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.

Thursday, October 16, 2008

National Bosses Day

I'd never heard of this day before about a week ago. It's sort of weird. My staff took me out to lunch today. I certainly appreciate it, but it doesn't seem quite right. Days devoted to office and custodial staff are absolutely fine by me. People in these positions work hard and receive relatively little return. So days that remind me to say "thank you" and to provide a small token of appreciation (especially for custodial staff) are just great. But I don't really see the need for days that go the other way.

Anyway, today I got a bouquet of flowers, a free lunch, and two cards (one signed by the entire staff). Shoot, that's more than I get for my birthday.

Tuesday, October 14, 2008

Megan Swam 1,000-yard Free Style this Weekend

That's over a kilometer. Of swimming a race. It was the first time she'd swam it in a competition. She got a "B" time or an "A" time; I forget which. Her coach was a bit peeved at her afterwards because she still had a lot of energy left after the race. So he thought she had paced herself too slowly.

Megan's signature stroke has been the butterfly. She's made it to state several years in a row in the 100-meter and the 50-meter butterfly. But her free style has really been coming on the last year. It's surprised us a bit, since the freestyle is the most competitive stroke, in the sense that every little girl swims it at the meets. She doesn't like the breast stroke very much, and pretty much despises the back stroke.