals but who, in 1970, was a clerk for Judge Friendly. Apparently, Judge Friendly was a member of a three judge panel that considered a challenge to the New York abortion law three years before Roe v. Wade. Judge Friendly wrote a draft opinion, but it was never published because the case was dismissed as moot when the New York legislature repealed the statute being challenged.

Judge Friendly concluded (at least in his draft opinion) that abortion was not a constitutional right, and Randolph uses this and Judge Friendly's reasoning, as a kick-off to a much longer argument of his own as to why much of the Supreme Cort's "privacy" decisions over the last 40 years have been fundamentally misguided.

Randolph gets carried away in the end, I think, but Friendly's opinion is a thoughtful -- and thought provoking -- essay on the respective roles of courts and legislatures and on the tensions between the interests of individuals in personal liberty/autonomy/freedom of action and the interests of the State in legislating against matters considered by the majority to be immoral.

This tension is a matter of considerable interest to me (witness THIS, and THIS, and THIS for example), and I want to eventually write more about it. But for the moment, I will leave you with Judge Friendly's thoughts:

[The heart of the plaintiffs' argument is]that a person has a constitutionally protected right to do as he pleases with his--in this instance, her--own body so long as no harm is done to others. . . . [This] principle would have a disturbing sweep. Seemingly it would invalidate a great variety of criminal statutes which existed generally when the 14th Amendment was adopted and the validity of which has long been assumed, whatever debate there has been about their wisdom. Examples are statutes against attempted suicide, homosexual conduct ..., bestiality, and drunkenness unaccompanied by threatened breach of the peace. Much legislation against the use of drugs might also come under the ban.

Plaintiffs' position is quite reminiscent of the famous statement of J. S. Mill. This has given rise to a spirited debate in England in recent years. We are not required to umpire that dispute, which concerns what a legislature should do--not what it may do." . . . [Y]ears ago, when courts with considerable freedom struck down statutes that they strongly disapproved, Mr. Justice Holmes declared in a celebrated dissent that the Fourteenth Amendment did not enact Herbert Spencer's Social Statics. No more did it enact J. S. Mill's views on the proper limits of law-making.

[The evidence in the case dealt with] the hardship to a woman who is carrying and ultimately bearing an unwanted child ... [,] the plight of the unmarried mother, the problems of poverty, fear of abnormality of the child, the horror of conception resulting from incest or rape. These and other factors may transform a hardship into austere tragedy. Yet, even if we were to take plaintiffs' legal position that the legislature cannot constitutionally interfere with a woman's right to do as she will with her own body so long as no harm is done to others, the argument does not support the conclusion plaintiffs would have us draw from it. For we cannot say the New York legislature lacked a rational basis for considering that abortion causes such harm. Even if we should put aside the interests of the father, negligible indeed in the many cases when he has abandoned the prospective mother but not in all, the legislature could permissibly consider the fetus itself to deserve protection. Historically such concern may have rested on theological grounds, and there was much discussion concerning when 'animation' occurred. We shall not take part in that debate or attempt to determine just when a fetus becomes a 'human being.' It is enough that the legislature was not required to accept plaintiffs' demeaning characterizations of it. Modern biology instructs that the genetic code that will dictate the entire future of the fetus is formed as early as the--day after conception; the fetus is thus something more than inert matter. The rules of property and of tort have come increasingly to recognize its rights. While we are a long way from saying that such decisions compel the legislature to extend to the fetus the same protection against destruction that it does after birth, it would be incongruous ... for us to hold that a legislature went beyond constitutional bounds in protecting the fetus, as New York has done, save when its continued existence endangered the life of the mother. . . .

We would not wish our refusal to declare New York's abortion law unconstitutional as in any way approving or 'legitimating' it. The arguments for repeal are strong; those for substantial modification are stronger still.... But the decision what to do about abortion is for the elected representatives of the people, not for three, or even nine, appointed judges.

An undertone of plaintiffs' argument is that legislative reform is hopeless, because of the determined opposition of one of the country's great religious faiths. Experience elsewhere, notably Hawaii's recent repeal of its abortion law, [30] would argue otherwise. But even if plaintiffs' premise were correct, the conclusion would not follow. The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition[,] ... clearing the decks, [and] thereby enabl[ing] legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920's and 1930's. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here."

