Freedom is a blessing. Regulation is sometimes necessary, but is always a burden. A decision not to regulate the way in which an owner chooses to enjoy the benefits of an improvement to his own property is adequately justified by a presumption in favor of freedom.1
—JUSTICE JOHN PAUL STEVENS
ASSESSING the propriety of state or federal legislation is a legal question. Courts must determine whether the purpose of a particular statute falls within the enumerated powers of the federal government or the police power of a state. The Presumption of Liberty places the burden of establishing the propriety of laws on the government. The government may meet its burden by showing that any restrictions on individuals are either prohibitions on wrongful conduct or proper regulations of rightful activity.
To be justified under the Commerce Power, federal laws must be regulating or protecting trade between the states. They may not seek to regulate intrastate trade or an activity that is not commerce at all, unless such actions themselves interfere directly with commerce and regulation is needed to protect and facilitate commerce between people of different states. Wrongful acts involving fraud or the physical interference with trade may be prohibited. State laws may properly protect the rights of A from infringement by B. The actual infringement of rights by private parties is wrongful and may justly be prohibited. Actions that do not inherently or inevitably violate rights but that create a substantial risk of violating the rights of others may only be regulated rather than prohibited altogether. Prohibitions and regulations that cannot be justified in terms of these principles are improper and unconstitutional.
Judicial review requiring the government to show that a law is consistent with a properly circumscribed conception of propriety would go a long way toward establishing the binding nature, or legitimacy, of such commands. Constitutional legitimacy, however, also requires a demonstration of a law’s necessity. Restrictions on liberty that are unnecessary to accomplish an enumerated end or power, or the state power of police, are not binding in conscience.
Because the issue of necessity will depend on the myriad facts and circumstances of particular laws and the problems they are allegedly needed to handle, assessing the necessity of legislation is trickier than establishing its propriety. Consequently, many have favored a presumption of constitutionality by which courts defer to the legislature’s judgment that its laws are necessary. Such a presumption would, however, largely make legislatures the judge of their own laws and would encourage them to pass unnecessary laws to satisfy particular factions rather than to serve the common good.
How, then, can necessity be assessed by courts? Courts actually have a good deal of experience assessing the necessity of statutes that violate express restrictions on legislative power, such as those provided by the Equal Protection Clause of the Fourteenth Amendment or by the free speech guarantees of the First Amendment. Although far from perfect, these techniques can be extended to apply to any infringement of liberty.
Taking the First Amendment as a model, when law is used to accomplish a proper purpose by restricting the liberties of the people, the Presumption of Liberty imposes a burden on those defending the necessity of these restrictions to show two things: First, the government must show that there is a sufficient “fit” between the liberty-restricting means it chose and the proper purposes it was seeking to attain. Second, the government must show that there were no less restrictive alternatives to the liberty-restricting means that were chosen.
The first debate over the meaning of the Necessary and Proper Clause concerned the constitutionality of the national bank. This debate involved whether the power to create a bank was incidental or “necessary” to an enumerated power and therefore a proper exercise of congressional power. Although John Marshall characterized this as a choice between “absolute” or “indispensable” necessity on the one hand, and a completely open-ended “convenience” on the other, we saw in chapter 7 that Madison’s and Hamilton’s positions were actually much closer to each other than this dichotomy suggests. Madison rejected as overly restrictive the idea of indispensable necessity whereas Hamilton allowed that some degree of actual necessity, not mere convenience, must be shown to exist.
The way courts now deal with the infringement of a “fundamental” right, or a denial of equal protection of the laws, is instructive. They require that a degree of fit be shown to exist between the “legitimate state interest” to be served by the statute and the means chosen to accomplish this end. For example, when assessing the reasonableness of regulations aimed at one person or group, as opposed to the general public, the courts have asked the government agency to articulate the problem they say such regulations are necessary to solve. They then see whether the need to solve these problems justifies the discrimination contained in the statute.
In the 1984 case of City of Cleburne v. Cleburne Living Center, the city had required the operator of a group home for mentally retarded persons to obtain a special permit under the zoning laws that operators of other group homes were not required to obtain. This special permit was denied and the construction of the group home was prohibited. The federal district court required the city to articulate the reasons for such a restriction and the city gave four: First, the city was concerned about the negative reactions of neighboring property owners. Second, the city was concerned that the facility was near a school and it feared that students might either be jeopardized by or ridicule the occupants of the home. Third, the city claimed that the home was situated on a flood plain. Fourth, the city expressed concern about the size of the home and the number of persons who would occupy it.
