Another PajamasMedia Article

Another PajamasMedia Article

"The Living Constitution vs. Original Public Meaning" appeared on September 11, while I was in transit to Chicago to participate in a symposium at Northwestern University School of Law, set up by the Federalist Society chapter at Northwestern. (My panel was discussing the meaning of "arms" in the Second Amendment.)

Montana & Intrastate Commerce

Some people are saying that this is a "sovereignty" issue. From the April 16, 2009 Helena (Mont.) Independent Record:

Gov. Brian Schweitzer has signed into law a bill that aims to exempt Montana-made guns from federal regulation, adding firepower to a battery of legislative efforts to assert states’ rights across the nation.

“It’s a gun bill, but it’s another way of demonstrating the sovereignty of the state of Montana,” Democrat Schweitzer said.

Since the law applies only to those guns that are made and kept in Montana, its impact is limited. The state is home to just a handful of specialty gun makers, known for recreating rifles used to settle the West, and most of their customers are out-of-state.

But supporters of the new law hope it triggers a court case testing the legal basis for federal rules governing gun sales.

“What we need here is for Montana to be able to handle Montana’s business and affairs,” bill sponsor Rep. Joel Boniek, a Republican and wilderness guide from Livingston, told fellow lawmakers during the bill’s House debate.

The measure is one of many introduced by state lawmakers across the nation seeking to confront what some see as a federal overreach into state matters that will be extended with the national stimulus plan.

I would say that Montana is just asserting its authority over intrastate commerce. Of course, that's a form of sovereignty--or just following the Constitution, which grants federal authority to regulate interstate commerce--but leaves regulation of other commerce to the states.

Count on the lunatic left of the Democratic Party to raise the race card, rather than admit that the objections to the Obamination have nothing to do with race, and everything to do with overreaching federal power:

Opponents of the state sovereignty bids, however, warn they could give legitimacy to the kind of anti-government ideas that fueled the militia movement in Montana and elsewhere.

“When you really actually get in and look at it there is a lot of what we feel is very dangerous, very anti-government language that reads very similar to posters for the militia movement in the 1990s,” said Travis McAdam, the interim director of the Montana Human Rights Network, a group formed to oppose racism and extremism.

One of the few state Senators who voted against the gun bill — Sen. Christine Kaufmann, D-Helena — is that group’s director when the Legislature is not in session. She ties the bills’ proliferation to fears about the Democratic administration of President Barack Obama and stimulus spending.

“I do think that there is a kind of renewed vehemence to this kind of right-wing rhetoric being spewed by conservative talk show hosts to rile the troops and they are using the fact that we have a Democratic, black president as one of their rallying calls,” Kaufmann said.

This isn't "anti-government" but an attempt to return power to the states that has been usurped by the federal government. You can make the case that states aren't free of the same problems as the federal government when it comes to abuse of power; there's plenty of historical precedent for this. But in most of America, the state government is considerably more responsive to popular sentiment than the federal government, simply because state legislators come from districts that are measured in the thousands to tens of thousands--instead of the roughly 400,000 that each member of the U.S. House of Representatives now misrepresents.

Progressives Making Progress

Progressives Making Progress

David Gans and Doug Kendall over at Balkinization admit that the method by which the Supreme Court has applied parts of the Bill of Rights to the states through the Fourteenth Amendment is suspect:

For the last forty years, the Court’s fundamental rights jurisprudence developed under the Due Process Clause has been dogged by persistent claims of illegitimacy. Roe v. Wade has been the target of most of these attacks, but the claims made by Roe’s attackers go well beyond Roe or even abortion rights. Justice Scalia – the most fervent of the challengers – argues that the protection of unwritten fundamental rights is simply not lawyer’s work. “The tools of this job,” he says “are not to be found in the lawyer’s – and hence not the judge’s – workbox.” But one need not reach for tools beyond Scalia’s favorites—text and history—to see that judges properly protect substantive fundamental rights not enumerated elsewhere in the Constitution. On Scalia’s own terms, his objections fall flat when faced with the text and history of the Privileges or Immunities Clause.