In a note to his clerk attached to the draft opinion, Judge Friendly suggested, presciently, that the arguments supporting a constitutional right to abortion would if accepted make it difficult to deny a right as well to assisted suicide:

If a woman has an absolute right to the destruction of a fetus, incapable of making a decision for itself it would be hard to see why a man or woman does not have an absolute right to have his body destroyed. The discomfort of pregnancy and the pain of childbirth are surely not [more] than what often attends years of invalidism without hope of cure. The economic burden of an added child--readily avoidable if the parents wish--are not of the same order or magnitude as the costs of many 'terminal' illnesses, which may consume or exceed the savings of a lifetime and entail misery for a surviving spouse.

The irony in all of this, of course, is that Friendly's rejection of Spencer and Mill is gratuitous. As Judge Friendly himself noted, in abortion cases there is "another" that is being harmed, thus providing a basis for distinguishing abortion from all of the other examples Friendly cites. And therein lies my greatest frustration with this body of law: Of all the awful things that have flowed from the abortion decision, one of the worst is that it has given libertarianism a bad name.

Idealism Is Dangerous

This article from the Washington Post is fascinating. It documents the collapse of "neo-conservatism," and in doing so provides yet another case study (as if we needed another) of how dangerous idealism is when untempered by realism.

As an aside (only), I have to note Richard Perle's ridiculously self-serving effort to avoid taking part of the blame, which WaPo does a decent enough job of skewering that I can simply quote it without comment:

In an interview last week, Perle said the administration's big mistake was occupying the country rather than creating an interim Iraqi government led by a coalition of exile groups to take over after Hussein was toppled. [Huh? How exactly would you have done that?!] "If I had known that the U.S. was going to essentially establish an occupation, then I'd say, 'Let's not do it,' " and instead find another way to target Hussein, Perle said. "It was a foolish thing to do."

Perle, head of the Pentagon's Defense Policy Board at the time of the 2003 invasion, said he still believes the invasion was justified. But he resents being called "the architect of the Iraq war," because "my view was different from the administration's view from the very beginning" about how to conduct it. "I am not critical now of anything about which I was not critical before," he said. "I've said it more publicly."

That is simply laughable, Richard, you spineless weasel. I haven't heard so much exculpatory hair-splitting since Bill Clinton was talking about Monica Lewinski.

It is almost too easy to make fun of Perle. Or Wolfowitz. Or Rumsfeld. Or Feith. Or any of those other "neo-conservatives" who were so convinced that America was on a mission from God (metaphorically in some cases; literally in others). But the quote that really captured my attention is from Ken Adelman, another one of the self-confessed intellectual architects of this war:

"The whole philosophy of using American strength for good in the world, for a foreign policy that is really value-based instead of balanced-power-based, I don't think is disproven by Iraq. But it's certainly discredited."

"Disproven" vs. "discredited." Now THERE's a distinction even a lawyer couldn't love. One cannot "disprove" ideas; one can only "discredit" them. But that is not the real point. It should not be necessary to "disprove" or "discredit" the idea that foreign policy should be driven by "values" rather than self-interest. The idealism that underlies Adelman's neo-conservatism not much different from that which underlay the Utopians or even the hippies. It is, for all its seeming ferocity, almost childlike in its naivete.

International relations is about self-interest and nothing else. If our self-interest aligns with our ideals, so much the better. But if our ideals and our self-interest diverge, only a fool would pursue the ideals.

The Iraq war was sold on the basis of realism and self-interest. In 2003, there was no talk about spreading freedom and democracy. It was all about getting rid of a government that was portrayed (and perhaps even perceived) as posing a clear and present danger to our security. But, as Adelman effectively admits, that was not really the true rationale of the people who orchestrated the selling of the war. Their true motivation was, as Adelman confesses, a "philosophy of using American strength for good in the world, for a foreign policy that is really value-based instead of balanced-power-based." Adelman is right that the fiasco in Iraq thoroughly discredits such an idea, and one can only hope it will stay discredited for another hundred years. But what is amazing to me is that these guys believed it in the first place. How do such men get to positions in which they control the levers of US power?

