Monthly Archives: August 2006

The Right To Privacy

One of the most contentious bits of Constitutional jurisprudence in history has been the “Right to Privacy”. Some say it’s not there at all, as the word “privacy” never even appears in the document. Some say it flows out of penumbras, formed by emanations. I wish I had a clue what the heck that means. The real answer is much, much simpler, but if followed, throws the whole system on its ear. That answer flows straight out of the idea of Natural Rights, and is expressed by a portion of the Constitution that is roundly ignored, the Ninth Amendment:

Amendment IX – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Of course, without an enumeration, it is difficult to understand exactly what sort of rights are protected by the Ninth Amendment. Is a “Right to Privacy” hiding in there? How about a “Right to Polygamy”? Perhaps a “Right to Animal Sacrafice”? Who knows what we might find in there? Could this possibly have been what the Founders intended?

I think it is. The Ninth Amendment, coupled with the Tenth, the Constitutional framework of listing enumerated governmental powers, and later the inclusion of the Fourteenth Amendment, is meant to convey a very specific idea. Where the Constitution has given the government the power to act, it may act, within certain limits. Where the government does not have the power to act, the people are free to exercise their liberty without intrusion.

Perhaps it would be best to start at the beginning. The Ninth Amendment was written as a part of the Bill of Rights in general. At the time of the Founding, many suggested that we did not need a bill of rights, in that the government’s powers were limited. But James Madison, father of the Constitution, did not agree:

It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments.

Would it be right for our government, in response to the enumerated power of punishing counterfeiting of currency, to ban freedom of the press? It would not be necessary, but if Congress is both the writer of the laws and the judge of necessity, the protection against Congressional overreach is not there. The Bill of Rights is intended as a second line of defense against the evisceration of the necessary and proper clause. But there is a problem whenever you enumerate a specific bill of rights, which Madison clearly understood:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

The clause he mentions, which clearly was the precursor to the Ninth.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

It is clear that the Constitution was written with several lines of defense against giving the government wide powers. It is also clear that the constitution was written to further restrict the latitude of government’s action even when performing their enumerated powers. The Ninth Amendment was intended as one of these second lines of defense to protect individual liberties (natural rights) not expressed in the previous amendments.

Every one of those lines of defense have been breached, and the government has stopped considering most limits on its power. The Supreme Court has been complicit, and instead of acting to guard our rights, has granted the government the benefit of the doubt, or a presumption of constitutionality, to its actions. The presumption of constitutionality means that instead of requiring the government to prove that restricting our liberties is required to enforce a law is “necessary and proper” to the operation of an enumerated power, it is the citizen’s responsibility to show that the legislation encroaches upon an enumerated right in the Bill of Rights, or encroaching on one of those penumbras, formed by emanations, that the Supreme Court has deemed a “fundamental” right. The Ninth Amendment is ignored.

The Supreme Court has become the arbiter to pick and choose which rights are fundamental, and considers only those rights to be safe from government’s power. Even so, they have eviscerated some enumerated rights, by not striking down certain portions of McCain-Feingold, by holding the 2nd Amendment to be “non-incorporated” by the 14th, and in their decision to ignore private property rights against the abuse of eminent domain in Kelo. Kelo is a key example of the presumption of constitutionality, in that the Court simply take the local government’s word for the fact that the takings met the standard of “public use”.

The Right to Privacy is something that the current court has considered as an exception to the presumption of constitutionality. Due to current jurisprudence, however, to affirm the Ninth Amendment, and the reasoning behind its inception, would be affirming a much wider level of liberty and a much more narrow grant of government power than our current government recognizes. Thus, they must rest on the idea of “penumbras, formed by emanations”, resting on the first, third, fourth, fifth, ninth, and fourteenth amendments. They cannot claim that the government doesn’t have the power to make an infringement of liberty in this sense, they must craft a “new” fundamental right to protect a liberty they support. Their desire to maintain the presumption of constitutionality while still enforcing their desired social goals puts them in a very precarious position, and the house of cards that is our Constitutional jurisprudence gets one story taller.

There is another way, though. I was recently reading— a major impetus for this post, actually— Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty. In it, he argues that through the evisceration of the necessary and proper clause, the privileges and immunities clause, the interstate commerce clause, and then the Ninth Amendment, we have strayed far from the original intent of the Constitution, and have found ourselves with a toothless document filled with holes. The suggest to reverse course would be to return to the days when we presume that the government cannot infringe upon liberty UNLESS they demonstrate that to do so is both necessary (not “convenient” but necessary) and proper (in the service of an enumerated power). Instead of a presumption of constitutionality, we should return to a Presumption of Liberty.