The words of the Privileges or Immunities Clause protect the substantive fundamental rights of all Americans. As Senator Jacob Howard said in the Senate debates on the Amendment: “[i]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States . . . .” Many others said the same thing, and the Amendment’s opponents never once contradicted them.

The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there. In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights. These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution. The framers’ thinking should hardly be surprising. The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.

They start out well, but then insist that using the "Privileges or Immunities" clause of the 14th Amendment gets to the same results as Roe v. Wade (1973) and Lawrence v. Texas (2003). This is incorrect. To use the P&I clause in an honest way would require us to look at what rights were generally recognized in 1868. Was there a right to eat meat in 1868? I doubt that there was even a single state law that regulated it. But for many of the examples that Gans and Kendall, such as abortion and homosexuality, there was a consensus the other direction, that these were legitimate exercises of state power in the interests of public morality. Hence, homosexual sex was a felony in every state. Abortion, at least from "the quickening" had been a criminal offense (although infrequently prosecuted) for decades, and at least some states were beginning to criminalize it in the first trimester. There was no recognized right to homosexual marriage in 1868; indeed, I suspect that if you had argued the case in print, you would likely have been prosecuted for publishing indecent material (another reminder that freedom of speech and the press, while certainly examples of "Privileges or Immunities" did not include the broad definition that the Court has recognized).

It is important to recognize the dangers of ends-based legal theories. Originalism doesn't always give us everything we want. Was there a right to keep and bear arms? Yes, but not quite as unlimited a right as I would like there be there. The only laws that interfered with the broad exercise of that right were the ones that the drafters of the 14th Amendment clearly intended to destroy by its passage--and that opponents acknowledged would be struck down. But as much as I would like it to be otherwise, I do not think that an honest assessment of the evidence from 1868 would argue that ALL modes of bearing arms were completely protected. There was certainly no consensus that concealed carry was a protected right--and many states that clearly regarded it was a grievous evil within the authority of the state to regulate.

I'm glad to see progressives acknowledging that the Due Process clause precedents are seriously flawed, and coming back to looking at Privileges or Immunities. But an honest evaluation of the evidence doesn't give them the results that they want.

I Am So Surprised

I Am So Surprised

Orin Kerr over at Volokh Conspiracy quotes from a memoir of working for former Supreme Court Justice Goldberg that is astonishingly honest:

What was Justice Goldberg like?

He was a wonderful person. Very warm. He treated his law clerks like family. Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result, and you never really asked whether it was just or not. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice.

This explains a lot about Goldberg's historically ignorant concurring opinion in Griswold v. Connecticut (1965), in which Goldberg used the Ninth Amendment, incorporated through the Fourteenth Amendment, to strike down a very stupid law. The problem, of course, is that the Ninth Amendment was a limitation only on the federal government (not the states), and even the privileges and immunities clause was only supposed to impose the first eight amendments on the states.

If you think there's something really neat about a judge using his own personal view of "What is just?" to decide the outcome of a case--consider what would happen in an alternative universe where the Rev. Fred Phelps wasn't disbarred, and ended up on the bench.

It wasn't just that Griswold was wrongly decided (although I can't complain too much about the result in that case)--but that it opened the door to a series of other decisions that were considerably more destructive to constitutional law, such as Roe v. Wade (1973) and Lawrence v. Texas (2003).

The Constitution Was Not A Libertarian Document

The Constitution Was Not A Libertarian Document

Over at Volokh Conspiracy, everyone and their brother is going on about how wonderful it is that the Supreme Court may have to decide whether state laws prohibiting various sex toys are constitutional or not. Professor Somin is the latest to chime in with this attitude that of course such laws are unconstitutional:

The US Court of Appeals for the Fifth Circuit recently struck down Texas' law banning the sale, lending, or giving away of sex toys. I think that the court was right to conclude that the sex toy ban is unconstitutional under the Supreme Court's decisions in Lawrence v. Texas (which invalidated laws banning both homosexual and heterosexual sodomy), and Griswold v. Connecticut (striking down bans on the sale of contraceptives).