The Supreme Court rejected the first two of these concerns as based on “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding.…”2 In essence, these were improper bases “for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.”3 The court also rejected the flood plain, size, and density rationales because these same considerations would apply equally to other group homes that were not required to obtain a special permit. In essence, the city had not shown why it was necessary to restrict only this particular type of group home to prevent flooding or to reduce population density. Applying a restriction only to this type of group home and no other suggests that some other unstated motivation may lie behind the statute.
Notice that placing the burden on the city merely to articulate its purposes and the necessity for its restrictions on liberty revealed the tenuousness of the city’s claim of power. This and the inability of the city to show the necessity of the restriction to accomplish its articulated purpose also bolstered the conclusion that the real motivation for this restriction was not the public or common good but the good of a faction of the community who disliked having a group home in their neighborhood. In other words, requiring that the city’s actions be necessary to accomplish a proper purpose revealed that the true purpose for the restriction was most likely improper. This close functional connection between necessity and propriety helps to explain why the founders used them so often in tandem.
To enforce the requirement of equal protection, the Court in Cleburne did not defer to the city’s own judgment concerning the necessity or propriety of its restriction on liberty, but instead attempted to identify and evaluate the purposes for its actions. This allowed the Court to assess whether the classification represented a means to accomplish a proper end. While Cleburne did not reject the presumption of constitutionality that gives government actions the benefit of the doubt, neither did it blindly defer to the judgment of the city as it now does when mere “liberty interests” are restricted by state and federal laws. The Presumption of Liberty would make the government articulate its purposes for a particular restriction of liberty and would also place the burden on the government to show that restricting liberty was necessary to accomplish a proper end.
To show a restriction on liberty is truly necessary, it is not enough for the government to show it is a means to accomplish a constitutionally proper purpose. The government should also have to show that it could not achieve its purpose by other means that do not so restrict the liberties of the people or by means that were less restrictive of such liberty. Courts are prepared to require this when a fundamental right, such as the right of freedom of speech, is being infringed. Requiring that the government choose the less restrictive alternative is closely related to the requirement that any restriction be “narrowly tailored” to achieve the proper purpose, or that it not be “overbroad.”
This requirement is exemplified in the case of United States v. Playboy Entertainment Group (2000).4 Congress had enacted a statute requiring either that the audio and video of sexually explicit cable channels be completely scrambled or that, where this could not be assured, their transmission be completely blocked from 6 A.M. until 10 P.M. to prevent children from viewing or hearing the programming. Most cable companies complied with the statute by restricting the times that the Playboy Channel was transmitted. The Playboy Entertainment Group challenged the statute as unnecessarily restrictive content-based legislation that violated their First Amendment right of freedom of speech.
The issue of whether the restriction was “content-based” went to its propriety. Rules specifying the time, place, and manner of all speech can be a proper regulation that does not infringe upon the rightful exercise of freedom. Their purpose is to facilitate speech and to prevent the actions of speakers from infringing the rights of other persons. Think of a group of protesters who attempt to parade up a public street during the middle of the day. The interference with automobile traffic the parade would cause has nothing to do with the message the protesters intend to convey. The same would be true of a truck with a loudspeaker in a quiet residential neighborhood.
In contrast, a content-based restriction on speech is aimed at the communication of a particular message. Speech does not ordinarily interfere with the liberty of others because of its content, and therefore content restrictions infringe upon the right of free speech unless they are adequately justified by the government.5 As the Court explained: “Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles.”6
In Playboy, the Playboy Channel was being restricted in what it could say because of what it was saying. Therefore, the Court found that imposing a restriction on the hours that the Playboy Channel could be transmitted to all cable subscribers was an infringement on the freedom of speech of the Playboy Channel, a fundamental right,7 and was improper unless justified. “It is of no moment,” wrote Justice Kennedy, “that the statute does not impose a complete prohibition. The distinction between laws burdening and laws banning speech is but a matter of degree. The Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.”8
In particular, the Court required the government to show that this restriction was truly necessary to accomplish the proper end of protecting children from viewing sexually explicit video without the consent of their parents.9 When a statute regulates the fundamental right of freedom of speech, “based on its content,” the Court explained, “it must be narrowly tailored to promote a compelling Government interest.… If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.… To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.”10
Notice that because the restriction infringes upon an enumerated liberty that has been held to be fundamental, the burden shifts to the government to show the way in which the restriction is necessary. A particular restriction on liberty is unnecessary if there is some other means of accomplishing the proper purpose that is less restrictive or does not restrict liberty at all. In Playboy, the Court found that the end could be achieved by completely blocking transmission of this channel to cable subscribers who requested the signal be blocked, and by prominently informing all cable subscribers that they could request such blocking. “Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.… [I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.”11
In Playboy, the Court applied a limited Presumption of Liberty to protect an enumerated right. “When the Government restricts speech,” wrote Justice Kennedy, citing a long line of cases, “the Government bears the burden of proving the constitutionality of its actions.”12 Because a less restrictive alternative existed, the government failed to show that its restriction on liberty was truly necessary. “When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government’s obligation to prove that the alternative will be ineffective to achieve its goals. The Government has not met that burden here.”13
The Court went on to justify this presumption owing to the importance of the liberty in question, not because this liberty will always be exercised wisely. “What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”14 What I am calling a Presumption of Liberty is needed to protect speech because, “were we to give the Government the benefit of the doubt when it attempted to restrict speech, we would risk leaving regulations in place that sought to shape our unique personalities or to silence dissenting ideas. When First Amendment compliance is the point to be proved, the risk of non-persuasion—operative in all trials—must rest with the Government, not with the citizen.”15 In a nice summary of the Presumption of Liberty, the Court stated that, unless the government can show that the restriction was truly necessary, “the tie goes to free expression.”16
Having established this presumption in favor of free expression, the Court then reviewed the trial court’s evaluation of the evidence presented by the government that signal bleed was a problem serious enough to make its regulation necessary.