Mill Revisited: The Ambiguity Of Everything

For those of who have read-- and swooned at-- On Liberty by John Stuart Mill (perhaps the core document in the Libertarian catechism of which I, for one, am such a devotee) here is something to read and think about: "Thoroughly Modern Mill, A utilitarian who became a liberal--but never understood the limits of reason." The concluding few sentences are, perhaps, enough to get you to read the rest:

Yet Mill . . . never understood that wisdom is deeper and rarer than rational thought. He never understood that the intellect, which flies so easily to its conclusions, relies on something else for its premises. Those conservatives who upheld what Mill called "the despotism of custom" against the "experiments in living" advocated in "On Liberty" were not stupid . . . . They were, on the contrary, aware that freedom and custom are mutually dependent, and that to free oneself from moral norms is to surrender to the state. For only the state can manage the ensuing disaster.

Could this be true? Could it be, as Bork argues, that the more liberty is unconstrained the more likely it is to lead to totalitarianism?

I have to think about this one.

Why Can't We Be Friends II

A propos of this post from yesterday, there was an interesting article in the NYT Magazine today on the The Perils of Soft Power. It makes somewhat the same point I was trying to make in the previous post, except that it talks not about the Arab world but about Europe:

In recent years, a number of American thinkers, led by Joseph S. Nye Jr. of Harvard, have argued that the United States should rely more on what he calls its "soft power" -- the contagious appeal of its ideas, its culture and its way of life -- and so rely less on the "hard power" of its stealth bombers and aircraft carriers. There is one problem with this argument: soft power does not necessarily increase the world's love for America. It is still power, and it can still make enemies.

. . .

In the affairs of nations, too much hard power ends up breeding not submission but resistance. Likewise, great soft power does not bend hearts; it twists minds in resentment and rage. And the target of Europe's cultural guardians is not just America, the Great Seductress. It is also all those "little people," [who] . . . [b]y yielding to America-the-beguiling, . . . commit[] cultural treason -- and worse: they ignore[] the stern verdict of their own priesthood. So America's soft power is not only seductive but also subversive.

. . . .

Europe, mourning the loss of its centuries-old supremacy, either resorts to insulation (by quotas and "cultural exception" clauses) or seeks solace in the disparagement of American culture as vulgar, inauthentic or stolen. If we could consult Dr. Freud, he would take a deep drag on his cigar and pontificate about inferiority feelings being compensated by hauteur and denigration.

Two points:

First, there is an undertone of resentment in the Times piece that is every bit as tempting a target for Freudian analysis as is the European "compensation" to which that resentment is directed. The Euorpean inferiority is that of the Ancien Regime fallen on hard times. The American inferiority is that of the nouveau riche not getting the respect it thinks it deserves. The root of the resentments are the same: injured pride.

Second, as Billy Bob points out, it is easy to exaggerate the importance of these sorts of mewlings. Billy Bob is "not so sure" about my claim that "they hate our way of life." Depending on to whom "they" are, this is a point well taken. The Arab world and Europe are every bit as diverse as the United States in their attitudes, and just as it would be a mistake for an Iranian to think Pat Robertson speaks for America, it is a mistake to think that those excoriating America speak for their countires. In this regard we would do well to develop a little bit thicker skin.

But to me, Iran is different in one all important regard. Just as there are in Europe, there are "cultural guardians" in many countries -- perhaps every country -- for whom "America [is] the Great Seductress," who consider the millions of "little people" who yield to "America-the-beguiling" as "cultural traitors," and who resent most of all that these little people are "ignor[ing] the stern verdict of their own priesthood." In almost every case, probably even in Iran, these "cultural guardians" are no more representative of their countries than Pat Robertson is of ours. But in Iran, these cultural guardians are in power. They control the government. And it is this fact that makes Iran a unique threat. Think of the threat the United States would pose under Pat Robertson or worse yet, Fred Phelps

I do not for a minute believe that all or even most Iranians or Iraqis or Arabs hate they way we live or what we believe in. Quite to the contrary, I think many, perhaps most, would like nothing better than to walk in our shoes. But the Ahmadinejads and Zarqawis and bin Ladens are not among those. Those people truly do hate us and everything we stand for and they hate us all the more becuase our way of life is so alluring to their own people. It is this fact -- and I think it is a fact -- that to me makes the idea of controlling their nuclear aspirations through rapproachment so chimerical. Our choices really are between deterrence and preventative war. Which brings me back to this.

