Back in May on the blog Public Discourse, James Stoner points out an interesting analogy between Apple and the government.  In a post primarily dealing with the porn scandal at the SEC, Mr. Stoner added the following interesting comments about Apple and the iPhone:

Coincidentally, during the week that saw the announcement of the report on pornography use at the SEC there also surfaced a comment from Steve Jobs, CEO of Apple Computers, defending his company’s ban of pornography “apps” for iPhone and other Apple products. Apologizing to a user for mistakenly rejecting an app with a controversial political cartoon, Jobs added, “However, we do believe we have a moral responsibility to keep porn off the iPhone. Folks who want porn can buy an Android phone,” (Android is the comparable product of his new competitor, Google). The Wired article relaying the comment interprets “Jobs’ opposition to porn [as] loud and clear,” but adds no reasons from Jobs for his opposition: Is his a moral objection to pornography, a purely aesthetic distaste, concern about his company’s branding, concern about its market with the parents of young teens getting their first phone, or some combination of all these? The response of many geeks was instantaneous and predictable: Don’t tell me what I can and cannot watch, that’s why I’ll never buy Apple, “The web is about openness. It’s about freedom.” For whatever reason, Jobs seems unyielding and his company vigilant. The Sports Illustrated swimsuit edition passes muster, even Playboy without nudity and a reader for the iPhone that allows downloading of the ancient Kama Sutra are allowed, but try to sneak pornographic images into an approved app and iTunes will cut you off.

He then adds:

[O]ne can commend Steve Jobs for steadfastly refusing to allow Apple to become a platform for easy access to pornography, and commend him as well for showing that this can be done through determined business leadership, without recourse to government regulation that can threaten legitimate freedom and impose its own social costs.

But can Steve Jobs really be commended for this? I suppose as one of the “geeks” offering the “predictable” response, Mr. Stoner would be unlikely to have much interest in or patience for my views on the subject of Apple and porn.  I think, however, that it is Mr. Stoner who has missed an important reason why there is little to commend about Apple’s decision to ban pornography from its most newsworthy device.  Although Steve Jobs may be able to limit access to porn, such limits are unlikely to change the hearts and minds of people who would otherwise seek to consume it.

The main flaw in Mr. Stoner’s argument is the unfortunate fact that he reads too much into the distinction between government, on the one hand, and Apple, on the other.  It is, of course, undoubtedly true that Apple is not the government.  Unlike the government, Apple cannot force you to buy its products, and it is far easier for me to buy an EVO-4G instead of an iPhone than it is for me to move from Michigan to Peru.  That said, Apple is, without a doubt, the top central planner of the iPhone environment, and within its electronic walls, Apple acts very much like a fascist government.  While Apple may not necessarily choose winners, they undoubtedly choose the losers of its domain, leaving behind the scattered remains of such notable products as Google Voice and Adobe’s Flash Player, along with many other less notable apps which they rejected from the App Store — and, thus, the iPhone — for numerous reasons, including no reason at all.  Also, like a government, Apple collects sales tax on every piece of software sold for the iPhone, and now seeks to do the same for every advertisement by pushing its iAd service.

In short, while it may be easy to avoid the iPhone environment, once inside, there is very little that can be classified as being “legitimate[ly] free[.]”

With freedom, thus, outside the question, I find it difficult to agree with Mr. Stoner that anything about Apple shutting down porn does anything good for society.  If Steve Jobs were blocking porn as a way to send a message about values, then certainly that would be something to be applauded — except that I don’t think anyone believes that to be the case.  Instead, Apple is engaging in a sort of morally void behavior which just happens to have a desired result.  It is doubtful that anyone who wants to consume porn will find themselves not wanting to consume it because Apple has forbidden the stuff from its iPhone.  People will simply need to go find it somewhere else.

When governments pass laws or companies enact policies that mandate some moralistic result, neither are usually very effective at actually transforming the morals of their citizens or customers.  There is, quite simply, no comparison between choosing to do the right thing versus being prevented from doing things wrong.  Imposing a law against pornography does not take away the desires which bring people to consume it any more than imposing a law of gravity takes away man’s desire to fly.

Rather than trying to outlaw porn, we as a society would be much farther ahead understanding the reasons which bring people to consume it and finding a more wholesome way to satisfy those needs.  If porn is being used as stress relief, we would surely be better off emphasizing other ways to reduce workplace stress either through job restructuring (to combat the cause of stress) or some other physical activity (to direct stressful energies in a more positive direction).  But most important is that people must be made to affirmatively want to do these things, not merely fall into them for lack of a viable alternative.