There is little hard evidence of how widespread or how serious the problem of signal bleed is. Indeed, there is no proof as to how likely any child is to view a discernible explicit image, and no proof of the duration of the bleed or the quality of the pictures or sound. To say that millions of children are subject to a risk of viewing signal bleed is one thing; to avoid articulating the true nature and extent of the risk is quite another.… The First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping as this.17
Justice Kennedy insisted that “the Government must present more than anecdote and supposition.”18 In this case, the district court found that “ ‘the Government presented no evidence on the number of households actually exposed to signal bleed and thus has not quantified the actual extent of the problem of signal bleed.’ ”19
The government also failed to offer persuasive evidence that it would be ineffective to provide notice to parents that individual blocking of sexually explicit channels was available. On this issue, as well, placing the burden on the government was crucial. When the government criticized the effectiveness of this alternative as highly speculative, Justice Kennedy responded that it “was not the District Court’s obligation, however, to predict the extent to which an improved notice scheme would improve [the statute]. It was for the Government, presented with a plausible, less restrictive alternative, to prove the alternative to be ineffective, and [its general time blocking restriction] to be the least restrictive available means.”20
My discussion of the Playboy case was not meant to endorse the Court’s suggestion that the selective blocking option was a less restrictive alternative or its conclusion that the government had failed to rebut this possibility, a conclusion challenged by Justice Breyer in his dissent. Instead, my purpose was to show how the Presumption of Liberty can be rebutted by proof that there was no less restrictive alternative, and how this sort of inquiry proceeds today in cases involving the liberty of speech. If legislation is truly necessary, one would expect the government to be able to provide proof of this beyond anecdote and speculation. Such proof is the least we can expect before we accept a government restriction of liberty as legitimate.
Moreover, Justice Breyer makes the entirely warranted point that it cannot be sufficient to find a less restrictive alternative without also evaluating the relative effectiveness of this alternative. After all, there will always be less restrictive alternatives if we include those that are much less effective or entirely ineffective in achieving a purpose that is assumed, for this analysis, to be proper. Such an evaluation of effectiveness might sometimes be a difficult one for courts to make. Nevertheless, courts do make such evaluations out of necessity, for the alternative is to defer completely to legislatures and this is objectionable on grounds of constitutional legitimacy. If courts defer entirely, legislatures are likely to skip making meaningful assessments in favor of mere conclusions, assertions, speculations, and pretexts. When this happens, the likelihood that restrictions on liberty are truly necessary markedly declines.
In the final analysis, putting the burden on legislatures, as we do in the case of free speech and other enumerated rights, helps assure that legislatures will actually evaluate the necessity and propriety of their enactments, which in the absence of such a burden they are unlikely to do. If they do engage in such an inquiry before enacting statutes, we can expect that they will be able to satisfy the demands of the Presumption of Liberty and produce evidence in support of the necessity of their measures. The Presumption of Liberty simply extends the same protection now afforded to the freedom of speech to other rightful exercises of freedom.
In this discussion of necessity, I have deliberately avoided mentioning what lawyers call the “level of scrutiny” to be applied to a statute. Typically, there are said to be three levels or degrees of scrutiny: strict, intermediate, and rational basis scrutiny. With strict scrutiny, which is used to protect “fundamental rights,” courts require that the legislature prove that it had a compelling interest for a restriction that is narrowly tailored to address that interest. As Erwin Chemerinsky explains:
Under strict scrutiny, a law will be upheld if it is necessary to achieve a compelling government purpose. In other words, the court must regard the government’s purpose as vital, as “compelling.” Also, the law must be shown to be “necessary” as means to accomplishing the end. This requires proof that the law is the least restrictive or least discriminatory alternative. If the law is not the least restrictive alternative, then it is not “necessary” to accomplish the end. Under strict scrutiny, the government has the burden of proof.21
With rational basis scrutiny, the courts accept any measure that is reasonably related to accomplish any legitimate state interest.