There is an obvious distinction between Lawrence and the sex toys case in so far as anti-sodomy laws are often motivated by hostility to gays; anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group. However, as the Fifth Circuit opinion notes (pg. 8), the Lawrence decision was deliberately written to avoid basing its reasoning on the anti-homosexual motives behind anti-sodomy laws. Instead, "the [Lawrence] Court explicitly rested its holding on substantive due process, not equal protection. ... [T]he Court concluded that the sodomy law violated the substantive due process right to engage in consensual intimate conduct in the home free from government intrusion."

I think this is a stupid law. Unfortunately, it is rather difficult to persuade some people that there's a difference between "stupid law" and "unconstitutional." The U.S. Constitution was not, and is not, a libertarian document. At best, it limited federal power in most areas (which the Court has generally ignored since the 1930s), limited state power in a few areas (see Art. I, secs.9 and 10), and pre-empted state power in a few others by granting these powers to the federal government (see Art. I, sec. 8). But it otherwise left nearly all power to the states. State constitutions could, and often did, protect individual rights from state tyranny, but the U.S. Constitution wasn't limiting their power.

Significantly, states engaged in all sorts of regulation of sexual morality for many decades after ratification of the Bill of Rights: laws banning adultery, sodomy, premarital sex, prostitution, and obscenity. And oddly enough, I can't seem to find any examples of courts striking down those laws for violating this libertarian Constitution until very recently. This is rather like the academics who are convinced that the Second Amendment couldn't possibly protect an individual right, and then spend time trying to twist the historical evidence to suit the public policy conclusion that they want.

Starting with the 14th Amendment, bits and pieces of the first eight amendments have been slowly applied to the states. Proponents of the 14th Amendment, such as Rep. John Bingham, were very clear that the privileges and immunities clause would impose the first eight amendments to the states. The Court, for a variety of stupid reasons, chose to ignore the privileges and immunities clause, and engaged in what is called "selective incorporation," slowly applying some (but not all) of those protections to the states through either the due process or equal protection clauses of the 14th Amendment. While they might be achieving the original intent, piecemeal, it was certainly not what was expected.

Sometimes, however, rights have been plucked out of the behinds of some federal judges that can't be found in either the text, or the historical record of original intent. In the case of Griswold, Justice Douglas's opinion concluded that there was some right of privacy:

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630 , as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."

Yet somehow, in spite of almost a century and a half of meddling in "the privacies of life" with all sorts of laws regulating sexual morality and contraceptives, no one seems to have noticed the conflict before. As stupid as this law was, Douglas was just reaching into thin air to find a basis for striking down a law he didn't like.

Even worse was Justice Goldberg's concurring opinion that found that the Ninth Amendment in some way limited state authority to pass stupid laws. Yet Madison (who was actually a proponent of a Bill of Rights that limited state power) was very clear that the Ninth Amendment limited only the federal government--not the states. See Annals of Congress, 1:456, where he very clearly recognized that there was legitimate concern that creating an enumerated list of rights might be interpreted as meaning that any rights that were

not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempt it, as gentlemen may see by turning to the last clause of the fourth resolution.

You can read the "last clause of the fourth resolution"--the ancestor of the Ninth Amendment, at Annals of Congress, 1:452.

As previously mentioned, proponents of the 14th Amendment, such as Rep. John Bingham, were very clear that the 14th Amendment's privileges and immunities clause only imposed the first eight amendments on the states. Why only eight? Because the Ninth Amendment, as Madison observed, was to protect against federal denial of individual rights:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Tenth Amendment was not limited to protecting individual rights; it included provisions that protected some elements of state power from an overreaching federal government:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

No matter. It doesn't matter what the Constitution says, or what everyone understood it to mean in 1789, or in 1868. This attempt to reimagine the Constitution as being a libertarian manifesto is historically inaccurate.

A Constitutional Right To Solicit Sex In The Men's Room

A Constitutional Right To Solicit Sex In The Men's Room

The ACLU has once again done a fine job of combining a series of fairly reasonable decisions into a completely absurd result. Here's their amicus brief in support of my U.S. Senator Larry "Wide Stance" Craig.

The short version is this:

1. There is a constitutional right to have homosexual sex in private places. (Of course, this is the core error, as I point out here.)

2. If action X is legal to do in private, then soliciting someone to go somewhere in private to do action X is not only legal, but constitutionally protected free speech. (So if a guy walks down a busy street, crudely asking every woman he meets for a quickie, that's not disorderly conduct--that's a protected First Amendment freedom! Unless both of them are at work--then it's sexual harassment, not freedom of speech.)