That said, unlike the government which I consistently believe should be reduced in both size and power, I hold no malice toward Steve Jobs or Apple.  The iPhone, iTunes, the App Store, and all such things are their business and Apple participates in the free market just the same as anybody else.  If Apple wants to banish porn, to choose winners and losers, to lay and collect taxes, or to do any of the other things that they do, then that is entirely their right.

But as I hit “Publish” using my myTouch 3G (with Google), I affirm my own right to make my own choices, and to have my own values to win or lose by the power of persuasion in the marketplace of ideas.

Tags: free markets, freedom, technology

In reading through my collection of news items, I found myself directed to an article in the Daily Mail referencing a new study published in the Canadian Medical Association Journal which reviewed the status of assisted suicide in Belgium.  The study raises some important questions about the policies necessary to allow for an effective assisted suicide program and may fundamentally challenge the idea that such a program can be administered at all.  With “death panels” still fresh in the minds of many Americans, this study is a sober reminder of what’s at stake when we begin to confront the wide expanse of issues related to end of life planning.

To clarify one point right up front: I do favor assisted suicide and would probably vote to legalize the practice if given the chance.  I say probably because I also believe that any acceptable assisted suicide program will require meaningful (state) government involvement to be implemented appropriately, including creating civil and criminal liability for medical professionals who stray too far in blurring the line between euthanasia and murder.

According to the study, of 208 physician-assisted deaths within their study group, 142 occurred with the explicit consent of the patient, while 66 were performed without patient consent.  The study noted that most of the deaths conducted without patient consent occurred in patients over 80 years old who were hospitalized, and the vast majority were patients who were either comatose or who had dementia.  In over 75% of all cases, the decision to end life was discussed with the patient’s family, and in only a few cases was the decision to end the patient’s life discussed with nobody.

The greatest concern has naturally gravitated toward the patients whose lives were ended without having given their express consent.   Such concerns all share in the same core belief that there is something wrong about other people deciding for us when it is time for us to die.  Without a strong principle of restraint, it is easy to see how lives my be ended for medical or political expediency, to help doctors meet bureaucratically imposed death quotas, or to pinch out a population with disfavored political views.

As assisted suicide continues to gain traction in the United States as an acceptable end of life practice, it is important for all of us to think about the practice in terms of our own end of life planning.  Just as we have grown accustomed to “advanced directives” which instruct hospitals and doctors on when to terminate life-saving care, Americans should begin to think about adding some “really advanced directives” concerning if and when it may be appropriate to medically terminate our lives.  For those without a legal directive on record, we should be able to fall back on the experience and policies which, so far, have been mostly successful at balancing the interests of individuals against their prognosis for life.

With a significant number of assisted suicides being performed in the absence of the patient’s consent, the Belgium study points out the need to be clear about our desires at the end of our lives, preferably long before we get there.  With appropriate protections and respect for patient wishes, there is no reason to think that assisted suicide will become a tool of murder against the unwilling.

In the editorial section of the New York Times, the editorial author takes a look at curriculum revisions currently working their way through the school board in Texas.  In describing the curriculum as “politicized,” and in light of the general tenor of the article, it is apparent that the author does not think highly of the changes going on in Texas.  The gut reaction the author intends to solicit, I’m sure, is revulsion at the idea that education in Texas is devolving into yet another political wasteland.  The charge is interesting, and worthy of attention.

Taking for granted that the curriculum in Texas has indeed become politicized, and that this is a bad thing, the obvious question to ask is, “What can be done about it?”  Answering that question depends on properly understanding how education became politicized in the first place.  The author identifies “social conservatives” as the group responsible for the political education that children in Texas may soon receive.  In reaching his answer, the author misses the deeper issue.

To understand how politics gets into the Texas curriculum, the most important factor is the composition of the school board itself.  At present, the Texas school board consists of five Democrats and ten Republicans, with elections every four years.  This makes the composition of the Texas school board identical to almost every public school board in the country: It is 100% composed of politicians.

Whenever politicians become important in any decision making process, it’s a sure bet that the results will be political. To state that any public school curriculum is politicized is to state the obvious.  Of course, what the author undoubtedly means but is not quite prepared to say outright is not that he minds the Texas school board being politicized, but that he minds it reaching a political result with which he disagrees.  Were the school board to have voted to emphasize Thomas Jefferson’s letter to the Danbury Baptists, the benefits of FDR’s New Deal including Social Security, and the great importance of the United Nations to international peace efforts and human rights, I doubt the editorialist would complain very much about politicization at all.