[T]he government’s objective only need be a goal that is legitimate for government to pursue.… The means chosen need only be a reasonable way to accomplish the objective. Under the rational basis test, the challenger of a law has the burden of proof.22
Intermediate scrutiny, unsurprisingly, lies somewhere in between. A law must be substantially related to an important governmental purpose.
[T]he government’s objective must be more than just a legitimate goal for government to pursue; the court must regard the purpose as “important.” The means chosen must be more than a reasonable way of attaining the end; the court must believe that the law is substantially related to achieving the goal.23
Legal pundits refer to strict scrutiny—the level used in the Playboy case—as “strict in theory and fatal in fact.”24 In contrast, rational basis scrutiny is almost always satisfied as the courts will accept any hypothetical reason a legislature might have had to enact a statute.25 In the 1993 case of Federal Communications Commission v. Beach Communications, Inc.,26 Justice Thomas articulated the most expansive formulation of the rational basis test:
[T]hose attacking the rationality of the legislative classification have the burden “to negative every conceivable basis which might support it,” .… Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.… In other words, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.27
Justice Stevens took issue with this standard: “In my view, this formulation sweeps too broadly, for it is difficult to imagine a legislative classification that could not be supported by a ‘reasonably conceivable state of facts.’ ”28 And he was certainly correct when he contended that “[j]udicial review under the ‘conceivable set of facts’ test is tantamount to no review at all.”29 Indeed, the Cleburne case discussed in the previous section is famous for being one of the rare cases in which a law failed to pass rational basis scrutiny, and consequently the test it applied there is sometimes referred to as “rational basis with bite.”30
One reason to avoid these categories is that a standard that no statute can pass is as hypocritical as a standard that every statute can pass.31 What is required is real or meaningful scrutiny of both the necessity and propriety of restrictions on liberty.32 Under the current approach, courts must distinguish “legitimate” from “important” from “compelling” governmental interests because they long ago abandoned the enumerated powers scheme that defined “proper,” as opposed to improper, federal purposes and the Lockean conception of the police power that defined “proper” state purposes. To preserve some judicial review, it thus fell to them to distinguish from among all the myriad “legitimate” purposes of government those that were more important than others.
In contrast, with a conception of “propriety” that is limited in the ways discussed here, once a purpose is established as a proper one, then the courts need only determine if the government has shown its restrictions on liberty to be genuinely necessary. In other words, just as the Presumption of Liberty gets courts out of the business of designating some liberties or rights as “fundamental,” it also gets courts out of the business of measuring the importance of government objectives. Applying meaningful scrutiny to the justifications and evidence offered by government on behalf of its laws may not always be easy, but a Presumption of Liberty has the practical advantage of eliminating two of the more difficult distinctions we currently call upon courts to make.
A glimmer of this approach can be seen in Playboy, when the Court noted that it “cannot be influenced … by the perception that the regulation in question is not a major one because the speech is not very important.”33 In other words, the court does not seek to distinguish “fundamental” speech from “nonfundamental” speech. The same can be said about other liberties that are not today deemed to be fundamental or “very important.” The Ninth Amendment requires that no liberty be “denied or disparaged” just because it is unenumerated, which means that all liberties are equal in the eyes of the Constitution.
Adopting a Presumption of Liberty that places the burden on government to justify its restrictions as both necessary and proper makes possible the equal protection of liberties. As Justice Stevens argued in Beach Communications when considering a legislative decision to exclude some property from regulation: “Freedom is a blessing. Regulation is sometimes necessary, but it is always burdensome. A decision not to regulate the way in which an owner chooses to enjoy the benefits of an improvement to his own property is adequately justified by a presumption in favor of freedom.”34 By now it should be apparent that to have a legitimate legal system that produces laws that bind in conscience, such a “presumption in favor of freedom” should always operate.
Some readers may be suspending their judgment of the Presumption of Liberty until they see how it would decide cases about which they may care. I think this instinct, though understandable, is unfortunate. No one’s judgment about how cases should be decided is infallible. For this reason, we cannot pick our methods of decision making solely by whether we like the results they achieve. To the contrary, we need sound methods of decision making to guide us to right results. If a legitimate legal system is one that produces laws that bind nonconsenting persons in conscience, and a Presumption of Liberty enhances the legitimacy of the legal system in a way that is consistent with its original meaning, then we should look to the Presumption of Liberty to tell us how to reach results in particular cases. We should not look to the results it provides to decide whether or not we approve of the presumption.
