BULLETIN
#34 Winter 2002

l RIGHTS AND THE CONSTITUTION: THE NINTH AMENDMENT
     Part 2: Treatment of Rights in the Supreme Court
l COPYRIGHTING THE LAW

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RIGHTS AND THE CONSTITUTION
The Ninth Amendment
Part 2: Treatment of Rights in the Supreme Court

By Stephen Plafker

In the first part of this article, I gave a brief history of the United States Constitution and its Bill of Rights. I concluded: "Thus, it is clear that the Constitution was designed to advance the sole purpose of government: 'to secure . . . rights.' And that no rights should be omitted "

In this part, I discuss the deterioration of the way courts have treated rights over the years. In the third part, I show that this deterioration was almost inevitable without a clear, logical theory of rights and that the only solution lies in Objectivist moral and political theory.

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The United States Constitution is based on a natural rights theory of government. Under this theory, individuals have rights and governments exist solely to protect these rights.¹ In a natural rights government, there is a law (called natural law) higher than any legislative enactment. Any rule against this natural law is void.

This is opposed to a positive law theory under which whatever law is enacted is proper. Under a positive law government, only a procedural defect can invalidate a law.²

The natural rights principle was applied in early colonial America. In 1657, for example, a Massachusetts judge used it to invalidate a tax to be used to provide a home to a minister. "Such a tax, said the magistrate, 'to take from Peter and give it to Paul,' is against fundamental law."³ The natural rights principle was the basis of the American Revolution. It was stated in 1761 in the famous argument of James Otis in the Writs of Assistance Case:

     As to acts of Parliament. An act against the Constitution is void: an act against
     natural Equity is void: . . . The Executive Courts must pass such Acts into disuse.⁴

In the early years of the United States, courts commonly referred to natural rights.⁵ The following, from a 1798 the Supreme Court decision, is typical:

     There are acts which the Federal, or State, Legislature cannot do, without
     exceeding their authority. There are certain vital principles in our free
     Republican governments, which will determine and over-rule an apparent
     and flagrant abuse of legislative power; as to authorize manifest injustice by
     positive law; or to take away that security for personal liberty, or private
     property, for the protection whereof the government was established.

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     An act of the Legislature (for I cannot call it a law) contrary to the great first
     principles of the social compact, cannot be considered a rightful exercise
     of legislative authority.⁶

The question is, what are the "great first principles of the social compact?" No one in the early years was able to give a definition. The best effort was made in 1823 by Bushrod Washington, a Supreme Court justice and nephew of George Washington:

     What these fundamental principles are, it would perhaps be more tedious than
     difficult to enumerate. They may, however, be all comprehended under the
     following general heads: Protection by the government; the enjoyment of
     life and liberty, with the right to acquire and possess property of every kind,
     and to pursue and obtain happiness and safety; subject nevertheless to such
     restraints as the government may justly prescribe for the general good of the
     whole. The right of a citizen of one state to pass through, or to reside in any
     other state, for purposes of trade, agriculture, professional pursuits, or otherwise;
     to claim the writ of habeas corpus, to institute and maintain actions of any kind
     in the courts of the state; to take, hold and dispose of property, either real or
     personal; and an exemption from higher taxes or impositions than are paid by
     the other citizens of the state; . . . to which may be added, the elective franchise,
     as regulated and established by the laws of the state in which it is to be exercised.⁷

Any theory of rights which uses an enumeration as a definition will, in the long term, fail. Such a theory is in special trouble if it includes expressions like "subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole." The theory contains (to borrow a leftist term) the seeds of its own destruction.

First slowly and in small ways, then faster and in larger ways, the Supreme Court chipped away at proper principles. In one of the ironies of history, the elimination of slavery coincided with an increasing reluctance of the Supreme Court to use the language of natural rights, especially in the economic area. An early chip came in 1873 when the Supreme Court refused to invalidate a state-created monopoly.8 Four years later, the Court opened the door to widespread regulation of business:

     Property does become clothed with a public interest when used in a manner to make
     it of public consequence and affect the community at large. When, therefore, one devotes      his property to a use in which the public has an interest, he, in effect, grants to the
     public an interest in that use, and must submit to be controlled by the public for the      common good, to the extent of the interest he has thus created. He may withdraw
     his grant by discontinuing the use, but, so long as he maintains the use, he must
     submit to the control.⁹

In a famous case, Lochner v. New York,¹⁰ the different attitudes toward economic freedom were clearly stated. In a 5-4 decision, the Court held unconstitutional a statute setting maximum hours

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for workers in bakeries. The basis of the decision was that the statute was "the substantial equivalent of an enactment that 'no employee shall contract or agree to work,' more than ten hours per day," and therefore "interferes with the right of contract between the employer and employees," which is "part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution."

