Error Theory

For anyone who is looking for an update on the Flight 93 memorial, the Memorial Project superintendent, Joanne Hanley, asked me to write up a report that I can go over with them. Look for it within the next couple of weeks.

UPDATE: Hanley has had my report for a couple of days now, but I am not going to post here until she has had a little more time to look at it, and until I have had a chance to talk to her about it. What I can offer you now is a highly amusing thread over at TBogg's blog. He dissed my earlier analysis and I joined the comment thread, trying to get ANYONE there to acknowledge that having the central feature of a mosque (a crescent that people face into to face Mecca) as the central feature of the Flight 93 memorial is inappropriate. Nothing, out of what looks from the hit counters to be thousands of viewers. It's awesome. Check it out.

All that is just a side-note. The actual subject of this post is my recent Stanford Review article on saving privacy rights from the fiasco of errantly trying to create a right to abortion under this rubric:

Save the right to privacy

It is difficult for an originalist, or a strict constructionist, not to find a right to privacy in the Constitution. The Ninth Amendment asserts that unenumerated rights do exist, and the fact that several procedural restrictions seem designed to protect a sphere of privacy makes a right to privacy just about the most cautious application of the Ninth that can possibly be invoked. Thus to not recognize a right to privacy would be to render the Ninth entirely without effect, in violation of Chief Justice Marshall’s first principle of constitutional interpretation:

It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it. (Marbury v. Madison, 1803.)

At the same time, the most famous application of the right to privacy—to confer abortion rights—is grossly untenable. Private matters are those that do not involve harm to others. Terminating one life to reduce burdens on another is an extreme example of a behavior that most certainly does involve harm to others. It may well be that there is a moral right to abortion and that it should be protected in the Constitution (such is my own view), but there is no way in the world that such a right can fall under the heading of privacy, or can in any other way be read into the Ninth Amendment.

With conservatives gaining control of the Supreme Court, it is crucial to get this right. Conservatives are united in understanding that the Supreme Court’s 1973 invention of abortion rights was grossly unconstitutional. There is great division, however, on the right to privacy. Social conservatives tend to regard privacy rights as the same kind of whole-cloth invention as abortion rights, while libertarian conservatives fear that the social conservatives are poised, ironically, to throw the baby out with the bath water.

How freedom of contract was lost
An almost identical throwing out of the baby with the bathwater occurred seventy years ago. The Court’s first foray into the identification of unenumerated liberty rights was its pre-New Deal protection for liberty of contract (the so-called the “Lochner era”). Just as the Constitution includes provisions that seem designed to protect a sphere of privacy, so too it hints at a protected status for economic rights. Article I section 10 prohibits the states from passing laws that impair the obligation of contracts. The Fifth Amendment bars any government “taking” of property without just compensation. Since property rights depend entirely on freedom of contract (if you can’t sell your property or otherwise enter into agreements with it, your property rights are taken), this constitutional protection for property rights points to liberty of contract as a constitutional value.

Like privacy rights, economic rights fall into that rarified category of unenumerated rights which, following the guidance of the Constitution itself, should obviously be protected first, if any unenumerated rights are to be protected at all. But like the Brennan Court with abortion rights, once the Lochner Court started locating enunemerated economic liberty rights, it quickly went power-mad, using liberty of contract to protect what was clearly not a matter of liberty of contract, striking down child-labor laws when liberty of contract only applies between consenting adults. The idea that society was not to treat children as minors was an outrage, akin to trying to fit abortion under the heading of privacy.

The political winds at that time were blowing to the left. When the Great Depression hit, Franklin Delano Roosevelt and his New Deal Democrats came to power. This was a group of people, shot through with communists, who all believed that the Great Depression was the collapse of capitalism predicted by the communists. (Vice President Henry Wallace was a small “c” communist who later founded the soviet-backed Progressive Party. Many other top New Dealers, like Alger Hiss at State, Duncan Lee at the OSS and Harry Dexter White at Treasury were capital “C” Communists, actual Soviet agents in the Roosevelt administration.)

If the United States was to compete, these New Dealers believed, capitalism had to go: we needed centralized control of the economy, which was impossible so long as freedom of contract was protected. The earlier striking down of child labor laws was the nominal outrage, but when the Supremes overturned this perversion of liberty of contract, they took the opportunity to throw out all protection for genuine liberty of contract at the same time. The anti-capitalists won, with unabated consequences today. Consider just one example.