It is important, however, not to overstate this point. The Presumption of Liberty, like the Constitution itself, is a means to the end of achieving justice—which itself is a means to facilitating the pursuit of happiness by each person living in society with others.35 As such, these ends must be used to evaluate the means. Although there is much wisdom in saying that “the ends cannot justify the means,” this is meant to criticize attempts to justify evil means by apparently good ends. In fact, it is only by the ends that we are able to identify good or just means. As I was once told,36 “if an end cannot justify a means, what can”?
Because only ends are available to justify means, we need to evaluate means to see if they are compatible with ends we are confident are good. Imagine a compass that was never tested to see if it identified north. How could we be sure that such a compass worked at other times when we were unsure of where north was located? When a method of analysis reaches the results of which we are confident, we may better trust this method in cases where we are less sure of the good result. And we may adhere to means so tested even when we are sure they lead to undesirable ends because they have proved vital to the end of justice over the run of cases.
Nevertheless, there is a fundamental obstacle to assessing in this book the Presumption of Liberty by its application to particular cases: such an analysis depends in part on an assessment of propriety and, especially, necessity that will be highly contextual. It will depend upon the particular statutory restriction in question, the justifications offered in its behalf, and the factual claims that support these justifications. We have seen it will depend on assessment of means-ends fit and whether the means chosen were the least restrictive ones available. In short, each example requires a relatively close study of the subject at hand. I do not deny that such analysis is possible. Were that the case, the Presumption of Liberty would not be a practical construction to adopt. However, this sort of extended inquiry lies outside the scope of this book.
Still, readers will demand, perhaps not unreasonably, some examples of what they are buying into by adopting a Presumption of Liberty and it will not do to leave this entirely to their imagination. Therefore, although I insist that the merits of the Presumption of Liberty are to be assessed primarily by the justifications offered in the previous chapters of this book, in this concluding section, I discuss briefly some easy cases that reinforce the merits of this presumption. I then discuss the possible results it may reach in harder or controversial cases, results we might nonetheless embrace because of the method by which they are reached.
Assessing the merits of any constitutional construction by how it deals with easy cases presents an obvious problem: because a consensus about the results of cases exists so rarely, it is hard to call many cases “easy.” Nevertheless, as we have already seen, the Presumption of Liberty is used when statutes restrict the exercise of the natural rights of freedom of speech, freedom of assembly, freedom of the press, or the free exercise of religion. There are few who would dispute these applications of the Presumption. When these enumerated liberties are restricted, courts and commentators do not typically urge that we trust that legislators have considered these rights fully, accurately, and in good faith before they decided to restrict their exercise. No, when these rights are restricted, courts and commentators are rightly skeptical; they require that the government prove such restrictions are necessary to accomplish a proper (or “compelling”) purpose that cannot be accomplished by a less restrictive alternative. Does this not tell us something about the need for a more general Presumption of Liberty? Do legislatures become more trustworthy or reliable in their judgments simply because the liberties they are restricting are not listed in the Constitution? Hardly.
Nor do courts think them more trustworthy when certain unenumerated rights deemed “fundamental” are being restricted. As was noted in chapter 10, there are many unenumerated rights that have been recognized by courts as fundamental and therefore justifying increased scrutiny of legislation: the right to travel within the United States (which had been enumerated in the Articles of Confederation), the right to provide one’s children with religious education, the right to educate one’s children in one’s native language, the right to associate with others, the right to choose and follow a profession, the right to marry or not to marry, the right to decide whether or not to have children and how to rear them, and the right to privacy.37 Ask yourself whether these unenumerated liberties should be restricted just because a majority in the legislature, perhaps representing the view of a majority of the voters, think this is necessary and proper.
A Presumption of Liberty would protect all of these unenumerated rights without any inquiry into whether or not they are fundamental. Today, however, the legitimacy of judges protecting these rights is undercut by the fact they are unwritten and do not fall neatly within the theory of Footnote Four. Under Footnote Four these are all hard cases because they are not “express prohibitions” on Congress and judges should not be allowed to thwart the will of the majority unless so instructed explicitly by the text. With the Presumption of Liberty, in contrast, they all become easy cases.
While these unenumerated rights are hard cases for current theory, but are recognized anyway, another liberty or right that should be an easy case under current doctrine goes unrecognized nonetheless: the right to keep and bear arms. Given that it is enumerated in the Bill of Rights, it ought to fall within the Footnote Four approach to constitutional rights and be deemed a fundamental right. To date, however, courts have not applied the criteria of Footnote Four to the Second Amendment. Although it was among the paradigms of the privileges and immunities that the framers of the Fourteenth Amendment intended to protect,38 the right to keep and bear arms has also never been “incorporated” into the Due Process Clause and applied to state governments.
