May 04, 2005

How Does The Supreme Court Work?
#6 Lochner, Lawrence and Liberty

In 1905 the Supreme Court found that a state violated the liberty of its citizens by regulating a private, consensual act and that there was negligible consideration for public health and safety in the regulation. In 2003, the Supreme Court again cited liberty and the 14th Amendment as a reason why a state could not regulate a voluntary, consensual act and threw privacy and equal protection considerations into the mix as well. The difference is that in 1905 Lochner v. New York invalidated a statute establishing a maximum length of the work-week for a bakery and in 2003 Lawrence v. Texas invalidated a statute criminalizing consensual gay sodomy. The court did not see the obvious similarities in the two cases, solely because one is economic and the other interpersonal.

For a full generation, the Supreme Court invalidated many statutes in a manner similar to Lochner as unconstitutional extensions of the police power of the government. A minimum wage in DC was struck down as an unconstitutional infringement on liberty when it

What’s interesting about this case that most people don’t realize is that BOTH the statutes banning gay sodomy and the laws establishing minimum wages stem from the Victorian progressives of the first decades in the 20th century. Prim and proper, the Victorian attitudes on sex and life are what people really mean when they deride someone as “Puritan” – the Puritans were rough and explicit about life and sex. The Victorians were intensely focused on modesty, cleanliness, morality and an improved life.

It was the Victorians who led much of the charge to ban prostitution, to ban alcohol through Prohibition (though the Temperance movement started slightly before the Victorians) and to establish all manner of economic regulations to limit the excesses of what was seen as the harsh world of business. In other words, it’s like a left-wing Democrat mixed with a very committed Christian. The ban on various sexual acts was seen as a way to protect virtue and morality by using the power of the state to deter such roguish behavior. In the same way, the minimum wage was seen as a way to keep women from resorting to immoral acts to sustain their livelihood – in other words, to keep them from becoming prostitutes, the Progressives wanted a mandatory minimum wage.

Don’t believe me? Check the Supreme Court opinion Adkins v. Children’s Hospital and see for yourself. The language isn’t entirely obvious, but a little era-specific historical knowledge makes it abundantly clear. After all, the Victorians were known for being reserved and sheltered from matters of sex and the body, so they’re unlikely to mention prostitution too often or too explicitly.

Of course, today we have a split. The economic interventionists have gone off mostly into interpersonal permissiveness, while the social interventionists are somewhat wary of too many new economic regulations. What’s especially interesting is the split among libertarians: those who support both Lochner and Lawrence as protecting liberty versus those who oppose both as ‘activist’ interpretations against original intent.

I come down on the side of Lochner, not least because of the opinions of the Founders, of classical liberals and the Enlightenment generally, the privileges and immunities clause, and of course the Ninth Amendment.

Few people realize that above all others the Ninth Amendment is probably the most important. Of specific freedoms, the First Amendment contains freedom of expression and conscience and is absolutely inseparable from a healthy representative government. The Second Amendment contains the teeth behind the right to life, because without the ability to defend one’s life, liberty and property, one cannot truly possess any of them. But of the actual Amendments, the Ninth is the most critical. It is the ideological lynchpin of the Founders and the entire movement of Western classical liberalism.

It is not an “ink blot” as Bork so indelicately put it. After all, how can one be an originalist without looking at the original meaning and thought behind the Ninth Amendment? They wouldn’t have added it just because it sounded nice; these were men with a fierce disregard for useless government, borne of distrust from worthless and abusive royal Governors and swarms of royal bureaucrats sent to this country for little purpose beyond exerting Parliamentary control. They wouldn’t have any interest in unnecessary offices, words or laws. The Constitution is by itself incredibly simple, and contains only a few statements of purpose – none of which appear in the Amendments. 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.

It’s obvious what these liberal men of vision meant when they said this. “Just because we wrote down these rights doesn’t mean our other rights are any weaker for not being listed; we only listed these to give us some extra security.” Part of the reason they didn’t go into further detail is that it was assumed the federal government should simply be limited entirely and that the states should be the ultimate guarantors of liberty. At the time this made sense, since the early state constitutions were generally far more protective of freedom than the federal Constitution was.

When the federal government expanded to correct the abuses of the states, the Constitution was not prepared to compensate and protect liberty against a more intrusive federal government. It was wholly necessary to balance the federal government against the states given the abject horrors of slavery and lynching and the total nonacquiescence of many Southern states to protect black voting rights. But the expansion of federal power was not complemented by an adequate expansion of enumerated federal rights. Fortunately, the Fourteenth Amendment was a large step in the right direction, but it did not specifically enumerate more than a few rights.