The opposite position was taken in two dissenting opinions. The first, by Justice Harlan, stated general principles that virtually gave the states carte blanche in economic regulation:

     Regulations respecting the pursuit of a lawful trade or business . . . are questions
     for the state to determine, . . . and, unless the regulations are so utterly unreasonable
     and extravagant in their nature and purpose that the property and personal rights
     of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with
     or destroyed without due process of law, they do not extend beyond the power
     of the state to pass . . . .¹¹

The second dissent, by Justice Holmes, was explicit in its denial of natural economic rights:

     It is settled by various decisions of this court that state constitutions and state
     laws may regulate life in many ways which we as legislators might think as
     injudicious, or if you like as tyrannical, as this, and which, equally with this,
     interfere with the liberty to contract. Sunday laws and usury laws are ancient
     examples. A more modern one is the prohibition of lotteries. 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 Postoffice, by every state or municipal
     institution which takes his money for purposes thought desirable,
     whether he likes it or not.

     . . . Some of these laws embody convictions or prejudices which judges are likely
     to share. Some may not. But a Constitution is not intended to embody a particular
     economic theory whether of paternalism and the organic relation of the citizen to
     the state or of laissez faire. It is made for people of fundamentally differing views,
     and the accident of our finding certain opinions natural and familiar, or novel,
     and even shocking, ought not to conclude our judgment upon the question
     whether statutes embodying them conflict with the Constitution of the United States.

     General propositions do not decide concrete cases. [!!] The decision will

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     depend on a judgment or intuition more subtle than any articulate major premise.¹²

By the time Lochner was decided, prior decisions supported the dissenters; the majority was fighting a rear-guard battle. The final stroke came during the New Deal period. In 1934, the Court stated:

     The court has repeatedly sustained curtailment of enjoyment of private property
     in the public interest. The owner's rights may be subordinated to the needs of
     other private owners whose pursuits are vital to the paramount interests of
     the community. The state may control the use of property in various ways;
     may prohibit advertising billboards except of a prescribed size and location,
     or their use for certain kinds of advertising; may in certain circumstances
     authorize encroachments by party walls in cities; may fix the height of buildings,
     the character of materials, and methods of construction, the adjoining area
     which must be left open, and may exclude from residential sections offensive
     trades, industries and structures likely injuriously to affect the public health
     or safety; or may establish zones within which certain types of buildings or
     businesses are permitted and others excluded. . . .

     Laws passed for the suppression of immorality, in the interest of health, to secure
     fair trade practices, and to safeguard the interests of depositors in banks, have
     been found consistent with due process. These measures not only affected the use
     of private property, but also interfered with the right of private contract.
     Other instances are numerous where valid regulation has restricted the right of
     contract, while less directly affecting property rights.

     The Constitution does not guarantee the unrestricted privilege to engage in a
     business or to conduct it as one pleases. Certain kinds of business may be
     prohibited; and the right to conduct a business, or to pursue a calling, may
     be conditioned. Regulation of a business to prevent waste of the state's resources
     may be justified. And statutes prescribing the terms upon which those
     conducting certain businesses may contract, or imposing terms if they do
     enter into agreements, are within the state's competency.¹³

Thus, virtually any economic regulation is deemed justifiable.

The deterioration is not---cannot be---limited to property rights. Freedom of speech and of the press inevitably follow. Since 1927, the Federal Communications Commission has had the power to make rules and grant and deny licenses to radio and television stations. In doing so, it "is specifically directed to consider the demands of the public interest in the course of granting licenses, renewing them, and modifying them . . . . This mandate to the FCC to assure that broadcasters operate in the public interest is a broad one, a power 'not niggardly but expansive.'"¹⁴

Today, courts violate property rights without blinking. In Hawaii Housing Authority v. Midkiff¹⁵ a unanimous Supreme Court approved a law allowing a state agency, in essence, to force an owner of "too much" land to lease or sell it to non-owners---at a "fair" price. Forcing Peter to sell to Paul is in fact a robbery of Peter. A modern property owner might, at least in some respects, envy his 1657 Massachusetts predecessor.

