Friday, October 24, 2008

The Court Goes Full Circle: Reading J.S. Mill into the Constitution

From time immemorial, the "police powers" of the state governments -- which refers to the domain of legislative authority, not to the power of police officers -- has been understood to extend to "safety, health, morals and the general welfare of the public." The phrase can be found in thousands of court cases. What it means is that, unless a state constitution prohibits an action, or unless the power has been delegated to the national government by the U.S. Constitution, state legislatures can legislate with respect to any matter that promotes the safety, health, morals or general welfare of their people.

(As a sidenote, the U.S. national government does not have police powers -- it is a government of delegated power. The states basically carved out a section of their police powers and delegated those powers to the national government.)

In his dissent in the case of Lochner v. New York (1905), Justice Holmes famously mocked attempts to read the Millian "harm principle" (via Herbert Spencer) into the Constitution. He wrote:

"The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not."

Well, J.S. Mill gets the last laugh on Justice Holmes. Almost a century later, a majority of the Supreme Court endorsed precisely the principle that Holmes mocked in his opinion:

"The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects."

The last sentence there is just a restatement of the "well-known shibboleth" that Holmes decries in his dissent.

The irony, of course, is that Lochner v. New York remains one of the most vilified cases of the 20th Century. It was tought definitively rejected, at least as applied to ordinary socio-economic legislation, by the late 1930s. A variant of the doctrine, however, climbed back into the Court's jurisprudence in the "privacy" decisions of Griswold and Roe v. Wade. It now seems to have come full circle, with the Supreme Court once again endorsing the Millian presumption as a matter of constitutional law.

I probably wouldn't mind it so much if I thought it would be applied broadly, to attempts by states to regulate all types of relationships. (I remember William F. Buckley once quipping the question whether liberty also protected "capitalistic acts between consenting adults.") But I have a feeling that it will be used selectively by the courts to strike down laws with which the judge personally disagrees, rather than being applied in a principled fashion.


Blogger CPA said...

Good analysis. Have your read Willmoore Kendall's attack on John Stuart Mill's conception of liberty (specifically of free speech)? It's very cogent, but of course, reading it now is just an exercise in nostalgia. I can't wait to be taxed for universal full day pre-school for all kids age three and up. (And even more for the day when Republicans come to accept this, and there the Democrats now have to advocate for universal full day pre-school for all kids age two and up . . . and one and up . . . and from birth . . . and from in the womb.


October 24, 2008 11:14 AM  
Blogger Jim said...

I've read a bit of Kendall, but not that.

Sometime I'll post Rosseau's criticism of free speech from his First Discourse.

I don't think he took it all that seriously (he wrote it for a prize, as I recall), and the more general topic is something like artistic freedom. (It's probably been ten years or more since I read it.)

As i recall, he made the funny, but logically possible, argument that a regime in which free artistic expression was allowed served art worse than a regime in which it was officially suppressed.

Basically, the argument was that mediocre artists would enter the market when art isn't suppressed, and flood society with mediocre works. Plus, even good artists would be tempted to pander to common (but profitable) tastes, thereby debasing even the good artists.

But when art is suppressed, it drives away the mediocre artists, and the good artists have to produce art for themselves rather than for mass taste, so their art is better as well.

It's a fun argument.

October 24, 2008 2:28 PM  

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