The Presumption of Liberty would have no trouble affording protection to this right and requiring that all restrictions on gun possession and use be justified as necessary. Moreover, any effort to deprive the law-abiding citizenry of their right to possess firearms by confiscating their weapons or banning all firearms would be improper and unconstitutional despite any argument from necessity that could be made on its behalf. Any such measure would be a prohibition and not a reasonable and necessary regulation. Only wrongful acts—acts that violate the rights of others—can properly be prohibited, as opposed to regulated, under either the national commerce power or the state police power.
This suggests a general implication of adopting the Presumption of Liberty that would also be controversial: government could not use its unenumerated police power to prohibit the possession or use of any object that, if properly used, does not pose an unreasonable risk of violating the rights of others. The fact that an item when used improperly might create such a risk cannot justify a prohibition on possession because any object can be improperly used to harm another and such a principle would, therefore, give the government the unjust power to prohibit possession of anything it wills.
Thus, the only items that are properly prohibited under the police power are those that, when used as they are supposed to be, create an unreasonable risk of harm to third persons. Weapons of mass destruction, whether or not considered an “arm”—for example, biological weapons—would clearly fall within this category and would properly be banned. Other inherently dangerous activities could be banned as well, provided the prohibition is the least restrictive alternative and reasonable regulation would not suffice. Thus, the manufacture and use of high explosives or what the common law referred to as “ultrahazardous” activities that do create a serious risk of violating the rights of others would be subject to regulation, or even removal from densely populated areas, but could not be entirely prohibited if regulations can reduce the risk to reasonable levels. (Zero risk is not an option.)
According to this analysis, virtually all current possessory crimes, such as laws that make illegal the possession by competent adults of ordinary firearms, intoxicating or therapeutic drugs, or pornographic images, are improper and unconstitutional, regardless of whether they are deemed necessary to achieve some worthwhile end.39 The mere possession of such items does not violate the rights of others; and the use of these items does not invariably violate the rights of others—although under some circumstances using some of these items could create an unreasonable risk of harm to others.
Consider the example of driving a car while under the influence of alcohol. The use of neither cars nor alcohol invariably violates the rights of others, but driving a car while using alcohol in excess raises the risk substantially. Prohibition of possession of either cars or alcohol is therefore improper, but regulations against using them at the same time are proper under the state’s police power because this use can create an unreasonable risk of violating the rights of others. Remember that proper regulations of liberty seek to prevent rights violations, though such regulations must also be shown to be necessary by the tests put forth in this chapter.
Moreover, setting the permissible level of alcohol in the blood is a matter of judgment that cannot be deduced logically from first principles. While individuals may vary in their capacities, a rule of law is probably preferable to placing discretion in the hands of law enforcement agents. Thus, assuming that restricting drunk driving is found to be a necessary and proper regulation of driving on government roads, some discretion to set the rule to govern this must rest in the legislature.
Before we leave this example, it is important to emphasize that, for drunk driving to create a risk to the rights of others, the possession of a car is as essential as the possession of alcohol. Yet we do not ordinarily ban possession of all cars because they could possibly be misused. Neither should we ban alcohol, other intoxicants, or firearms because they could be, but need not be, misused. It is only prejudice that leads to prohibitionist movements to ban these objects while letting people drive cars subject only to reasonable regulation.
Therefore, if the use of a particular item sometimes creates an unreasonable risk of harm, then these types of potentially harmful uses, rather than mere possession or all uses of these items, can be regulated. Further, the commerce in any of these goods, such as the sale of therapeutic or intoxicating drugs—including possession for purposes of commerce or sale—can properly be regulated if necessary to protect the safety of buyers or sellers (though only interstate commerce can be regulated by Congress, leaving the regulation of intrastate commerce to the states), provided that such regulations are not pretexts for prohibition.
The examples just discussed are controversial. Although some would think these results would be wrong, I do not agree. I think that combining a Presumption of Liberty with the original meaning of the Constitution in these instances is more consistent with the requirements of justice than is current doctrine. Despite what I said above about testing a theory against the results in easy cases, paradoxically, a constitutional construction may be suspect precisely because it seems never to produce bad or unjust results. Given the complexities of the world, no legal doctrine can perfectly capture the requirements of justice. Therefore, if a construction purports always to lead to “happy endings,” then it is likely so manipulable as to provide little if any guidance in difficult cases. In short, to test whether a constitutional construction is a genuine rule of law, we must ask whether it ever leads to outcomes its proponents dislike but must live with nonetheless. What objectionable outcomes do I think would result from construing the original meaning of the Constitution through a Presumption of Liberty?