If I am mistaken and the author is truly concerned about politicization of education whether he agrees with the politics being taught or not, then the only real answer is to get rid of the politicians.  This is an area where private education, possibly supported by school vouchers, would be extremely effective.  I know that I would sooner trust a professional educator over a politician to decide what’s best to teach my children.

If, however, the editorialist’s problem is with the outcome, then the real lesson here is a lesson in democracy.  As the political process creates and builds powers, we all run the risk that those powers might be used in ways we do not approve.

Tags: education

Ever since his interview with Rachel Maddow, Rand Paul’s comments about the Civil Rights Act of 1964 have been the centerpiece of an unfortunately predictable one-sided conversation that the media appears to be having with itself about how thoroughly racist Paul’s comments are.  Even more unfortunate (though just as predictable) has been the media’s effort to discredit the tea party as racist by emphasizing that Rand Paul is, in some sense, their champion from Kentucky.  Whatever the merits of his position, the entire episode has left us with two important points which even conservative commentators have been tending to ignore.  The first is that nobody who understands Libertarianism will be able to find a racist motive in what Rand Paul said.  The second is that what Rand Paul said had nothing to do with the Tea Party.

Even if nothing else comes of his comments, what Paul has given us is an interesting starting point for a serious discussion about what it means to be a Libertarian.  To begin with, Libertarianism as a political concept is one that we know from Ron Paul’s 2008 campaign is a philosophy which Liberals can’t stand, and Conservatives tend to have difficulty swallowing.  In a nutshell, Libertarians believe that the government should do no more than it absolutely must.  In support of their philosophy, Libertarians tend to be skeptical of any government institution, even those with long and highly praised histories.  Libertarians also tend to be a bit irreverent when it comes to government institutions.  The skepticism certainly grates on the Left, and the irreverence tends to make the Right nervous.

Both traits, however, were certainly on display during the interview with Rachel Maddow.  In this case, the institution is the Civil Rights Act itself — in particular, the bits that make private sector discrimination illegal.  Even the most simple-minded understanding of the interview reveals that Paul has absolutely no love of discrimination in any form.  I find it inconceivable that he would allow discrimination to go on in any business that he owned, and I think it would be interesting to ask if he would frequent businesses which he knew to have discriminatory practices.  Yet, in his skepticism he clearly sees something improper about outlawing private sector discrimination, and in his irreverence he’s actually willing to say so.

However understandable his statement may be within the realm of Libertarian thought, what has been clear for a very long time is the fact that Libertarian thought does not dominate Conservatism, even the “radical” sort expressed by the Tea Parties.  Indeed, from what I’ve observed, the Tea Parties have been willing to mostly gloss over the deep divide between Republicanism¹ and Libertarianism by uniting on the common ground issue of fiscal responsibility in government.  Whether willful or not, the Tea Parties have done an excellent job of staying away from social issues and focusing intensely on the government’s role in the economy.  Were the Tea Parties a social-issues movement rather than an economic-issues movement, I doubt Rand Paul would have enjoyed much success.

In sum, most of the mainstream commentary about the Maddow interview has gotten the core issue predictably wrong.  However, I hope that Conservatives, at least, will look past the immediate spin from the mainstream commentators and use Rand Paul’s comments to think a bit more deeply about the role of government in society.  After all, we will only be able to put off for so long the evil day on which the Republican/Libertarian divide comes to a head.  The Civil Rights Act provides an outstanding starting point for having an adult conversation about the duties and obligations of our government.

1. For lack of a better term.  Think about the kinds of things Sean Hannity, Mike Huckabee, and other prominent Conservative commentators might say to get a feel for what I mean. [↩]

Tags: Libertarian, racial politics, Rand Paul

In what one could only wish was an April Fool’s joke, the EPA and NHTSA have released their new standard for Corporate Average Fuel Economy (CAFE) on American automobiles.  Based on the new standards, it appears that CAFE now joins the growing list of government names which don’t actually mean what they say.  Forget fuel economy, CAFE is now all about Carbon Dioxide.