3. Because the law prohibiting soliciting sex applies no matter whether you are going to do it in the restroom or go somewhere else for sex, the law thus violates a Constitutionally protected right. (A law that prohibited solicitation of sex in a public place might well qualify as Constitutional--although I am sure that the ACLU would challenge that on different grounds.)

On a parallel line, the ACLU argues that there is a right to privacy in a men's room stall based on a 1970 Minnesota Supreme Cour decision that held that two men having sex in a department store restroom stall had a right to privacy. And they argue that the proof is that is the police charged Craig with violating the right to privacy of the police officer in the next stall.

So here's a question: what makes it constitutional to limit sex in public places? And what makes a public restroom stall "private" while the locker room isn't? Almost any argument that starts out with, "You don't have to watch what happens in a stall" suffers the same problem if you change it to, "You don't have to watch what happens in the locker room (or in the middle of a public street)." The rules against sex in public places (or defecating in the middle of a public street) are purely esthetic choices reflecting traditional moral values. Why doesn't the ACLU sue to overturn these laws? Or is that just ten years down the road when they have successfully abolished the laws against having sex in locker rooms?

If you want your children to get used to seeing people having sex in the middle of public streets, make sure you vote Democrat for President this year. You can guarantee that lawyers who think the ACLU is "defending the Constitution" will end up on the federal bench.

Strict Scrutiny & Fundamental Rights

Strict Scrutiny & Fundamental Rights

I blathered on a bit earlier today about the differing standards of review that the courts use with respect to laws. As I mentioned, the vast majority of strict scrutiny applications to law seem to be state laws, and disproportionately involved in questions of race and national origin, where various groups have challenged discrimination as violating the equal protection clause of the 14th Amendment.

But what about the application of strict scrutiny to laws that do not discriminate against particular classes, but do impinge on fundamental rights? Because so many of the strict scrutiny decisions are decided based on application of the 14th Amendment (which applies only to the states), I found myself asking, "What are the existing precedents that would justify the Supreme Court applying strict scrutiny to fundamental rights, without the use of the 14th Amendment's equal protection clause?"

So far, I have identified the following cases where the courts applied strict scrutiny (or at least claimed that they did) to federal laws or regulations.

Really serious fundamental human rights questions:

Korematsu v. U.S. (1944) is the Japanese-American internment case--supposedly decided under strict scrutiny, but there is some cynicism about whether the Court really applied strict scrutiny in upholding the internment, or just claimed to do so.

Free speech and campaign contributions questions:

Buckley v. Valeo (1976) is a free speech case wrapped up in a dispute about campaign contribution limits.

FEC v. National Right To Work Committee (1982) is another free speech case involving campaign contributions.

McConnell v. FEC (2003), which upheld the McCain-Feingold limitations on campaign spending.

Obscenity definition questions:

Roth v. U.S. (1957) which held that obscenity was not protected by the First Amendment.

Ginzburg v. U.S. (1966), which also upheld an obscenity statute.

Freedom of religion:

U.S. v. Lee (1982), which argued that requiring an Amish employer to collect Social Security taxes violated the religious freedom guaranteed by the First Amendment.

Can you think of any other Supreme Court decisions that I have missed that involve:

1. A federal law or regulation.

2. A fundamental human right that was allegedly infringed.

3. Do not involve an identifiable class or group that is subject to special treatment? Oddly enough, Roe v. Wade (1973) seems to have been decided based on intermediate scrutiny--although Justice Blackmun's decision seems to weave all over the road. But it doesn't seem to be based on strict scrutiny. Also, cases like Skinner v. Oklahoma (1942) involve discrimination against a particular class--three felony convictions led to sterilization (or as one article described it, "Three strikes and you're snipped").

There probably aren't a lot of these because throughout most of American history, because of the genius of the Constitution in limiting federal power, the job of denying fundamental human rights was taken care of by state legislatures, not Congress. Hence, Gideon J. Tucker's famous observation, "No man's life, liberty, or property are safe while the legislature is in session."