Dealing With Iran

Triggered by this post, I received the following e-mail from one of my sons (edited slightly):

Dad -

I am confused on your April 21st entry on the Iran nuclear weapon situation. What do you mean by deterrence? . . . Are you talking about containing Iran by convincing it that we could obliterate it in retaliation? Or is it that we would cut off economic, diplomatic or human relations in general? Overall, at this point, what threat could possibly be big enough to deter a country that just does not care what the rest of the world does or thinks? Moreover, why should they care so much when our president completely ignores Mahmoud Ahmadinejad's attempts at trying to solve the problem? I understand that what he said in his letter might not be "proposals for resolving the confrontation over Iran's nuclear ambition," but the fact that our government completely snubbed Ahmadinejad's probably serious attempts to solve a global problem in the way he sees best, seems to me to be another weapon in the global "Arrogant American" arsenal. And really, when we have a situation like the Iranian nuclear crisis that seems to be at the unsolvable point, having people think that we are intent on building relationships and working collaboratively with respect and a bit of humility, would be key. I am not talking about fostering "relativism run amok" I just want us to at least respect what the man has to say and not throw it out.

So I guess I have two questions: what do you mean by deterrence, and what do you think of Ahmadinejad's letter?

Jon

On the deterrence question, you have it right. I am talking about convincing Iran that if they ever used a nuclear weapon -- or provided one to others to use -- against us or an ally of ours, we would take them down as surely a night follows day. That's not necessarily to say that we would nuke them in return. We might be able to do what we need to do in that regard with more conventional forces. But, deterrence is premised on convincing the other side that any use of nuclear weapons would be suicide.

The question you ask about this -- "what threat could possibly be big enough to deter a country that just does not care what the rest of the world does or thinks?" -- is exactly the one that makes the prospect of Iran getting a nuclear capability so scary. For deterrence to work requires a rational actor on the other side, and there is room for doubt that the Iranian leadership is rational. How can one be certain that devotees of suicide bombings would not be willing to sacrifice the lives of hundreds of thousands of their own citizens in the cause of jihad? These people simply do not think the way we do. For them, death in the service of their religion is glorious. How can such people be deterred?

And, maybe that is your point. We can't prevent them from getting a bomb diplomatically, a preventative war is unthinkable and probably won't work anyway, and we can't deter them once they get it, so what's the solution? Shouldn't we try rapprochement? After all, one doesn't nuke one's friends, so maybe the way to deal with an Iranian bomb is to make Iran our friend.

Which, of course, leads into the second question you ask: "What do you think of Ahmadinejad's letter?" Can't it be seen as a "serious attempt to solve a global problem in the way he sees best?" Shouldn't we do more than just blow him off? In the words of the 1975 song: "Why can't we be friends?"

Well, I think there are a couple reasons. One, at least, is that they don't want us to be their friend. I think there is considerable truth to the oft-expressed notion that the mullahs and the Ahmadinejads that currently run Iran NEED a "Great Satan," in much the same way that Bush NEEDS the "war on terror." It is the great bogeyman that allows them to maintain and enhance their powers, to keep an otherwise restive populace in line. If I am right about this, efforts to become friends with Iran would end up making the appeasement analogy valid: even if we did everything Ahmadinejad's letter asks, if would not be enough. Nothing would ever be enough.

Then, there are the more concrete issues. Ahmadinejad's letter makes clear that the price of friendship with Iran, even if it were possible, would be pretty high. To take but one example, we would need, first and foremost, not just to abandon Israel, but to assist in its destruction as a state. I often wish that Israel had never happened. But, it is too late for that now. And I, for one, am not willing to countenance the destruction of Israel in order to become friends with Iran.

But it all goes, I think, a lot deeper than this. Consider the closing paragraphs of Ahmadinejad's letter:

Liberalism and Western-style democracy have not been able to help realize the ideals of humanity. Today these two concepts have failed. Those with insight can already hear the sounds of the shattering and fall of the ideology and thoughts of the Liberal democratic systems.

We increasingly see that people around the world are flocking towards a main focal point -- that is the Almighty God. Undoubtedly through faith in God and the teachings of the prophets, the people will conquer their problems. My question for you is: "Do you not want to join them?"

