I did something new this year -- downloaded Cato Supreme Court Review (2010-2011) on to my Kindle. I could have downloaded it to my computer, but this makes it more portable. The series promotes an interpretation of the constitutional law in (to quote the foreword) "a classical Madisonian perspective, grounded in the nation's first principles, liberty and limited government." That's sounds nice, but it's boilerplate. The so-called "living constitutionalism" of Justice Brennan was based on such things, though what was "liberty" and how government was "limited" would be a matter of dispute.
The result is far from "largely unlimited government," particularly given all the times where the limits (hyperbole aside) are well shown. Though, thankfully, not all contributors lay it on so thick, the evil moment for many at Cato is the New Deal. To quote the foreword again: "the social engineering schemes of the Progressives. In time those schemes were 'constitutionalized' by the New Deal Court, not by amendment, as constitutionally required, but by legerdemain." So you claim. Likewise, in any number of ways, rights were more protected after the New Deal, particularly against state action. Strangely this wasn't noted.
Instead, there is a concern that after the New Deal, the Supreme Court only gave "fundamental rights" special protections. The idea there were certain rights "in their nature, fundamental; which belong, of right, to the citizens of all free governments" and warrant special protection from legislative control was however cited a hundred years before in a seminal case. If anything, the post-New Deal Court (putting aside limited spans of time during the "Lochner Era") was more protective of rights, the pre-New Deal Court tending either to be pretty lax or to only concern itself with a limited number of things. The pre-New Deal treatment of the First Amendment underlines the point. It were "progressive" judges that were most protective until the 1930s.
We are told that the fundamental rights were "defined quite often not as the Framers would have defined them, drawing on the common law, but as reflections of egalitarian aspirations." A core problem here is that a key aspect of "the common law" is that it develops over time, basic principles applied bit by bit to new cases, the law slowly changing in the process. Like a game of telephone, the final result will be quite different in various cases than the opening bid. School segregation is but one instance. And, repeatedly, "rooted in the traditions and conscience of our people as to be ranked as fundamental" -- that is, the common law -- continues to be the test. But, I thought "fundamental" rights aren't supposed to be the "liberty" interests we are supposed to be concerned about?
As the Supreme Court said over a hundred years ago:
Onward.
[One more thing:
And, the government has an obligation to secure "rights." If someone has the ability to do something because the government lacks a certain power, such as to enslave, this does not necessarily make it a positive "right" that the government has an obligation to protect in any fashion.]
The result is far from "largely unlimited government," particularly given all the times where the limits (hyperbole aside) are well shown. Though, thankfully, not all contributors lay it on so thick, the evil moment for many at Cato is the New Deal. To quote the foreword again: "the social engineering schemes of the Progressives. In time those schemes were 'constitutionalized' by the New Deal Court, not by amendment, as constitutionally required, but by legerdemain." So you claim. Likewise, in any number of ways, rights were more protected after the New Deal, particularly against state action. Strangely this wasn't noted.
Instead, there is a concern that after the New Deal, the Supreme Court only gave "fundamental rights" special protections. The idea there were certain rights "in their nature, fundamental; which belong, of right, to the citizens of all free governments" and warrant special protection from legislative control was however cited a hundred years before in a seminal case. If anything, the post-New Deal Court (putting aside limited spans of time during the "Lochner Era") was more protective of rights, the pre-New Deal Court tending either to be pretty lax or to only concern itself with a limited number of things. The pre-New Deal treatment of the First Amendment underlines the point. It were "progressive" judges that were most protective until the 1930s.
We are told that the fundamental rights were "defined quite often not as the Framers would have defined them, drawing on the common law, but as reflections of egalitarian aspirations." A core problem here is that a key aspect of "the common law" is that it develops over time, basic principles applied bit by bit to new cases, the law slowly changing in the process. Like a game of telephone, the final result will be quite different in various cases than the opening bid. School segregation is but one instance. And, repeatedly, "rooted in the traditions and conscience of our people as to be ranked as fundamental" -- that is, the common law -- continues to be the test. But, I thought "fundamental" rights aren't supposed to be the "liberty" interests we are supposed to be concerned about?
As the Supreme Court said over a hundred years ago:
The Constitution of the United States was ... made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of may tongues.... There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age, and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.Thus, the "liberty" protected by due process of law, the "limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" are not fixed by what was done in the past, the specific application of the text a developing process. And, again, it was post-New Deal that the Bill of Rights (though still not the Grand Jury Clause) was applied to the states. So, I can do without a bit of the sanctimonious tone about how "progressives" ruined things. But, the Cato series as a whole was repeatedly interesting, including some liberal voices like Laurence Tribe involved. The collection this time looks good with a few less business type cases that glaze my eyes.
Onward.
[One more thing:
But of equal importance, the implication -- that where there is no power there is a right, whether enumerated or not -- was made explicitly clear by the Ninth Amendment.If the government lacks the power to do some purely internal thing, such as use a certain file system, it is unclear what "right" (at least of value much worth noting) this offers to others. Second, "right" implies a moral thing that is protected by God or arising out of the nature of things. The mere ability to do something because the government cannot stop you doesn't make it a "right," even if it a matter of brunt power.
And, the government has an obligation to secure "rights." If someone has the ability to do something because the government lacks a certain power, such as to enslave, this does not necessarily make it a positive "right" that the government has an obligation to protect in any fashion.]