The original meaning of “commerce” applies only to the trade or exchange of goods. According to the evidence surveyed in chapter 11, manufacturing and agriculture are not “commerce.” Such activities may be regulated only by state governments pursuant to their police power to prevent imposing an unreasonable risk of harm on third parties. Both manufacturing and agriculture can produce pollution of the air and water that can create an unreasonable risk of violating the rights of third parties. Such activities are well within the Lockean construction of the police power advanced in chapter 12, but air and water emissions can, and often do, cross state lines. When this occurs, state police power regulations may not be as effective in preventing these harms as federal regulations would be, yet there is no enumerated power that reaches manufacturing and agriculture. Moreover, where pollution imposes higher costs on out-of-state residents, while the industry that produces it benefits in-state businesses and residents, states have an incentive to refrain from adequately exercising their police power to prevent harmful emissions. Although interstate compacts are possible and exist today to address a variety of issues, this is a classic example of the sort of problem for which national power is the solution. Despite this, a police power to reach agriculture and manufacturing was not delegated to the national government.
We have already seen that the founders were well aware of the interconnectedness of the national economy when they chose to limit Congress to the regulation of trade between states. Nevertheless, they did not extend its regulatory power to agriculture, manufacturing or intrastate commerce. In preindustrial and sparsely settled eighteenth-century America, the founders were hardly likely to have imagined the interstate nature of emissions from these otherwise local economic activities. Given their effort to enumerate just those powers that were needed to handle genuinely national problems, it is almost certain that the founders would have granted Congress the power to handle this interstate or national aspect of manufacturing and agriculture. But lacking this foresight, this is not what they did.
Short of a constitutional amendment, can we correct by interpretation their potentially serious error while maintaining our commitment to the written Constitution? We cannot. This commitment does not permit us to alter the original meaning of the text because, sometime later, it comes to be seen, rightly or wrongly, as defective. Were we to ignore the original meaning of “commerce” to empower the regulation by Congress of harmful pollution, we would not be violating the rights retained by the people. Nevertheless, legitimating a knowing violation of the original meaning of “commerce” to reach the just or prudent outcome in this particular instance would undermine the “lock-in” feature of a written constitution. Ignoring the Constitution here where it is imperfect would create a very real danger that, in other cases, the legislature will be allowed to violate rights by means of improper laws.
Far better would it be to enact a constitutional amendment, which in this case would be easily proposed and swiftly ratified, that grants Congress the power “to regulate harmful emissions having an interstate effect.” An established practice of seeking popular approval of expanded federal powers whenever such measures are popular would have the added benefit of underscoring the limitations on congressional power in other more doubtful cases. The Eighteenth Amendment, which granted Congress the power to prohibit the manufacture and sale (but not the use) of intoxicating liquors, while entirely unjust, had the virtue of confirming that Congress lacked this and any similar power in the absence of a constitutional amendment. Although an erroneous written amendment can “lock in” an injustice in a way that judicial “amendment” cannot, adhering to this process both preserves the value of the rest of the written constitution, and more precisely defines the nature of the modification that has been enacted, even when a mistake has been made.
Another implication of the original meaning of the Commerce Clause is that Congress lacks the power it now claims to regulate the legal relationship between employers and employees. Such contracts are not themselves “commerce” and their regulation is not necessary to ensure that commerce among the states remains free and unobstructed. Nevertheless, many would consider this to be a major deficiency in the constitutional scheme.
Rather than violate original meaning to get the desired results, however, it would be much safer for the enumerated powers scheme as a whole to obtain a constitutional amendment like the ones proposed in Congress—until the New Deal Supreme Court’s misinterpretation of the commerce power made such amendments unnecessary.40 For example, Senator Edward Costigan proposed granting Congress the power “to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade, and commerce to prevent unfair methods and practices.”41 Henry Ashurst, chairman of the Senate Judiciary Committee, proposed granting Congress the power “to regulate agriculture, commerce, industry, and labor.”42
Unlike an amendment giving Congress the power to regulate interstate pollution, I would not endorse these proposals. The “minimum wage” portion of the first proposal constitutes what I believe to be an improper infringement on the fundamental natural right of freedom of contract. The second part of the Costigan proposal, like the Ashurst proposal, while consistent with the rights retained by the people, in my view shifts too much power to the national government. The national government is far less constrained than state governments by the power of exit and, therefore, far more likely to abuse this enumerated power than are states who may regulate these activities under their police power. In my view, these latter proposals are imprudent and inexpedient—like the Seventeenth Amendment, which imprudently, but not improperly, took the selection of senators out of the hands of the state legislatures.