Mr. President,

Whether we like it or not, the world is gravitating towards faith in the Almighty and justice and the will of God will prevail over all things.

Here, finally, is the real Ahmadinejad. It is not really our foreign policy he hates. His beef is with who we are, how we live, what we believe. It is not our policies or actions he hates, it is our culture and civilization. We are, to him (and his ilk), the "Great Tempter," luring people into a corrupt, degraded, depraved, licentious and immoral lifestyle. What they resent most of all is the relentless allure western civilization holds for their own people. He (they) will not be satisfied until we too reject the "failed" teachings of liberalism (read freedom) and accept that only "faith in God and the teachings of the prophets" will allow people to "conquer their problems." Keep in mind that the "God" in which he insists we have faith and the "teachings of the prophets" to which he enjoins us to adhere and not the same "God" and "teachings" in which Christians and Jews currently believe. We would, of course, need to recognize that the Koran and Islam represent the "final truth." But to me, that is not actually the worst part. The worst part is the overtly theocratic manifesto. The flavor of the religion is not what is important to me. What is important to me is the rejection of liberalism. I am not willing to try to come to an accommodation with someone whose core goal is to get us to discard everything I believe in.

My sense: These guys are really and truly dangerous. I would no more give them a nuke than I would give one to Pat Robertson. The great scourge of our time is "true belief." True belief coupled with nukes is a very, very scary proposition.

All of this is not to say that we should not pursue rapprochement. I think the Bush administration refusal to have direct talks with Iran is silly. But as we try to work our way through this issue, we have to recognize that these guys are unlike anything we have ever had to deal with before. And we have to recognize that Ahmadinejad's letter is a lie: it is not our policies or our actions he despises. It is us.

Thinking Big On Civil Rights

Casting about for something interesting to opine on today, I came across Kevin Drums' challenge to "think big" on the issue of civil rights:

BIG IDEAS....PART 1....Here's a question for you. I am going to choose a series of broad subjects and ask my readers what single thing they would like to see done about them. Today's subject is....civil rights.

You may interpret that broadly to mean race issues of any kind. So here is my question: if you could pass any single piece of federal legislation related to civil rights, what would it be? Think big! Assume we have a liberal president and big liberal majorities in Congress. Don't worry overmuch about the Supreme Court. The only real rule is that you only get to choose one thing.

What would it be?

UPDATE: Quick note: the subject is "civil rights," not "civil liberties." I'm thinking primarily of race issues, but you're welcome to suggest legislation dealing with other aspects of civil rights if you wish. I do intend to address feminist issues separately, though.

As the quote indicates, Kevin was thinking primarily in terms of race. But I agree with several of his commenters that race is probably not the "big" civil rights issue anymore, especially if you are talking about what might be accomplished through legislation. This is not to say that racism has ceased to exist or is no longer a concern. It does exist and it is a concern. But it is hard to see what more could be accomplished legislatively at this point. At best, laws can only regulate overt conduct. Racism and, with one notable exception, other forms of suspect class discrimination (gender, religion, national origin, etc.) are today much more a matter of attitude that they are of overt action, and the law is a very poor instrument by which to seek to change attitudes. Indeed, seeking to use law to change attitudes is when civil rights and civil liberties come most clearly into direct conflict.

As noted, there is one exception to this: gays. Discrimination based on sexual orientation is probably the last form of de jure discrimination still widely practiced in this country. As such, it is a form of discrimination where legislation could make a huge difference. So, my first reaction to Kevin's question was that what I would most want to see (ignoring as he suggests the practicalities of achieving this) would be legislation outlawing discrimination based on sexual orientation.

But, as I thought about it, what I would really like is something broader; something that would achieve the same result for gays and yet offer benefits to us heteros as well. That something is an explicit and general right of privacy: a right to be "let alone" both by the government and by private institutions with respect to my personal, private actions and activities so long as those actions and activities do not unreasonably interfere with the correlative right of others to be similarly left alone. In fact, as long as we are thinking big, I would eschew legislation and incorporate that right into the Constitution itself. Something along the following lines:

Section 1. The right of privacy being the cornerstone of liberty, neither the United States nor any State shall make any law prohibiting, regulating, or authorizing inquiry into the private activities of any person who is 18 years of age or older, except insofar as such a prohibition, regulation or inquiry is shown by the United States or the State to be reasonably necessary to protect the health, safety, welfare, or property of another person or the rights guaranteed to such other person under the Constitution.