In the third part of this article, we will see that the failure to properly understand rights led

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modern judges to abandon the concept of natural rights entirely. And we will discuss what is necessary to restore the concept.
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References and Notes:
1. Ayn Rand, "The Nature of Government." Declaration of Independence: that to secure these rights, governments are instituted among men . . ."

2. The English Constitution has been said to be based on this theory: "The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds . . . this being the place where that absolute and despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms." 1 Blackstone, Commentaries on the Laws of England 156.

3. Edward S. Corwin, The "Higher Law" Background of American Constitutional Law 73 (1929). This pamphlet is a reprint of an article first published in the Harvard Law Review in 1928 and 1929.

4. Id., at 77. As John Adams said, "Then and there, the child Independence was born."

5. For reasons that will be discussed in the third part of this article, the courts were never consistent, in application or in theory. Despite the deterioration in theory described in this article, some things are now better: religious freedom for example. And freedom of speech and press is better protected today, although there are very ominous trends.

6. Chase, J. in Calder v. Bull, 3 U.S. 386, 388 (1798)

7. Corfield v. Coryell, 6 Fed.Cas. 546, 551-2 (1823). Washington is interpreting Article IV, § 2 of the Constitution: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The phrase "privileges and immunities" is a synonym for "rights." See, Harry Binswanger, "The Constitution and States' Rights", The Objectivist Forum, December 1987

8. Slaughter House Cases, 16 Wall. 36 (1873)

9. Munn v. Illinois, 94 U.S. 1 13, 126 (1877) (quoting English authorities)

10. 198 U.S. 45 (1905)

11. 198 U.S. at 66-67, quoting from Gundling v. Chicago, 177 U.S. 183, 188

12. Id. at 75

13. Nebbia v. New York, 291 U.S. 502, 525 - 529 (1934)

14. Red Lion Broadcasting Co. v. Federal Communications
Commission, 395 U.S. 367, 379-380 (1969) (citations omitted).
See Ayn Rand, "The Property Status of Airwaves" in Capitalism:
The Unknown Ideal.

15. 467 U.S. 229 (1984

COPYRIGHTING THE LAW

In the recent copyright case, Veeck v. SBCCI,¹ the Fifth Circuit Court of Appeals ruled that the author of a model code which has been enacted into law cannot prevent its publication.

A model code is a proposed law written by a private organization. Governments can adopt them directly or in modified form.² SBCCI³ is a private non-profit organization in the business of drafting model building codes for adoption by cities. SBCCI generates revenue by selling copies of the code to the public. Copies are made available to cities for adoption at no cost. Two towns in north Texas adopted the code.

Peter Veeck operates a non-commercial web site that provides information about north Texas. Veeck bought an electronic copy from SBCCI and posted it on his Internet site. In a legal action SBCCI claimed that Veeck was violating its copyright.

Does a model code lose its copyright protection by being enacted into law? If so, what protection does the author have to his intellectual property? On one hand, in order to comply with the law one must know what the law is; a copyright is, at least partially, a restriction of access to the law. On the other hand, the authors are entitled to the rights of ownership---including compensation.

The court held: "as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works

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retain their protected status."

The Ninth Circuit has ruled the opposite in a similar case involving the Medicare reimbursement coding system which is copyrighted by the AMA and must be used for all Medicare reimbursements.⁵

In an Objectivist society, this issue would rarely arise. The laws involved in these two cases, are very complex and in need of constant updating. Most of these complex laws are non-objective. Proper laws are usually simple and easily produced within the government.
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References and Notes:
1. ___ F. 3rd. ___ (5th Cir. 2002); No. 99-40632. See <sorry internet link bad> A two to one decision by a three judge panel was overturned by the court 11 to 4 sitting en banc.

2. Model codes as such are common and are proper. They are often drafted by volunteer committees and strive for completeness and uniformity. Examples are the Model Uniform Commercial Code, the Model Probate Code and the Model Penal Code.

3. SBCCI stands for Southern Building Code International, Inc. and consists of 14,500 members from government bodies, the construction industry, business and trade associations and others.

4. Veeck said his actions were motivated by a difficulty in finding a copy of the code, but it appears that the codes were available in the relevant city halls and from SBCCI at a reasonable cost. Veeck's action certainly made the code easier to find.

5. Practice Management Information Corp. v. American Medial Association, 121 F.3rd. 516, (9th Cir. 1997)

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Copyright © 2002 The Association for Objective Law. All rights reserved. The Association for Objective Law is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.