By contrast, without judicial review, we would have to trust the legislature and the executive to abide by the Constitution’s protections, which for reasons already discussed, is entirely inadequate. For all of their consistent and plentiful historical abuses of the Constitution, we should have no reason to believe that Congress and the President will remain within their constitutionally permitted bounds. It is for this reason that our Founders intended that “the Judges, as expositors of the Laws would have an opportunity of defending [our] constitutional rights.”1
Sadly, judicial scrutiny of legislative and executive commands has been woefully inadequate, allowing our natural rights to be circumvented time and again. Consider the case of United States v. Carolene Products (1938). In 1923, Congress enacted the Filled Milk Act, which banned the interstate sale of skim milk reconstituted with coconut oil. Filled milk became popular during the era as an inexpensive alternative to comparable dairy products; the dairy industry lobbied Congress to eliminate this new source of competition. Although the purpose of the statute was purely to shield the government’s friends in the dairy industry, it was not so cleverly passed under the guise of a public health and consumer fraud law: Congress claimed that filled milk was unhealthy, and that it was manufactured to look like real milk, thus confusing consumers. The difficulty was that there was no evidence whatsoever that it was injurious to public health, and the claim that consumers would be “tricked” into buying it was as ridiculous as it sounds; and Congress had no authority to regulate for health or safety. Those bases for law were retained by the Tenth Amendment for the states.
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In the Carolene Products case, the Supreme Court, ever the “impenetrable bulwark against every assumption of power in the legislative or executive,”2 addressed the constitutionality of the Filled Milk Act. Although it clearly transgressed fundamental economic liberties, interfered with the natural workings of the market, and deprived consumers of the natural right to choose a cheap and perfectly healthy food product, the Court upheld the statute, notwithstanding its constitutionally illegitimate purpose. The Court’s reasoning was that the statute should be presumed constitutional, and thus the burden was on the defendant company to prove that Congress could have no constitutional authority and no lawful basis for regulating the sale of the product; a nearly impossible showing. By requiring a presumption of constitutionality instead of a presumption of liberty, the Court permitted Congress to transgress economic liberties for almost any reason it wished.
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The presumption that legislation was constitutional unless proven otherwise first arose during the New Deal era, and its significance in facilitating the growth of the welfare state cannot be overstated. Prior to the presumption of constitutionality, legislatures were required to prove that legislation was necessary (and hence an acceptable regulation of one’s liberties) with empirical information; the very information that the legislature would presumably have used in formulating its policy. Thus, if upon surveying the relevant facts, the legislature found there was a dire need for the regulation, the state would of necessity present to a judge its moral and constitutional bases for enacting the legislation, and if the neutral judge agreed, the legislation could be upheld. Only then could laws be legitimate; we could assume that after judges closely scrutinize legislative commands for their constitutional basis and fidelity, those commands really were necessary to safeguard our liberties, and therefore just.
The Court in Carolene Products summed up the shift to a presumption of constitutionality as follows:
The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.
This presumption of constitutionality, however, was not to be limited to economic liberties, but was to be the norm; the burden would only shift in very limited circumstances—circumstances so limited that they did not warrant reference in the main body of the opinion, but merely a footnote. Those limited circumstances would be where the statute violates an express provision of the Constitution, where it infringes upon the workings of the political process, or targets discrete and insular minorities.
Later cases, such as Griswold v. Connecticut (1965), established that certain judicially hand-picked “unenumerated” rights would also be entitled to similar treatment. In that case, Justice Goldberg, in his concurrence, noted that there was a “right of marital privacy,” which extended far enough to protect the decision to take contraceptives, and sufficient to force the government to prove its case criminalizing the use of contraceptives.
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Related to this burden of proof—the legal obligation of producing evidence and making a persuasive argument to a court—was what the individual actually needed to prove to demonstrate that legislation was unconstitutional. In the Carolene Products case, the Court stated that the individual challenging the law must demonstrate that there could be no rational basis for the statute; a legal element which has proven itself to be nearly impossible to satisfy. As for those limited, judicially determined circumstances where the burden shifts to the government, cases established that the state must have a compelling interest, and the means used to actuate that interest must be narrowly tailored so as to do the least amount of damage to fundamental liberties. This legal doctrine has resulted in a jumbled mess where racial affirmative action is scrutinized more closely than gender discrimination, and there is a fundamental right to take contraceptives, but not to establish paternity over a biological child. In essence, it is a system where recognized rights rest on tenuous legal grounds, and liberties on which our Constitution bases its legitimacy are only marginally protected.