Why we have no vaccine industry
The tort revolution of the 60’s made it impossible for anyone to sign a binding release of liability. This is for your own protection, you see. It is assumed that you are not competent to make such a decision, and the Supreme Court no longer insists otherwise. But for products like vaccines, which are a very good gamble for everyone, even though they once in a while pay off very negatively for someone, the net benefits are available only if users sign a binding release of liability.

So here we are, entering the age of bio-terrorism, and the vaccine industry that would otherwise be racing ahead in the fashion of the computer industry now depends entirely on government and academia. Instead of a cure for the common cold (compared to which avian-flu would be child’s play) we have a tiny socialist backwater, all because the New-Deal court threw the liberty-of-contract baby out with the non-liberty-of-contract bathwater.

We are poised to make the same mistake with privacy rights. If the misuse of privacy to protect abortion causes privacy rights to be thrown out, the loss of privacy rights will likely be as permanent as the loss of economic liberty has been, and just as devastating, in its own uncountable ways. Technology for government snooping is advancing at a fantastic rate and the terrorist threat insures that we will be using it. This is no time to be throwing away all distinction between what is legitimately the government’s business and what is not.

Substantive due process
Does the fact that both times the Supreme Court managed to identify unenumerated rights it quickly abused the power prove that it should eschew the practice? It looks bad, but the real problem is with how the Court has gone about locating unenumerated rights. Its mistake has been to pretend that it is not locating unenumerated rights at all, but is divining actual enumerated rights that were just enumerated in very hidden form.

Neither the Court’s foray into economic rights, nor its foray into privacy rights, invoked the Ninth Amendment. The 9th gets a single mention in Justice Goldberg’s concurring opinion in Griswold v. Connecticut (a seminal privacy rights case) then never again. Instead, the Court has tried to locate unenumerated protections for liberty in the due process clause of the Fourth Amendment: that no one shall be “deprived of life, liberty or property without due process of law.”

By the meaning of words, this phrase obviously places no restriction on what liberties can be deprived through due process of law. Were the child-labor laws not duly enacted? Were laws restricting abortion not duly enacted? To pretend that “process” refers to substance, instead of to process, founds the entire enterprise on dishonesty. Thus “substantive due process,” whether protecting Lochner’s economic rights or Griswold’s privacy rights, has become a watch-word for Judicial usurpation of democratic prerogatives. It is a blatant perversion of the plain language of the Constitution.

It is no wonder that economic rights and privacy rights founded on this dishonesty were rapidly extended to matters that did not involve economic liberty or privacy. As J.R. Ewing put it: “once you give up integrity, the rest is easy.” Once the Court started having to avert its eyes from the truth of its own methods, there was no way it could arrive at properly limited results.

The Ninth Amendment
In contrast to the inherently unregulated nature of “substantive due process,” locating unenumerated rights where the Constitution locates them—in the Ninth Amendment—yields a very clear tension. Some unenumerated rights have to be recognized as protected rights, or the Ninth is without effect, violating the first principle of constitutional interpretation. On the other hand, every recognition of unenumerated rights does violence to other parts of the Constitution. In the right circumstance, any two parts of the Constitution can conflict. Unenumerated rights could conflict with enumerated ones, and they will certainly conflict with the enumerated powers that are granted to majority rule. Thus unenumerated protections must be located very cautiously, protecting what unenumerated rights must be protected (given that some must be), but withdrawing protection as soon as the logic behind a protection becomes tenuous.

When cautious analysis finds that the Constitution does point to some particular unenumerated right, protection for this right can be accommodated within the family of balancing tests that that the Court has developed for striking down laws that infringe the Constitution. Instead of the “strict scrutiny” that is applied when a law infringes an enumerated right, laws that infringe on Ninth Amendment rights could receive an intermediate level of scrutiny, such as the Court’s “closely drawn scrutiny” standard. [I have a post on the Court's different constitutional balancing tests, how they have been abused, and how they can be used legitimately, here.]

Judicial originalism and judicial activism are not opposites. To be an originalist requires that a justice be at least in some degree a Ninth Amendment activist. The Court has already found the two tenable pillars of this approach: economic liberty rights and rights to privacy. If it will only resist stretching these concepts beyond their internal meanings, these pillars can strengthen the whole immensely. They are in the Constitution. They need to be in our constitutional interpretation.

Originally published in The Stanford Review, December 10th, 2005. Subscribe to the Review's online edition here.

Glenn Reynolds linked a couple of posts about men's parental choice rights. Jason Smith's is pretty thorough, looking at the extreme legal asymmetry both between men's and women's parental rights and between men's and women's parental responsibilities. Reynolds himself had a post questioning these asymmetries within marriage:

The problem here is that you can say "my body, my choice" -- but when you say, "my body, my choice but our responsibility," well, it loses some of its punch.