To understand exactly what’s going on, it’s worth a brief history lesson in the history of vehicle output regulations.  In the US, vehicle regulations have essentially taken on two basic forms, one dealing with emissions, and the other dealing with efficiency.  Emissions based regulations focus, as the name suggests, on the chemicals being emitted from the vehicle’s tailpipe, and are designed to eliminate atmospheric pollutants which are directly harmful to human health, believed to cause global warming, or both.  Efficiency regulations, by contrast, are designed to reduce the amount of fuel used by vehicles in light of the fact that petroleum is a scarce resource.

The history of CAFE can be tied pretty much directly to the Arab Oil Embargo of the early 1970s.  At the time, fuel was not a particularly scarce resource, and the average motorist had little reason to be overly concerned about the amount of money being spent at the pump.  Auto makers, accordingly, focused on features that consumers were interested in; things like power and luxury.  This, of course, became a problem when the fuel supply shrank rapidly, causing people to become suddenly conscious of how far they could drive on a tank of gas.  In modern politics, fuel efficiency has been linked primarily to concerns over energy independence and the price of gasoline.

The new CAFE standard abandons that history entirely.  By refocusing CAFE on CO₂, the EPA has transformed an efficiency regulation into an emissions regulation.  Rather than regulating fuel efficiency directly, the EPA is now regulating the number of grams of CO₂ emitted per mile.  To maintain the illusion that CAFE remains about fuel efficiency as opposed to CO₂ efficiency, the EPA has put together a chart showing both grams of CO₂ per mile and the “equivalent” traditional miles per gallon.

The equivalence between Carbon Dioxide and fuel mileage, however, is based on a set of assumptions about how vehicle manufacturers design their cars and trucks.  In essence, it assumes that a standard vehicle emits a certain number of grams of CO₂ per gallon of gasoline.  Unfortunately for consumers who care about fuel economy, there is nothing magical about that number.  Manufacturers could, for instance, install a heavy CO₂ scrubber which adds weight to the vehicle, thus reducing its miles per gallon, even as it drives CO₂ emissions toward zero.  That approach is, in essence, exactly the approach taken to reducing other pollutants to comply with emissions regulations.

At present, consumers have become reasonably conscious of fuel efficiency and consider the number of miles their vehicle will travel per gallon of gas as a factor in buying a new car or truck.  As such, it’s an open question whether this revision to CAFE will have any effect on fuel efficiency overall.  It is important to be aware, however, that the government will no longer be in the business of driving up fuel efficiency.  They have now set their entire focus on carbon.

Tags: climate change, energy

A post today by Michelle Malkin brings to light an interesting provision of Obamacare which will apparently target funding at racial minorities.  As she details with a good deal of clarity, this would seem to be an invitation for generating illegal racial preferences in healthcare.  While this, itself, is not a violation of the Civil Rights Act (which Congress may modify or ignore at will), it may present a legal conundrum within the world of medicine.  It also reminded me of concerns that I expressed privately months ago about healthcare being used as a vehicle for political preferences; concerns which are now certainly credible enough to be worth active discussion.

While I do not recall when it first occurred to me, I have been concerned since sometime last summer about the possibility that the healthcare bill would eventually be used as a tool to leverage votes for Democrats.  The basic scenario works as follows: When healthcare rationing inevitably begins, funds will be directed preferentially toward states, counties, and cities which routinely vote Democrat.  The more insidious scenario looks a little bit different: Medical records will be paired, secretly or explicitly, with rolls of party affiliation, campaign contributions, and political activism, and those individuals who support Democrat candidates and policies will receive care more quickly and completely than individuals who are opposed.  However unlikely those scenarios seem, neither one is impossible, and the first appears to be already happening.

Regardless of which scenario ultimately plays out, the result is that voters will be placed into a voting system built from a framework of oppression.  While politicians are well known to offer money to favored constituencies, this becomes the first time in America’s history that politicians can literally begin to equate votes to matters of life and death.  Most voters would not find it a difficult choice to select between supporting some policy that they don’t like, or a politician that they would otherwise oppose, when the alternative is that they will not be able to receive a life saving cancer treatment in time.

No neutral observer could call trading votes for life anything other than false liberty.

Strangely, though, this potential avenue for abuse has been almost entirely absent from the debate over health care.  Throughout the entire debate, I can only recall having seen the question show up once, in a survey published by the RNC asking if voters were concerned “that the government could use voter registration to determine a person’s political affiliation, prompting fears that GOP voters might be discriminated against for medical treatment in a Democrat-imposed health care rationing system.”  My vote, of course, would have been (and is) quite affirmative, especially as the full blown public option was still alive and well as a possibility in August when that survey was published.  The flash of furor, though, was apparently strong enough that the impotent GOP backpedaled, said that the question was “inartfully worded,” and tried to re-frame it as being about privacy rather than political gamesmanship.  With the GOP’s apology issued, the issue promptly disappeared from the debate.