The presumption of constitutionality is the central flaw of this entire system. It will be the individual who will have the burden of presenting that evidence. However, one must ask, Why should the individual have to present empirical data, rather than the governmental officials who gathered and relied upon that data in crafting policy? It is simply inefficient to place this burden on the individual; doing so is more burdensome. Might the government have advanced and secured the presumption of constitutionality—and the concomitant burden of disproving it upon the persons whose liberties the government has violated—in order to assure its maintenance and possession of its coercive powers? In a word: Yes. Thus, because the individual has inadequate access to information, it increases the chance that he will lose even where that evidence clearly and convincingly shows that the statute was unconstitutional.
As a simple matter of fundamental fairness, shouldn’t it be the one who encroaches upon liberty who has to show why he is justified in doing so? Certainly, this principle would apply to individuals; why not government as well? If someone on the street walks up to you and randomly punches you in the face, is it fair to assume that he was acting in self-defense, and you should carry the burden of proving otherwise? Would your answer change if the puncher was a police officer instead of a private citizen? Recall that all individuals are subject to Natural Law, as are all governments, which are merely human inventions. To suggest that governments should somehow be treated differently from individuals in how Natural Law applies to them is to violate the truths that Natural Law transcends the temporal, and that the order of things governs those things themselves.
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Moreover, shouldn’t the burden of proving the justification of an action which is adverse to another always fall on whoever is trying to take that action? Why is it that you said in our hypothetical above that the puncher should have the burden of showing he was acting in self-defense? Because the person taking an action which is adverse to freedom always has the moral duty to justify his actions. It is the same moral imperative not to restrict your neighbor’s
unfettered ability to make personal choices, like the choice to buy filled milk. To say otherwise is to assume that actions which are adverse to freedom are acceptable, and thus you are superior to your neighbor. Similarly, every government command restricts liberty. Government is, in essence, the negation of liberty. The burden of showing why government is justified cannot morally shift to the individual, the object of that restriction of liberty. To say otherwise is to say that the individual is inferior to the government, a myth which we have thoroughly rejected by now.
Another problem with the presumption of constitutionality arises where the evidence of unconstitutionality is of a “controversial and indeterminate” nature. In these cases the presumption will invariably win the day for the government. Thus, as a practical matter, the government is no longer bound by the Constitution unless evidence is clear and convincing. This has allowed government to circumvent constitutional constraints and encroach upon our liberties. Its justification? “You couldn’t prove otherwise.” Or, in other words, the government can violate your liberty if you cannot provide a legally sufficient answer to the question “Why not!?”
Such has been the case with nearly any restriction of economic liberties. In Williamson v. Lee Optical (1955), the Court upheld an Oklahoma statute which made it criminal for an optician to repair lenses without the patient first obtaining a new prescription every time. Did it matter that the statute had no ostensibly legitimate purpose, and was not even rationally related to any purpose at all (except to reward the lobbying efforts of Oklahoman optometrists)? Writing for the Court, Justice Douglas stated that “the law need not be in every respect logically consistent with its aims to be constitutional.” In another, less subtle word: NO.
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What is even more infuriating is the belittling view of our rights adopted by the Court, which necessarily accompanied this deference to the legislature (recall that government is the negation of liberty). What of our economic liberties? Those were viewed by the Court as vestiges of an outdated economic “school of thought” (laissez-faire). And in Plessy v. Ferguson (1896), good law until Brown v. Board of Education (1954), the Court chided that if African Americans felt humiliated by racial segregation, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” In sum, if we felt morally outraged by these statutes, it was purely the product of our own heterodox views, not the transgression of our constitutionally protected natural rights.
But, one may ask, doesn’t it cut the other way? That is, won’t there be a number of cases where the government was genuinely authorized by the Constitution to take some action, but it just couldn’t prove why or how it was constitutional with evidence? The answer is NO, because the only time government is supposed to act is when it is morally and constitutionally justified in doing so, that is, when it has evidence demonstrating not only a rational basis, but a necessity. Anything less would permit arbitrary—or even worse, invidious—government restrictions of liberty. Thus, the presumption of constitutionality can serve no legitimate purpose other than to increase the scope of the government’s authority beyond the Constitution.
It should be clear at this point that the presumption of constitutionality disparages our Constitution in principle, and our unenumerated natural rights in practice. But as a practical matter, how then are we to protect all of our unenumerated liberties, as the Constitution requires, without actually listing them? The answer is, of course, a presumption of liberty.
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What Is a “Law,” After All?
In Papachristou v. City of Jacksonville (1972), the Supreme Court considered the constitutionality of the following ordinance, which provided for the arrest and conviction of
rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, [and] persons able to work but habitually living upon the earnings of their wives or minor children. (emphasis added)
Essentially, the purpose of the statute was to enable police to arrest those people who just have that certain “up to no good” look about them; stated differently, to permit Jacksonville, Florida, police to arrest anyone they wanted to arrest. Although eventually you will find a genuine criminal if you arrest enough people who fit those descriptions, clearly such a law is unjust to the clumsy amongst us who were confused for common drunkards. For quite obvious reasons, the Supreme Court struck the statute down for being too vague.