Many moons ago, I wrote a column about how the law imposes the same child-support responsibilities on men whether or not they get married and how this screws up a woman's incentives to behave responsibly. If a woman is going to have a baby without getting married, the law should provide an incentive for her to put the baby up for adoption.

This goes so far back even The Wayback Machine dumped it. From The Stanford Review, 10/12/1995:

Are feminists really pro-choice?

I could hardly believe my ears. Was this really the same woman friend who for years had been adamantly pro-choice? Where she used to insist that to force a woman to carry a child to term was an unconstitutional slavery, she now was now insisting that unintended pregnancy warranted a lifetime of slavery. Not only was one to have no right to terminate a pregnancy, but one was then to be forced to spend one's life either rearing the unwanted child or paying for it to be reared.

Being solidly pro-choice myself, I struggled against the enormity of this switch. "Even if precautions were taken to avoid pregnancy in the first place?" I asked. "They obviously weren't good enough" bounced back the brick wall. "Even if someone wants to adopt the baby?" I asked her. She was implacable. "Can anything relieve the obligations to support the child through adulthood, even though one is denied any choice about whether to continue the pregnancy?" "Absolutely nothing" she asserted with a deadly seriousness I have hardly heard in her voice before.

Shocking business. But you can get the exact same answers from almost any "pro-choice" woman. Just specify that you are talking about what the father's obligations, and no choice, with full responsibilities, is not just the feminist position, it is the law in every state of the union. Watch out guys. Do not be lulled in to thinking that your "liberal" girlfriend's attitudes towards sex make pre-marital sex risk-less for you. Feminism is only interested in sex being as risk free as possible for women, and that means shifting as much of the risk as possible onto you.

Hand in hand with the drive to secure a woman's right to choose whether to have an abortion, there has been a desperate insistence that whether the father wanted to get the mother pregnant or wanted her to keep the child is of no relevance to the extent of his obligations. His body, his labor, his hopes for family in the future, are all confiscated over the exact same unintended pregnancy for which our constitutional process has decided that women must not be forced to sacrifice anything.

The newspapers publish a steady drumbeat of reports deploring the high percentage of "deadbeat dads" and insisting that we crack down. But the numbers show that men who had children within marriage, men who chose to become fathers, have extremely high compliance rates. They continue to support their children and their ex-wives, without the benefit of these women's love or labor. The so-called "deadbeats" are almost entirely men who fathered children out of wedlock, and their official numbers are inflated by the fact that every welfare mother is required to list a father who automatically goes into the statistics as a deadbeat.

Of course attacking "deadbeat dads" is a political steamroller. Who can defend them when the label "deadbeat" begs the question of whether the obligations they face are just. But the only way to substantially improve the rates of compliance is to go after the only group that has low rates of compliance, and so the political steamroller becomes a war to confiscate the livelihoods of men who never consented to become fathers and force them to support women who did have a choice and chose to have children out of wedlock.

To get both justice and effective incentives it is necessary to attach obligations to choice, or consent. Throughout the world consent to responsibility for each other's choices comes in the form of wedding vows. Thus the obvious resolution is to let women to be free to choose in any case, but have the support that fathers are obligated to provide fall sharply for children born outside of marriage. This would provide the right incentives for women to choose responsibly and bear children within marriage or not at all.

The feminists want choice without responsibility. They want irresponsible behavior to be supported the same as responsible behavior. That is unfair to those who are being forced to provide support and it provides the wrong incentives for women, encouraging irresponsible childbearing.

The only real question is how much less than a married father's parental obligation an unmarried father should be forced to bear. If he bears no obligation that gives him no external incentive to do his part to avoid irresponsible reproduction. Half might be the best compromise for an already compromised situation, leaving strong incentives for both would be fathers and mothers not to conceive or bear children outside of marriage.

Half of a divorced father's child support payments is still a tremendous obligation, considering that, for women, most people judge it a tyrannical wrong to impose any obligation to become a parent. But there is a baby involved, whose mother has already proven herself irresponsible by having a child out of wedlock. The strength of that need calls for splitting the incentive equally between the man and the woman.

I think this analysis still applies. I am still pro-choice (while rejecting that abortion rights can be found in the Constitution), and I still think that responsibility has to be allocated so as to promote responsible behavior.