I now need to find the time to read through these decisions, and find out if there is any consistent standard that they use for figuring what constitutes a fundamental human right that requires use of strict scrutiny. If only I didn't have my silly day job (the one that pays the bills) to go to in the morning.

Original Meaning and the Constitution

Original Meaning and the Constitution

This may be a surprise to many of my readers, but the original meaning of the Constitution isn't regarded as particularly important by many judges, lawyers, and law professors. Why? There's a rather dense discussion over at the Legal Theory Blog. But what it really boils down to is that much of the left has concluded that an original meaning interpretation of the Constitution would limit the power of judges to remake society. Not because the current state of our society is all that similar to America in 1789, but because following the original meaning of the Constitution in 1789 would utterly preclude most of the left's agenda.

My biggest criticism of the non-originalist interpretative models is this: If originalism is not the only valid basis for deciding how to interpret the text of a constitution, why did 55 men spend several months arguing about exactly how to compose the text of the U.S. Constitution? Why did the First Congress spend quite a number of hours in 1789 arguing about the exact text to send to the states to ratify? Why did the state conventions debate at length ratification of the Constitution and the Bill of Rights? If the meaning of any constitutional provision is simply what a judge today decides makes sense, then all that argument was for nought, and all the text of the Constitution and Bill of Rights can be replaced with a single sentence. "The judges decide what this means." Clearly, the people involved in this process: drafters, ratifiers, pamphleteers, and electors who picked the delegates to ratifying conventions, intended these texts to mean something, or they would not have spent so much energy making a decision that was going to be turned over to judges to figure out a method to justify why the living, breathing, constantly mutating Constitution that started out looking like a gazelle is now half Komodo dragon, half brontosaurus.

Jack Rakove's Original Meanings on p. 101 makes the claim that what the ratifying conventions said about the Constitution was of greater weight than what the participants at the Philadelphia Convention said, because they were elected by the electors of each state for the express purpose of making this decision. While Rakove doesn't argue that the Philadelphia Convention was illegitimate, it was clearly a case of a group that exceeded the authority granted them by the Continental Congress--a group whose legitimacy to make a new, national government binding on not just the States, but the people, was necessarily of lesser strength than the ratifying conventions elected for that purpose.

Original meaning matters. We are not bound by the "dead hand of the past," as the living, breathing, mutating school claims. When conditions and attitudes changed, we amended the Constitution. We discovered a potentially dangerous flaw in the judicial system, and in a surprisingly short time (considering the communications technology of the day), 2/3 of both houses of Congress passed, and 3/4 of the states ratified the 11th Amendment.

We corrected a defect in the presidential election scheme with the 12th Amendment.

We abolished slavery, guaranteed the legal rights of the freedmen, and guaranteed the right to vote regardless of race. (Admittedly, it took a bloody Civil War to make these happen.)

We guaranteed the right of women to vote, of 18 year olds to vote, prohibited poll taxes, banned alcohol, relegalized alcohol, created a national income tax, and changed the presidential succession, all through the amendment process.

The "dead hand of the past" doesn't preclude change. It does require that the change enjoy more than 51% support. The left is upset because they know that on a lot of the issues that they care about--same-sex marriage, stifling Christianity, confiscatory taxation on those who aren't yet rich--they aren't just lacking the requisite supermajority--they don't even have 51%. Hence, the importance of using non-originalist interpretative models for the Constitution. No need to wait (probably forever) for the masses to come to their side--just decide that what used to be a felony in every state is now a Constitutional right. How much simpler can it get?

Maryland High Court Rules Against Same-Sex Marriage Suit

Maryland High Court Rules Against Same-Sex Marriage Suit

The Maryland Court of Appeals (which is Maryland's highest court) has ruled against a lawsuit that claimed that "one man, one woman" violates the Maryland Constitution's equal rights regardless of sex provision. To my surprise, the Court of Appeals examined the evidence from contemporary documents to demonstrate that (surprise, surprise) in 1972, there is simply no evidence that this provision was intended to give women a right to marry women. No surprise; if anyone had claimed that this was the purpose, and been taken seriously, it would have gone down to defeat. The objective of the clause was to prohibit discrimination against women as a class that gave them less legal rights than men--and incidentally, guaranteed the reverse as well--that men could not be given less legal rights than women.