Lest one believe this statute was an isolated incident, consider the text of the following Act:
For any lawful stop . . . made by a law enforcement official . . . where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. (Emphases added)
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As many readers were probably able to guess, this is the pertinent text from Arizona’s recent infamous immigration law, the constitutionality of which is being challenged and the enforcement of which has been enjoined, as this book is being written. How is the phrase “reasonable suspicion . . . [of being] unlawfully present in the United States” any less vague and ambiguous than “strolling around . . . without any lawful purpose”? If one wants to avoid getting stopped by the police while driving, he can simply avoid speeding or swerving. But how does one avoid looking like an illegal immigrant, or how does one walk without looking like a “habitual loafer” for that matter? And similarly, how are the police to recognize such persons?
The law, as I have said before, must have standards. If it did not, then Congress could simply speak words proclaiming that gambling is illegal, and without more, it would be. Or it could sneak the law itself into a drawer and never speak of it again (similar to what it does with earmarks). Even Positivists concede that, at a minimum, the law must be “written.” Thus, there are certain minimum requirements which a law must satisfy. By contrast, if it was not enacted according to these “procedures,” then it cannot be called a law.
So what exactly are these standards? The late, great Lon L. Fuller, former professor at Harvard Law School, outlines eight requirements. Laws must be
1. expressed in general terms, and
2. publicly promulgated, and
3. not retroactive, and
4. easily understandable, and
5. consistent with one another, and
6. not impossible to obey, and
7. not changed so frequently that the subject cannot rely on them, and
8. administered in a manner consistent with their wording.
What is Professor Fuller’s basis for identifying these eight requirements? He notes that without them, laws would be, as a practical matter, without any effect, since the purpose of the law is to “subject human conduct to the governance of rules.” Consider the Jacksonville vagrancy and Arizona immigration laws once more. How can one subject one’s conduct to such rules? In other words, I ask these questions: How does one avoid looking like an illegal immigrant, or a habitual loafer for that matter; and can the government proscribe the way people appear; and whose freedom do these laws protect? Without these standards in place, a legal system would fail to guide individuals’ conduct, and thus, it would not be successful as a legal system. Although many contend that society would degrade into a lawless, kill-or-be-killed disarray under a libertarian regime, we can see from Professor Fuller’s requirements that it is in fact when Natural Law principles are not a
bided by that true anarchy occurs.
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Although Professor Fuller’s analysis is more focused on the efficacy of a legal system, these requirements are equally necessary in ensuring that we are deprived of liberty only when genuinely warranted, the true purpose of due process. Consider how just a system would be if it did not comply with each of these requirements. For example, what if the law was so hopelessly complex that one couldn’t understand what it in fact prohibited? We could then be punished for doing something we didn’t even know was illegal. Moreover, criminals would be able to get away because police didn’t know that what they were doing was illegal either. Even worse, if laws were impossible to obey, the government could charge only its political enemies, and win a guilty conviction every time.
To this extent, consider the use of vagrancy statutes in the Jim Crow South. Because overly vague criminal statutes offer no standards, as suggested above, they also give law enforcement officials no guidance in how to apply those laws. This not only facilitates, but encourages discriminatory application of the law. Such was precisely the intended effect of such vagrancy statutes in the Jim Crow South. Recall that the vagrancy statute in Papachristou criminalized the act of “loafing” or, in other words, appearing lazy. These statutes would be used to pressure unemployed African Americans or unwanted Caucasians to enter into unfair labor contracts; many would accept unconscionable terms since the alternative was criminal penalties. Thus, these laws were used to perpetuate an economic system which resembled slavery.
But, one may retort, the Arizona immigration law is just “different,” that is, it is seeking to address a legitimate problem, and these legal requirements of definiteness are not protecting liberty, but simply inconvenient and impeding law enforcement efforts. It is therefore “unfair,” so the argument goes, to compare the law to vagrancy statutes in the Jim Crow South. The answer is that, although the Constitution was intended to set up an effective government, it was not intended to be “convenient” or, in other words, to be relaxed when we deem it proper to do so. Moreover, the Founders specifically warned us that the biggest threats to our rights were not sudden, outrageous transgressions (such as internment of Japanese Americans during World War II), but gradual, piecemeal erosions of liberty. Due process does not prevent Arizona from dealing with immigration problems in an efficient manner, merely from using arbitrary and vague laws which give police officers no guidance and permit them to violate anyone’s natural rights. Even if this constitutional “problem” may seem small relative to the problem of illegal immigration, that cannot change the fact that we are a nation of laws, and laws are required to have standards.
It Is Dangerous to Be Right When the Government Is Wrong Page 24