Where my views have deepened is on adoption. I have come to regard it as a sign of profound societal sickness that so many young women who are not ready to raise a child choose to abort their accidental pregnancies instead of having their babies and putting them up for adoption. We know the statistics. Most women in our society end up having fewer children than they want. Many many of the high school and college girls who have abortions will end up regretting it. Instead of being childless at 35, they could know they have a child out there, raised by loving parents nearly to adulthood! The sickness, at least as I see it, isn't that abortion is murder. It is that nobody seems to be thinking the decision through, or they wouldn't all be having abortions that half of them will regret.

"All" is hardly an exaggeration, at least at elite institutions like Stanford. "How come none of the pregnant Stanford girls are having their babies and putting them up for adoption?" I asked in a more recent Review article. The feminists couldn't even understand my questions. Every letter thought I was attacking a woman's right to choose, when I was asking why, when women have the power of choice, they aren't making the choices what would make them happy.

Dang girl. You have a chance to buy Microsoft at the IPO. You don't have to do anything. Just let it grow, and in twenty years you'll be rich. That almost no one, at least from the elite culture, is taking up that offer, shows that that elite culture is not pro-choice, but is pro-abortion, pressuring girls into having abortions that many or most will regret. That is an evil thing, and the results are a tragedy.

Dhimmi Watch is taking nominations for 2005's most egregious instances of dhimmitude (infidel submission to Islamic demands). One prize will go to the most shameful American act of dhimmitude and one will go to the most shameless French, I mean international, act of dhimmitude.

What a great way to bring some focused heat, and what better place to focus that heat than on the phony "redesign" of terrorist-worshipping Crescent-of-Embrace Flight 93 memorial. In September, outrage over the crescent shape of the memorial, and its orientation almost precisely on Mecca, forced the Memorial Project to withdraw the plan. What did the Project members do? They sent the plan back to architect Paul Murdoch and his colleagues for another go. The hijackers, caught by gate security, were told to back outside and try to sneak through again.

Which is exactly what they did. All the features that turned the original Crescent of Embrace an Islamo-fascist shrine remain completely intact. For those who have not been following my posts, a brief recap:

The features that defined the tips of the original large crescent of red maple trees (and hence the orientation of the crescent on Mecca) are still in place exactly as before. Only a few trees are added to blend the crescent into the background. The Tower of Voices section of the memorial is still an Islamic prayer-time sundial, equipped with its own alignment precisely towards Mecca, which believers can reference when prayer time arrives. There are still 44 translucent blocks on the flight path to death, exceeding the forty inscribed with the names of our murdered heroes by the number of their murderers. Three of these blocks are in a separate section of upper memorial wall, sitting precisely on the bisector of the huge red maple crescent, precisely in the position of the star on an Islamic flag. You don't even want to know where the 44th block is, and what it does. But look anyway. Evil has to be faced: precisely what the Memorial Project refused to do.

I was contacted on Thursday by the public relations manager for the Memorial Project. I figure a nice pile of spicy emails landed in his lap after LGF linked my exposé last week. He is a nice guy (and not just because it is his job), but utterly clueless. "Did anyone on the project check out the orientation to Mecca?" I asked him. "Well, everything faces somewhere" he answered. And what else could possibly explain the Memorial Commission allowing the intact original crescent back in? They obviously never even investigated one of the primary outrages that forced the withdrawal of the original plan.

Those entrusted to memorialize "the flight that said 'no' " are allowing the hijacking of their own vehicle to continue. They got their cell-phone calls from those on the ground and instead of saying "Let's Roll," said "I think we must have a bad connection." That leaves it to the rest of us now to say "no," and the 2005 Dhimmi Awards provide one way for us to coordinate. If you want to pitch in, drop by Dhimmi-Watch and, in a comment on this post, second the nomination of the Crescent/Bowl-of-Embrace for the American award. [UPDATE: Nominations are closed.]

No word yet from Dhimmi-watch whether the contest will be judged, or put to a vote, but the nominations are a vote of sorts, are they not? I was going to say "nes pas?" and then tell a French joke, but we can't alienate these dhimmies too much if we want to save them from themselves. Keep that in mind when it comes time let the Memorial Project members have it. We have to be hard, but we can still be compassionate. If we shame them, it is to save them from a lifetime of shame. I learn from our military. Those guys humble me every day. I know it can't be true, but it almost seems as if their anger is never misdirected. Their AIM is true, even if they don't always hit their aim, and I think that is what allows them to fight so relentlessly.

If posting a nomination does not slake your own thirst for battle, how about adding a different kind of vote? You could hop on over to Wizbang’s 2005 Weblog Awards and give this Error Theory blog a daily vote for top Wiggly Worm (or is it Flippery Fish?):


Clickable graphic.