But as we are already beginning to see, the GOP was right the first time.  Trading healthcare for votes is a serious issue about which Americans need to seriously engage.  Even liberals, who may think they’re safe with Obama in charge, should be scared of the potential for abuse.  Imagine, after all, if George W. Bush had been in charge of making your medical decisions; imagine the future of medicine under President Karl Rove.  Tying political support to medical treatment is far more dangerous than the financial quid pro quo that Americans have, unfortunately, gotten used to.

Perhaps Michelle discovering this first attempt will finally shed some light on a looming problem that should have been discussed months ago.

Tags: freedom, healthcare

In watching the House vote on healthcare this evening, I was struck rather profoundly by the fact that after the predictable cheering, the Democrat delegation broke out into a chant of “yes we can.” Perhaps I should have predicted that too, but it was a disgusting spectacle to watch as our elected politicians worked themselves into such a self-congratulatory frenzy. It is even more disturbing when you considered what they now proclaim they can do.

Most of the drama leading up to this vote comes from the fact that the American people did not want this bill to pass. If the people were on board, tonight’s vote would have been a mere formality; furthermore, it would have happened months ago. But the people stood up against the bill, some on principle, others formore specific reasons, but a clear majority did not want what happened tonight to occur. The people expressed their views in polls, by mail, by phone, by internet, and at the ballot box where a series of candidates did better than they should have had any reason to simply because they ran on conservative principles. Congress knew that the clear will of the people was that the bill must die.

So when they chant at us, “Yes we can,” what they are really chanting is that they can defy the will of the people, openly and in plain sight. They are saying that they can govern against us, not just against our will, but to our own detriment. They are loudly proclaiming that they can defile every principle the nation was built from, enshrined in the constitution, and cherished by everyone who believes in liberty.

I look forward to the coming election, where I expect the American people will have their own chance to be equally jovial in the streets. I look forward to 2012, when Obama will be thrown from office in disgrace. On these says of reckoning, the people will have their chance to take to the streets in and greet Washington with their own rallying cries:

“No, you can’t.” “Freedom reigns.”

As reluctant as I am to take issue with the well considered opinion of Mark Levin, I find myself doubting that the constitutional case against the Slaughter Rule is as open and shut as I have heard him and other conservative commentators describe.  While the procedure set forth in the Slaughter Rule of considering the Senate Bill to have been “deemed passed” is clearly contrary to the legal history and tradition of the country, and to the concept of democracy more generally, there is no particular command in Article 1, Section 7 of the Constitution, or any other place within its text, that definitively rebuts the Slaughter Rule.

Article 1, section 7 of the Constitution states:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Mark Levin and other commentators point out from that text two phrases of paramount importance.  The first is the first sentence which states that “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States,” and the second comes in the middle of the paragraph to say that “in all such cases the votes of both Houses shall be determined by yeas and nays.”  From these two phrases, and with reference to Clinton v. City of New York, commentators have deemed it obvious that the Constitution requires actually voting on the bill to pass it.  Obvious and correct as this ought to be, it’s not actually what the Constitution says.

To begin again at the start of the paragraph, the clause introduces itself with the words “Every bill which shall have passed” (emphasis added).  Those words, right there, are in the past tense.  This paragraph, right from the start, is not talking about how to pass a bill; it is, rather, talking about how to take a passed bill and turn it into a law.  The remainder of the paragraph is consistent with the understanding that it applies to passed bills, rather than bills to be passed.  It first describes the presentment to the President, explains the process for handling a veto, including its override, and further explains what happens to bills that the President leaves sitting on his desk.  All of the things described by the paragraph are only possible on bills which both houses have finished with.  This paragraph, in other words, assumes that a bill has been passed somehow, but offers no command for how that passage must come about.

Reading on to the second interesting clause, the bill says that “the votes of both Houses shall be determined by yeas and nays” in “all such cases.”  The inclusion of the word “such” is clearly an invitation to examine the preceding context of that phrase and to limit its scope accordingly.  The preceding context is none other than the process for overriding a Presidential veto, meaning that what that sentence tells us is that vetos may be overridden only by yeas and nays, and that it is limited to that meaning by its own terms.  Had the word “such” been omitted, Levin would have a stronger position, although he would still have an uphill battle to defeat the obvious context in which that phrase was placed.