Section 2. Except as may be authorized by legislation consistent with Section 1 of this article, no person shall unreasonably discriminate against another person based on that person's private activities or inquire into the private activities of another without consent.

Section 3. The Congress shall have power to implement and enforce this article by appropriate legislation.

Sex is the area in which a need for such a right is most obvious. Nothing could be more personal or private than sex. And, so long as the sex is between consenting adults, nothing could have less of an impact on the rights of others to be similarly left alone. Thus, the right of privacy I have in mind would be explicitly designed to invalidate most state and private regulation of adult, consensual, sexual activity and would make both government and private discrimination based on those choices unlawful.

The right to marry the person of one's choosing, even if of the same gender, would also be protected. This too is a quintessentially private matter and there is no evidence to suggest that such marriages have any adverse impact on the health, safety, welfare or property or rights of any third party.

Even laws against such things as prostitution and polygamy would be inherently suspect and before the state would be permitted to ban or regulate such activities, it would have to show (a) that such activities posed an appreciable threat to the safety, health, welfare or property of third parties and (b) that the a ban or lesser methods chosen to regulate such activities imposed no greater constraint on the right of privacy than was necessary to protect such third parties.

But what I have in mind is broader than sex. For instance, laws criminalizing possession or use of drugs vel non would also be suspect, although laws banning or regulating the trafficking in such drugs would be acceptable. Also, it would still be permissible for the government and private entities to exclude drug users from certain positions based on a demonstrated potential for harm to third parties that might result from drug use in those positions.

Also, the right of privacy would extend to government and private investigations into private activities, except as authorized by legislation that has itself been shown to be necessary to protect third parties.

I am sure that this proposal is fully subject to the law of unintended consequences, and I will not pretend to have thought through all of the problems that might arise under such an amendment. But, I do believe that the right of privacy is by far the single most important right inherent in the concept of freedom, and I would like to at least hear a debate on ways to better protect that right.

Privacy vs. Morality

Reading the federal district court case striking down the Nebraska same-sex-marriage amendment launched me on a hyperlink-assisted voyage to a number of the major islands in the archipelago of the Supreme Court's privacy jurisprudence. Some of these I had visited before, though not recently. I had read descriptions of the others, but never actually visited them. The trip was fascinating, sometimes moving, and overwhelming relevant to -- indeed largely the source of-- what Justice Scalia calls "the Kulturkampf" that is going on in America today. It is a tour I would highly recommend you take, and, to make that easier, I am providing free "tickets" below:

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965): The start of it all. A married couple has a "fundamental" right to privacy with respect to their sexual relations that is protected by the Due Process Clause of the US Constitution (even though a right to privacy is nowhere mentioned in the Constitution) and a state ban that prohibits a doctor from providing contraceptives to a married couple is unconstitutional because it significantly intrudes on that right without serving any significant State interest.

LOVING v. VIRGINIA, 388 U.S. 1 (1967): "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival" and the state may not restrict that right so as to ban marriage between people of different races. (Note: the possible relevance of this holding to the issue of gay marriage was almost certainly not recognized by the court at the time. However, it has since been recognized by others, since the statute at issue did not preclude marriage as such. It only precluded marriage between two classes of people. What the court was saying, really, was that there is a fundamental right not merely to marry, but to marry the person you want to, and the state may not restrict that right based on some sense of what is "right" or "wrong").

STANLEY v. GEORGIA, 394 U.S. 557 (1969): The State may not criminalize the private possession of pornography.

EISENSTADT v. BAIRD, 405 U.S. 438 (1972): The right to sexual privacy recognized in Griswold is an individual right that extends to individuals whether or not married and the state may not make it a crime to provide contraception to individuals who are not married.

ROE v. WADE, 410 U.S. 113 (1973) : The right of a woman to control her own body is "fundamental" and the State may not entirely preclude abortions, although it may impose restrictions once the fetus achieves viability.