Whether or not I am right that the first of these proposals is unjust and the second imprudent, there is still great value to requiring that they be made in writing and formally ratified. Requiring a formal written amendment would engender a public debate on the scope of any proposed expansion of federal (or state) power, a debate that would serve at least three important purposes. First, it would test the true popularity of accomplishing popular ends by means of expanding government powers. All too often this popularity is merely asserted or supported only by notoriously manipulable opinion polls. Putting the public, or publicly elected representatives, to a real choice would demonstrate this preference in a more reliable manner. Second, if ratified, there would be a written provision to interpret according to its original meaning and construe according to the principles underlying the Constitution as a whole. Courts would not be the agents of this amendment, but would be the interpreters of a written change made by a process that is functionally distinct from the legislative process. The scope of this change would be known to all and reversible only by subsequent amendment.
Perhaps most importantly, by making it more difficult to change a legitimate constitution, the requirement of formal amendment helps “lock in” that legitimate meaning and preserves it over time, thereby helping to preserve that legitimacy. Moreover, by preserving original meaning until a change is made in writing, the formal amendment process also preserves the originalist method of interpretation itself. In this way, requiring written amendments is vital not only to maintain a given original meaning, but to protect the process of originalist interpretation by which “lock in” is achieved and legitimacy enhanced. Even if an unjust or imprudent power is “locked in” by a written amendment, the originalist method of constitutional interpretation that is needed to “lock in” the other legitimate written provisions of the Constitution would be preserved. Of course, if too many improper powers are granted, then the legitimacy of the entire Constitution would be called into question and all bets are off.
1 F.C.C. v. Beach Communications, 508 U.S. 307, 320 (Justice Stevens concurring).
2 473 U.S. 432, 448 (1984) (emphasis added).
3 Ibid.
4 529 U.S. 803.
5 Restrictions on fraudulent speech can be justified as infringements upon the properly defined rights of others under certain circumstances. See Barnett, Structure of Liberty, 102–4. It is also commonly thought that defamatory speech is another exception to the claim that the content of speech does not ordinarily violate the rights of others.
6 529 U.S. 803, 812.
7 As the court observed: “As this case has been litigated, [Playboy’s programming] is not alleged to be obscene; adults have a constitutional right to view it; the Government disclaims any interest in preventing children from seeing or hearing it with the consent of their parents; and Playboy has concomitant rights under the First Amendment to transmit it. These points are undisputed” (ibid., 811). Notice that the government is disclaiming an improper purpose although, as with Cleburne, this may well have been the real purpose for the restriction on liberty. Once again, requiring a showing of necessity helps ferret out improper restrictions on liberty.
8 529 U.S. 803, 812.
9 Whether this is a “proper” end under the power of Congress to regulate commerce or trade between the states is doubtful, in which case the restriction would be considered unconstitutional without a need to reach the issue of its necessity. This possibility illustrates how limitations on powers can avoid the need to explicitly protect rights.
10 529 U.S. 803, 813.
11 Ibid., 815.
12 Ibid., 816.
13 Ibid.
14 Ibid., 818.
15 Ibid.
16 Ibid., 819.
17 Ibid.
18 Ibid., 822.
19 Ibid., 821.
20 Ibid., 823.
21 Erwin Chemerinsky, Constitutional Law: Principles and Policies (New York: Aspen, 1997), 416.
22 Ibid., 415.
23 Ibid.
24 Gerald Gunther, “Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,” Harvard Law Review 86 (1972): 8.
25 See Williamson v. Lee Optical, 348 U.S. 483 (1955).
26 508 U.S. 307 (1993).
27 Ibid., 315 (emphasis added).
28 Ibid., 323, n. 3 (Justice Stevens concurring).
29 Ibid.
30 Two more recent examples of serious rational basis scrutiny—both by Justice Kennedy—are Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 123 S. Ct. 2472 (2003).
31 For an amusing critique of these categories, see Michael Stokes Paulson, “Medium Rare Scrutiny,” Constitutional Commentary 15 (1998): 397.
32 For a proposed unified standard of review in Equal Protection cases, see Suzanne Goldberg, “Equality without Tiers,” Southern California Law Review 77 (2004).
33 529 U.S. at 826.
34 508 U.S. 320 (last emphasis added).
35 See Barnett, Structure of Liberty (chapter 1).
36 I think it was by Murray Rothbard.
37 For citations see chapter 10, 253–54.
38 See Curtis, “No State Shall Abridge.”
39 As was discussed in chapter 11, mere possession is outside the powers of Congress even under the broadest original meaning of the Commerce Clause. See 312–14. At issue here is the propriety of the exercise of the police power of states to reach mere possession.
40 See Ackerman, We the People, 2:337–40 (discussing various proposals to amend the Constitution pending in Congress).
41 S.J. Res. 3, 74th Cong., 1st sess. (January 4. 1935), 104.
42 S.J. Res 285, 74th Cong., 2d sess. (1936), 9224.