Ultimately, the strongest argument against the Slaughter Rule are originalist rather than textualist, and Clinton v. New York guides the way.  In that case, the Supreme Court held that laws can only be formed when (among other things) “a bill containing its exact text was approved by a majority of the Members of the House of Representatives.”  But even this language leaves open the argument that, because it takes a majority to adopt a rule, and the rule contains an approval of the bill, passing the rule is tantamount to a majority of Representatives approving the bill.  Regardless, it is clear that the Supreme Court has recognized that there is a traditional process for passing laws, which is a good sign.

I have little doubt that the founders would be astonished to learn that the Slaughter Rule is even being considered.  The English law traditions they inherited and the process the country has followed consistently ever since the founding is clear in that bills are passed with majority votes, not with parliamentary trickery.

If the Senate Bill should pass on the basis of the Slaughter Rule, I wish Mark Levin the best of luck in bringing his lawsuit and having the bill stricken in court.  There is no doubt that the proposed rule is an abuse of process and a direct assault on American tradition, perpetrated by politicians waging a war against the liberty of the American people.  I do believe, though, that it would be a mistake to rely on the text of the Constitution alone to defeat the Slaughter Rule.

Tags: constitution, healthcare

As one would not doubt expect from today, the media has been abuzz with thoughts and comments related to this afternoon’s oral argument in the case of McDonald v. Chicago. Most of the reporting has managed to crystallize around two salient facts: The Supreme Court will incorporate the Second Amendment, but the won’t do it through Privileges and Immunities.

With respect to the first fact, no piece of reporting I’ve yet to see has managed any more than a statement of agreement or disagreement with that the Court is poised to do. I’ll join this silly straw poll: Incorporating the Second Amendment would be an activist decision; Incorporation ignores the original understanding of the scope of the amendment, it ignores the unique anti-federal-involvement-in-state-gun-laws purpose which motivated the amendment, and it has no basis in the Constitution’s text.

More interesting is the bizarre confusion about what’s at stake when it comes to the use of the Privileges and Immunities Clause for bringing about that incorporation.

Under the Court’s current precedent, the Due Process Clause of the 14th Amendment provides every tool that McDonald could ever need to bring about incorporation of the 2nd Amendment. It also contains a great many other things. Most of what the Due Process Clause is said to contain has been rightly criticized by conservatives as being impossible to support under any reasonable reading of the text of the amendment. The Due Process Clause has become, in essence, an open-ended clause which allows the Court to pretty much do whatever it wants.

Perhaps recognizing that they would eventually need to reconcile their appropriate disdain for “substantive due process” with their misplaced desire to allow the Court to make activist decisions which favor conservative policy preferences, there has been a push to breathe new life into the Privileges and Immunities Clause of the 14th Amendment. Leading with a smear campaign against the Slaughterhouse Cases and culminating with today’s argument in McDonald, conservatives have certainly put up a good fight.

Despite an effort to promote the Privileges and Immunities Clause as being somehow more restrained than “substantive due process,” it was apparent that the justices saw at least partly through the charade. A parenthetical on SCOTUSblog tells the tale:

(In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

A more appropriate question might have been, “Why does the Constitution need two open ended clauses?” Or perhaps, “What does anyone gain by replacing one open ended clause with another?”

And if, as Roger Pilon states over on Bench Memos, “[most 14th Amendment cases] should have been decided under the more substantive Privileges or Immunities Clause,” might not one be forgiven for wondering what the point is in promoting this distinction without a difference? When the Court can turn Due Process (among other things) into “emanations from penumbras” into a “right to privacy” into a right to abortion on demand, it seems unlikely that any amount of “history,” no matter how much “better [it] informed the Court,” would have done anything to have “better checked the Court’s occasional activism.” After all, activism happens when a court ignores the overwhelming weight of text and history to arrive at a preferred decision.

I continue to be disappointed that conservatives have generally failed to remain true to the principles of judicial restraint when it comes to carrying guns. As I said at the time, the Court in Heller got to the right conclusion — individual right, no flat ban on handguns — but did so in a terribly activist way with an opinion I would not have joined. In this case, however, I continue to believe that incorporation is nowhere to be found in the Constitution and that, while a respect for precedent may council against disicorporating the Bill of Rights, there is no reason to extend its impropriety beyond where it has already gone.

Tags: 2nd Amendment, constitution