Shameless self-promotion indeed. Normally I am guilty of shameful under-promotion, but if I can be top Flippery Fish, that will be a widely broadcast link that I can use to fight against the terrorist memorial. By that time there will be an online petition and letter writing campaign in place (MORE of a letter writing campaign I should say) and every little bit will help. (But check out the other blogs too. It is an honor just to be selected a finalist, and there are many under-appreciated worthies in the fray.)

Thanks to the boost from LGF, my exposé was the most linked new post in the blogosphere on November 30th, but attention span is one of the blogosphere's Achilles' heels. We have a realistic chance to get something going here, but it is going to take a continued push.



Oh yeah. I'm getting good at this.

Got any favorite blogs you want to throw in a plug for? Comment below. Also, Dhimmi Watch is taking nominations for Anti-Dhimmi Awards too. (Leave comment on the same post as for the Dhimmi Awards.)

And if you just have to fire off a couple of letters about the crescent travesty right now, A. M. Siriano has a letter and mailing script here. (The form is pre-filled out with his letter, or you can write your own.)

How do we get our Islamo-fascist enemy to keep throwing resources into a battle that it has already lost and where it is rapidly being destroyed both militarily and politically? Pretend we are losing:

Most U.S. troops will leave Iraq within a year because the Army is "broken, worn out" and "living hand to mouth," Rep. John Murtha told a civic group.

This is my theory about President Bush's delayed push-back against Democrat and MSM defeatism on Iraq. Defeatism encourages the Islamo-fascists to keep fighting in Iraq, where the only thing they can possibly accomplish is to make the Iraqi people hate them even more. Not only are the Islamofascists getting shredded, but the political price they are paying is crucial to our ultimate aims.

It has long since been inevitable that Iraq will soon enough be democratic, and that it will soon enough be fully capable of annihilating those elements that do not submit to democracy. The one battle that still has (or had) an uncertain outcome is the political one. By continuing to fight, the Islamo-fascists are handing this victory to us too. Blowing up random Iraqis is giving intolerant Islam the worst possible name, and destroying any possibility that the Islamo-fascists will be able to compete politically.

Only when Democrat/MSM defeatism actually managed to convince a majority of Americans that we are losing in a theater where we have already won (and where continued fighting can only ehnance our gains) did President Bush start trying to reign it in. As far as he could afford to, it seems, he let the Democrats dupe al Qaeda.

Now the Democrat response to his push-back is playing into the President's hands as well. To maintain their defeatism in the face of his optimism, they are having to ramp their defeatism up, clearly branding themselves, not just as pessimistic, but as desperate to surrender. The Democrats are more desperate for an American defeat in Iraq than al Qaeda is, and it couldn't be more obvious. Why cut and run immediately? Because in another six months it will be clear to EVERYONE that the war has already been won. Having committed to the defeatism strategy, Democrats are set up to be highly embarassed by victory. Not only will it be a victory for Bush, but it will be a victory that Democrats resisted all the way. Hence the last gasp push for a quick surrender.

This ramped-up flurry of defeatism is a fantastic development. The Democrats are still giving al Qaeda hope, which will only deepen al Qaeda's defeat in Iraq, and at the same time they are utterly destroying themselves. Wahooo! It's the charge of the Light Brigade!

House Minority Leader Nancy Pelosi clarifies: yes she does back Murtha's call for immediate withdrawal.

Powerline dissects AP's attempt to bury the substance of the President's plan-for-victory speech.

Bill Hobbes catches the L.A. Times repeating the criticisms that the President's speech was addressing, without reporting the President's answer to those criticisms, when that was the subject of the speech they were supposedly reporting on!

I caught AP doing the same thing with a different Bush speech three weeks ago.

Here are Judy Woodruff and friends baiting the flytrap in September. Judy describes how she and her colleagues are using American deaths in Iraq to attack the war effort:

...we were just sitting here saying, if it hadn't been for Katrina, the numbers on--the deaths in Iraq would have been all in the headlines the last week.

She is sustained by the steady work being done by her allies in Iraq, just as they are heartened by her efforts. The symmetry is perfect. Each is encouraging the other onwards to destruction.

Cannon to right of them,
Cannon to left of them...

But they don't give up. As long as the Democrats have breath in their bodies, they will keep on duping al Qaeda with false hopes, and the terror bombers will keep duping the Democrats with false hopes. Thank you Democrats. Tis truly a noble cause in which to sacrifice your political futures.