I'm glad to see the Court of Appeals decision deals with the Loving case, in which the U.S. Supreme Court struck down a Virginia law that punished interracial marriages contracted elsewhere, pointing out that the Virginia law was intended to promote white racial superiority, as evidenced by how it only prohibited whites from marrying non-whites; blacks could marry Asians, for example, without breaking the law.

Most importantly, the Court of Appeals concluded that there was no fundamental right to marry members of the same sex, and that such a law only has to pass the rational basis standard of review.

Unfortunately, the Court of Appeals repeats the falsehoods of Lawrence v. Texas (2003) that

For a significant period of American history, homosexual persons generally were not the object of regulatory focus because sexual and gender orientations differing from “traditional” sexual preferences were not well conceptualized by the public until after the Civil War.

... [T]he “concept of the homosexual as a distinct category of person did not emerge until the late 19th century”.

This is clearly false--not even open to serious argument, since a number of Colonial statutes did specifically prohibit homosexual conduct. The concept certainly existed, even though the word itself did not. As an example, consider this New Haven statute published in a 1656 law book:

If any man lyeth with mankinde, as a man lyeth with a woman, both of them have Committed abomination, they both shall surely be put to death. Levit. 20. 13.

Conformity

Imagine if Tennessee required private schools to teach Creationism, that homosexuality is a sin, and if you enrolled your kids in schools that didn't teach those things, the state would take your kids away. But this account is just the other direction, so I expect progressive sorts will back this up:

Fifteen Christian families from a tiny community of only about 1,300 people are making plans to leave their homes and work behind so that their children will not be forced by the Canadian government to attend "sanctioned" schools where evolution is taught.

A report in the Vancouver Sun said provincial officials have threatened the families with legal action, including the potential loss of their children to state control, if they do not abide by the mandatory education curriculum.

But leaders of the Mennonite families say they'll leave Quebec before giving up their children to the state indoctrination.

...

The Mennonites, whose forefathers broke away from the reforms of Martin Luther because they were not radical enough and adopted several distinctive practices including adult baptism, established their own school in the community a few years after they arrived. Last year eight children were enrolled in grades 1-7, and this year 11 students were expected.

Children are taught reading, writing, math, science, geography, social sciences and music, as well as English and French.

But they didn't use the government-mandated curriculum that includes the teachings of evolution, and other subjects to which parents objected. So authorities warned the parents they would face legal proceedings if their children were not enrolled in "sanctioned" schools this fall.

Goossen said the 30 parents and children in families who would be endangered will move immediately; the rest of the group will follow shortly later.

Officials said in addition to the issue of the curriculum, the teacher at the Mennonite school was not "certified."

"To do that, we would have to send teachers to schools we don't want to send our children to," Goossen said.

"We don't agree with the emphasis on evolution, which we consider false; we don't like the morality standards; and we don't like the acceptance of alternative lifestyles," he said.

There's a few things about Mennonite beliefs that I don't agree with--for example, their pacifism. (Unlike progressives, however, they aren't prepared to send out government agents with guns to force their pacifism on others.)

I also think that it puts kids at a terrible disadvantage if they don't learn about evolution. For all the evidence that evolution is a bit oversold by its priests, it is a good operating model for understanding biology, and you can't seriously criticize a theory that you don't fully understand.

There is also a pretty strong argument that a modern society can't operate if large fractions of the population aren't receiving some minimal level of education, and this is perhaps a good argument for requiring that parents get their kids educated. In a fair number of big cities, you can see the consequences of this, where the combination of destructive subcultures and public schools that don't work produce large populations of high school graduates who can barely read--and a fair number who can't read at all.

Still, when the government threatens to take your children because you won't put them in public schools, or requires them to attend private schools that teach a particular curriculum, this is totalitarianism--and far more dangerous than a tiny minority of dissenters who won't go along with the totalitarian program.

The KKK relied on this totalitarian technique when it persuaded Oregon to pass a ban on private schooling early in the 20th century. Fortunately, those evil strict constructionists on the U.S. Supreme Court struck down the law in Pierce v. Society of Sisters (1925), relying on the precedent in Meyer v. Nebraska (1923), which struck down a Nebraska law that prohibited teaching children in languages other than English. The decision recognized that parent have a right to decide whom to employ to teach their children--and in what language--and this statute violated the due process clause of the Fourteenth Amendment.