The Founding Fathers certainly believed in a Right to Privacy, insofar as they didn’t believe the government had a legitimate purpose to be doing anything which might infringe upon it. In our current Constitutional jurisprudence, the Right to Privacy is an exception to unlimited government power. If we returned to a Presumption of Liberty, the Right to Privacy, along with a host of other rights and liberties, wouldn’t be an exception at all, it would be would be the standard.

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An Unlikely Lesson

I grew up in New Jersey, and one of the lessons I soon learned by the time I was old enough to drive a car was just how screwed-up the automobile insurance business in that state actually was. For the longest time, New Jersey ranked as one of the states that exercised the most control over how auto insurance companies could operate. Most significantly, rates were regulated tightly and subject to approval by state bureaucrats. Despite these regulations, or, rather, because of them, New Jersey consistently had the highest automobile insurance premium rates in the nation.
Several years ago, though, the political leaders in the state had an amazing idea…..why not let the market for automobile insurance work without government insurance ? The results, as even the New York Times admits, are really quite interesting:

Joseph Alfano, who works for an office supply company in Clifton, N.J., got a pleasant surprise when he renewed his car insurance this summer. The premium on his 1997 Mercury Mountaineer dropped nearly 30 percent, to $1,273 a year.

It went down almost $500,” Mr. Alfano said. “That’s significant money.”

Mr. Alfano’s good fortune is common these days in New Jersey. For the first time in decades, prices for coverage are falling in the state and insurance companies are fighting for drivers’ business. Roadside billboards cry out with special deals; radio and television are peppered with car insurance advertisements.

It is a mammoth change in a state where auto insurance has been a long-running nightmare and it puts New Jersey in line with auto insurance practices in most of the country.
More tellingly, it provides a case study in what happens when competitive forces are unleashed and markets are allowed to operate more freely. And while some drivers are worse off, the vast majority of consumers have gained from the changes.

Basically, what happened is that, starting about three years ago, New Jersey lawmakers finally began unraveling the complex regulations that governed how automobile insurance companies could do business in the state and allowed them to set their own rates and compete on their own terms.

Insurance regulators say more than 75 percent of New Jersey’s drivers are now paying less for auto insurance and that further reductions are expected.

Auto insurance prices have been declining around the country, as fewer accidents have been reported and big inroads have been made against fraudulent auto insurance claims. But nowhere are prices falling as sharply as in New Jersey. And insurance experts say that the easing of regulation in New Jersey has been by far the most important factor.

Most important among the changes that have resulted from the relaxing of the insurance regulations is an increase in competition. In the past, citizens of New Jersey suffered largely because many insurers (the most prominent of those being Geico) simply chose to stop doing business in the state rather than deal with the regulations coming out of Trenton. With those regulations gone, that’s changing:

With nearly 20 new companies doing business in New Jersey — introducing much more variation in price and service levels among insurers — nearly a third of the state’s three million drivers have switched carriers. Geico, the most successful of the new companies, said that it had signed up the drivers of more than 500,000 cars and trucks since it began operating in New Jersey two years ago.

This certainly isn’t a surprising result when one considers how things worked under the old system:

[R]egulators made it more difficult for insurers to raise rates. One consequence was that in good years insurers held off from requesting lower rates for fear that when their fortunes turned, they would not be permitted to reverse the process.

At the same time, because the rates were capped and insurers were required to provide coverage to all but the most horrendous drivers, the companies said they were often selling insurance at less than their estimated costs. The more coverage they sold, the insurers contended, the more money they lost. So they tried to keep good old customers, but avoided new ones. They often let their phones ring off the hook.

To keep rates tolerable in cities like Newark and Camden where auto accidents were more common and theft was rampant, state officials permitted insurers to compensate by increasing prices more in the suburbs. But to avoid selling to higher- risk drivers, insurers operated few agencies in the cities and set limits on how many policies agents could sell.

One of the biggest shocks I had when I moved from New Jersey to Virginia 16 years ago was the astronomical difference in auto insurance premiums. If nothing else, it made plain the true cost of government intervention in the market. The fact that it’s taken this long for the citizens of the Garden State to be liberated from auto insurance socialism is, quite honestly, a travesty.

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The Infallibility of Government

Originally posted in Feb 2005 at The Unrepentant Individual


“The government should fix that!”

“The government should pay for that!”

“How could the government let that happen?!”

All statements and questions that we frequently hear in our society. We have grown into a myth that the government is a benevolent and all-powerful force in this country. We have more faith in government to be good than Catholics have in the Pope. We trust, despite endless evidence to the contrary, that government not only can, but will come in and fix the problems that we face.