BOWERS v. HARDWICK, 478 U.S. 186 (1986) : This is the first of the post-Griswold cases involving homosexuals, although the anti-sodomy statute at issue actually applied to both homosexuals and heterosexuals. The Court characterized the issue as whether there was a "fundamental" right to commit sodomy, and, not surprisingly, concluded that there was not. Therefore, it held that statutes criminalizing sodomy (both heterosexual and homosexual) were not unconstitutional.

ROMER v. EVANS, 517 U.S. 620(1996) : The state may not enact a constitutional amendment barring the state and its political subdivisions from extending the state's anti-discrimination laws to homosexuals, lesbians and bisexuals.

LAWRENCE et al. v. TEXAS, Case no. 02-102 (June 26, 2003): Reversing Bowers. According to the Court this time around, the issue was not, as Bowers had held, whether there was a fundamental right to sodomy but whether there was a fundamental right to privacy with respect to sexual relations. Five of the Justices decided the case on substantive Due Process grounds, holding that, ala Griswold and Eisenstadt, state statutes criminalizing homosexual sexual relations were unconstitutional because they intruded on the fundamental right to sexual privacy without serving any legitimate state interest. Justice O'Connor agreed with the outcome, but based her concurring opinion on Equal Protection grounds (and would therefore not have overruled Bowers), since the Texas statute, unlike the Georgia statue at issue in Bowers, applied only to homosexual sodomy. In other words, O'Connor did not hold that homosexuals have a fundamental right to sexual privacy. Rather, she held that the sodomy statute was unconstitutional because there was no rational basis for the State's decision to criminalize it only for homosexuals.

As is often the case, the most interesting part of the Lawrence decision is Scalia's truly scathing dissent, in which he was joined by Justices Rhenquist and Thomas. No matter which side of this issue you come down on, I urge you to read it. If you disagree with the outcome, Scalia will provide you with all of the ammunition you could ever want. If you agree with the outcome, Scalia will, as always, make you think.

Among other things, Scalia points out that, if homosexual sodomy cannot be outlawed, it is very hard to find a constitutionally permissible rationale for bans on gay marriage. Indeed, he argues, it is very hard to find a basis for any law that is based primarily on morality. It is this aspect of Scalia's argument that primarily interests me about these cases.

As you will note, all of these cases are about sex, and each raises essentially the same question: to what extent (if at all) may the state regulate or criminalize purely private sexual activity where the only justification for such regulation is an effort to enforce a majoritarian sense of morality? With an amazing degree of consistency, despite significant changes in the make-up of the court over time, the answer is that the state's power in this regard is very limited, at least where there is no "victim" involved.

This last point -- about the absence of a victim -- is key, obviously. This line of cases does not lead inexorably to the de-criminalization of rape or child molestation. In the first of these there is no consent in fact and in the second there is no consent in law and probably not in fact either. The state has an obvious interest in protecting people from sexual predators and I doubt if anyone would argue that a right of privacy trumps that state interest. The existence of a putative victim is also what makes the abortion cases so difficult. Plainly there is more at issue in these cases than "just" morality.

But, there are lots of other kinds of "victimless sex" that are still criminalized solely for moral reasons in most if not all states. Prostitution is the most obvious example, but some others include polygamy and voluntary incest between consenting adults. Admittedly, in particular cases involving these types of sexual relations it may be hard to determine whether "consent" is freely and knowingly given; and if it is not, then the case would present an entirely different and much easier issue. However, in all three there are undoubtedly cases in which the participants are full grown adults acting entirely independently and voluntarily. What does the Griswold-to-Lawrence line of cases have to say about those? If we believe that majoritarian morality is not a basis, by itself, for regulating voluntary sexual relations among consenting adults, then are statutes outlawing prostitution, polygamy and incest between consenting adults also unconstitutional? And, if your answer to that question is "yes", how do you feel about laws against bestiality? In short, what role, if any, does morality have to play in state regulation of private consensual sex?

For now, at least, I just want to pose the question. If you want MY answer to it, you'll have to wait, since I haven't quite got it figured out in my own head yet. But, as prelude, let me say this: I have a great deal of trouble with any law that has as its sole basis the enforcement of majoritarian morality, and I am therefore inclined to argue that individual interests in privacy -- in "being let alone" -- outwieghs the State's interests in enforcing morality even in these cases.