Canada has some very strong totalitarian tendencies. Doubtless this is why progressive sorts worship it so strongly.

Chisholm v. Georgia (1793)

Professor Randy Barnett has a paper about Chisholm v. Georgia (1793), the Eleventh Amendment, and the definition of "sovereignty" that he is circulating for comments; he blogs about it here.

First, a little background on Chisholm v. Georgia (1793). Chisholm was the executor of an estate of a man who had supplied Georgia with goods during the Revolutionary War--and who had never been paid. Chisholm sued the state of Georgia in federal court for payment. Georgia did not want to pay (I'm not sure why), and denied that the federal courts had any jurisdiction in such a matter. U.S. Attorney-General Randolph argued in Chisholm's behalf.

The U.S. Supreme Court ruled otherwise, deciding the case in Chisholm's favor. This being an early decision, much of the form that you may be used to in reading Supreme Court decisions isn't there; it is actually pretty confusing.

There was a pretty dramatic negative reaction in Congress to this. A corrective amendment to the Constitution was passed by 2/3 of both houses of Congress on March 4, 1794 and ratified by 3/4 of the states February 7, 1795--astonishingly quickly, suggesting that it enjoyed very broad support. The text of the Eleventh Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Barnett's paper makes several points that are quite interesting--and one that just strikes me as wrong. One of Barnett's claims is that Justice Wilson's opinion held that states enjoyed no sovereignty (in the "we're immune from suit unless we give you permission to sue us" sense). This is true; Wilson's argument definitely denies that a state is free to do as it wishes. Randolph, while refusing to deny that states enjoy sovereignty:

I acknowledge, and shall always contend, that the States are sovereignties.

But Randolph also pointed out that they were not completely sovereign under the Constitution, since there were a number of powers that they gave up as a condition of ratifying the Constitution of 1787:

I resort, therefore, to the body of it; which shows that there may be various actions of States which are to be annulled. If, for example, a State shall suspend the priviledge of a writ of habeas corpus, unless when in cases of rebellion or invasion the public safety may require it; should pass a bill of attainder or ex post facto law; should enter into any treaty, alliance, or confederation; should grant letters of marque and reprisal; should coin money; should emit bills of credit; should make any thing but gold and silver coin a tender in payment of debts, should pass a [2 U.S. 419, 422] law impairing the obligation of contracts; should, without the consent of Congress, lay imposts or duties on imports or exports, with certain exceptions; should, without the consent of Congress, lay any duty on tonnage, or keep troops or ships of war in time of peace; these are expressly prohibited by the Constitution; and thus is announced to the world the probability, but certainly the apprehension, that States may injure individuals in their property, their liberty, and their lives; may oppress sister States; and may act in derogation of the general sovereignty.

But a theme that appears in both U.S. Attorney-General Randolph's argument, and Wilson's opinion, emphasizes the injustice of allowing a state to welsh on a contract. Randolph observes:

Are States then to enjoy the high priviledge of acting thus eminently wrong, without controul; or does a remedy exist? The love of morality would lead us to wish that some check should be found; if the evil, which flows from it, be not too great for the good contemplated.

Wilson's decision also points out the importance of contract:

Is there any part of this description, which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done; if engagements are not fulfilled; is it upon general principles of right, less proper, in the case of a great number, than in the case of an individual, to secure, by compulsion, that, which will not be voluntarily performed?

Where Professor Barnett goes off the rails is his assertion that Wilson's argument that:

Let a State be considered as subordinate to the People: But let every thing else be subordinate to the State.

indicates a libertarian understanding of individual rights relative to the state. Wilson's rhetoric emphasizing that states are not sovereign, but to see this as evidence that Justice Wilson and other Framers regarded individual rights as taking precedence over legislative authority in the states is an extraordinary stretch. State government during the early Republic period adopt all sorts of antilibertarian laws. When such laws are overturned, it is not based on this free floating libertarian presumption that Barnett keeps finding where ever he looks, but on specific provisions of either state constitutions, or the federal constitution.