When corporations or individuals go wrong, people assume that it’s just because they’re naturally self-interested and evil. When the government does wrong, the perpetrators get a pass, because they were just acting in the peoples’ best interest. How it is that we demonize the people who have earned their positions of power, while exalting those who have simply been “elected” or “appointed” to positions of much wider power, is simply beyond me.

I’ve often asked myself why people have such faith in the government. Scott Scheule, posting at Catallarchy, in an impressively insightful write-up, posits that it is due to a sampling bias:

The only time the federal government steps in is when the States or market do something wrong. People don’t hound the government when the market is working, and citizens don’t write their Congressmen when the fifty States are doing the right thing, all in their fifty different ways. If it ain’t broke, then why subsidize it?

So, I suggest that it is only when markets and sovereign States err that the ire of people is aroused to such a level that the federal government acts.

The result of this is that the federal government develops an illusion of heroism (legitimacy?), a deus ex machina to swoop down from above to integrate schools, sue tobacco companies, protect the environment, free slaves, and all those other marvelous things you learned about in history class if you went to public school. Thousands of politicians cloak and reinforce this bias; they are rationally of course quite willing to take as much responsibility as they can for being saviors–their reelection depends on it.

For 200 years, the government has been the one stepping in, with much fanfare and hoopla. No mention has ever been made to go back ten or twenty years later, to make sure that they had solved the problem and not created any new ones. Likewise, once a government “solution” has taken hold, there is always the reminder of the initial problem brought up when the proposal is made to remove the solution.

This is made even worse by the fact that so much of government’s cost is hidden. People have a much easier time ending a benefit when they realize they’re paying way too much for it. As I mentioned in my post on tax withholding, we rarely ask ourselves how much we are truly paying for the services of government. When taxes are withheld and you get a small refund at the end of the year, tax rates and the effects of regulations are an abstraction. “The government’s money” no longer registers in your mind as having come from your own wallet.

So what’s the answer? Unfortunately, I can’t say that I know. But at least now we have begun to identify the problem. If we can convince people how badly the government is doing their job (see: IRS, immigration, postal service, Amtrak, Department of Education, Agriculture, FBI, CIA, Social Security, Medicare, etc etc), and then explain what these “services” cost (end withholding and simplify the tax code), maybe we’ll see some real change.

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Thank you, Mr. Governor

An open letter to Gov. Schwarzenegger:

Mr. Governor,

I thank you for making my life harder. By allowing a minimum wage increase, you are ensuring that my money, as well as the money of every other Californian, will buy me less. Fortunately, I don’t have to worry about much, since I’m not in the unenviable position of deciding between food, rent, and medicine. There are many in California who are in that position. You’ve just made their lives harder as well. You’ve made their food more expensive. You’ve made their medicine more expensive.

You are probably wondering how you’ve done this, aren’t you? Well, by capriciously deciding that the labor of minimum wage earners should be worth more, you’re sending ripples throughout the entire economy. You’ve forced business to pay more for the same thing. Who will bear the cost of this? Business, you say? Where is business going to get the money to pay for this? You don’t know, do you? You think that they’re just going to make less profit? As we all know from listening to the media, every business has plenty of extra profits to just spread around. Well Governor, I thought you’d be a little smarter than the second-rate socialists masquerading as our State Senators and Representitives. Apparently, you’re not.

Or, maybe you are smarter than they, and you do know that the citizens of California will end up paying for this, but you think that appeasing the left is worth the price. Either way, please open your eyes. You say you will stand up for the working people of California. Then do so. Stand up for us by not making us pay the price for feel good measures like minimum wage increases. Don’t make them pay more for food, medicine, gasoline, and everything else. You see, we are the ones who will pay this new minimum wage. Not businesses. We, the working Californians, are the reason most of the businesses here exist. They serve us because we pay them to. Now we will be paying more for their services. Can we look forward to another ten cents a gallon, another dollar per movie ticket, another quarter per loaf of bread because of this abomination? Absolutely.

The economy, as much as it can be viewed as a single entity, is a vast matrix of transactions based on worth. If you distort some of those decisions through the force of law, the people making other decisions will make them differently in reaction. The supermarket owner who has to pay employees $1.25 per hour more will raise the prices of his products to adjust, or he might fire an employee. Either way, the effects of this decision will ripple through the matrix and the whole will find a balance acceptable to those making the decisions. The force of law is not enough to overpower the judgement of millions of people acting in their own interests; it will never be.

Please, Governor, let your own judgement and your observation of reality be your guide. Rise above petty partisan games, and don’t repeat the same mistakes of your lamentable predicessor. If you can’t, we will all be worse off.

~A Concerned Californian~

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