None of this would be a huge problem if the Ninth Amendment were properly understood and properly enforced. The thing we have to remember is that at the time of the Revolution, virtually everyone in the US was a major classical liberal. They believed deeply in freedom, expounded on the virtues of liberty, railed against the abuses of tyrants, and held high the dignity of property and labor (their hypocrisies notwithstanding). Even the Tories took the position that the Parliament was abusive and tyrannical and that the taxes were unrepresentative and unfounded; they merely believed that the disputes could be resolved and that one must be loyal to the King even when Parliament wavers.

In an atmosphere like this, where freedom and liberal thought are held in high esteem, it’s not hard to explain what the Ninth Amendment might have meant. Freedom is not simply a matter of listing what you can do. The list of what we have the right to do is literally infinite, limited only by technology and imagination. It’s far easier to list what we cannot do, which is limited to certain things like public safety and order, protection of property and the defense of life and liberty. Absent a relatively limited set of actions that violate natural law, one is perfectly free to do more or less anything at all. Of course, the Founders were not quite so explicit about this boundless liberty, but certainly it’s not a far exaggeration.

An examination of the historical debate on the Ninth Amendment is very illustrative. The Bill of Rights almost didn’t happen at all for one reason: the anti-liberty effects of it. Believe it or not, liberty was so completely uncontested that both positions were framed as pro-liberty. One side, generally the Anti-Federalists, thought that freedoms would be trampled by the Constitution and thought that the Constitution spent far too much time on granting powers than in protecting liberties. A Bill of Rights would clearly circumscribe our rights. The Federalists argued that listing some rights would necessarily de-emphasize the other rights that were not listed.

The Ninth Amendment was the compromise. It said clearly that just because the framers chose to include certain rights did not preclude the existence of other rights, just as righteously and strongly held, for the people. This meant the framers were free to protect speech, petition, arms, privacy and trial protections without creating the legal assumption that unlisted rights were excluded.

They could never list all of our rights, because for all practical purposes our rights are innumerable. Natural law is a wondrous and expansive thing, granting broad liberties to every law-abiding person. Listing everything we are of right allowed to do would be futile. Virtually any activity that’s free is a right – buying and selling property, engaging in love and emotion, corresponding with relatives, planting a garden in your yard, having a black chair instead of a brown one, cutting one’s hair long or short, drinking milk with tea instead of lemon and honey, and so forth. Aside from a limited range of activities, freedom is more or less unlimited. The framers were far from explicit about where to draw the line, but they knew that, wherever they ended, liberties were vast in number and indispensable in importance. For more in-depth examination of the Ninth Amendment debate, Randy Barnett has published a great deal of work on the subject.

Given that it would be horribly difficult to list all of our rights in the Constitution without making the Bill of Rights stretch into dozens or hundreds of pages and given that both the Federalists and Anti-Federalists acknowledged there were far more liberties – important, self-evident liberties – than just those listed in the Bill of Rights explicitly, we can tell what the Ninth Amendment meant. The Ninth Amendment is your right to freedom: your right to do what you, to be who you are, and to enjoy your natural liberty, limited only by your allowance of others to enjoy their natural liberties.

The Ninth Amendment is your right to be free, not just in speech or from unwarranted seizures, but in all the other aspects of your life. It is your right to pursue relationships of your choosing. It is your right to conclude your own terms of employment. It is your right to consume various pharmaceuticals, to purchase, sell and exploit property, and to enjoy your other natural liberties. It is your right to pursue wealth, happiness, love and education in whatever manner you choose, provided you respect the same for others.

I should clarify that the right to pursue education and wealth is completely separate from an entitlement to be handed one or both by the government, just as the right to pursue happiness and love does not equate to an entitlement to good relationships and satisfying home life from the welfare office. You have the right to pursue them and to participate in financial, interpersonal and other acts to bring them about according to your own choosing; you don’t have a constitutional entitlement to be gifted these things from your neighbors or the public treasury.

The lesson, then, is that both Lochner –now widely derided in legal circles– and Lawrence – now widely defended by supporters of the judiciary- were both fundamentally correct. Voluntary economic interactions and private romantic interactions are both natural rights that ought to be protected by both the Ninth and Fourteenth Amendments.

Liberty itself need not be explicitly enumerated to be explicitly protected.

WEBSITE: This is number six in a series of essays called How Does The Supreme Court Work? The full series can be found on my site here and is listed under tutorial issue articles here.


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