But Justice Gorsuch took not an âexpectation of privacyâ approach to the question but a property rights approach. Under common law, he said, âpossession is good title against everybody except for people with superior title.â Absent probable cause, a trespass action would be available against anyone searching the car. Thus, âby virtue of his possession,â Byrd would have a right to resist a carjacker or throw out an overstaying hitchhiker. âSo why not the government?â
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Samizdata quote of the daySamizdata Illuminatus (Arkham, Massachusetts) · Civil liberty, Law & Regulation · North American affairs · Slogans & Quotations February 1st, 2018 |
 22 comments to Samizdata quote of the day |
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A Common Law private property approach could restore some of the Bill of Rights – specifically the Forth and Fifth Amendments which been undermined by Supreme Court judgements (for example on “asset forfeiture”).
In Common Law a search of private property may not take place without a warrant from a court (a real court – not an “administrative court” which is really part of the Executive Branch), and private property may only be taken by the government it if is proved to be the result of a crime. The burden of proof is NOT on the property owner to prove that the money or goods is not from the profits of crime.
But I hear the footsteps of Laird approaching……
Follow the link to Pilon’s article at Cato, but follow the further link to Hit and Run (Reason mag blog). I’m starting to REALLY like Gorsuch.
By the way – the “link” is good (I normally ignore links, on the grounds that someone should make their case in their actual post, but I read the link in this case) – yes a Natural Law (natural justice) education is vital to understanding the Bill of Rights (and the 14th Amendment as well). A “Legal Positivist” (for example Thomas Hobbes) is utterly unfit for the role of upholding the principles of the Bill of Rights – because they do not believe in these principles.
But it can not be any old view of natural law (natural justice) – it must indeed be a specifically private property based view. One that, for example, explicitly rejects the artificial divide between economic liberty and civil liberties introduced by such thinkers as John Stuart Mill. Property understood economic liberty (in business and so on) and civil liberties ARE THE SAME THING – they are NOT “different principles”.
Although not himself a socialist (for all his love of worker cooperatives) the reasoning of J.S. Mill leads to the “liberal socialism” of, for example, “Star Trek: New Generation” where civil liberties exist (indeed flourish) in a state dominated society – as economic liberty (which is really just liberty) is dismissed as just evil “capitalism” by the “educated”.
It is this form of thinking (that dominates the education system – as well as the culture, Hollywood and so on) that Justice Gorsuch seems to be rejecting. It is too soon to know for sure – but he seems to be going back to the pre J.S. Mill (and co) “Old Whig” view that held that justly acquired property (by work – or by good luck such as inheritance) was key to liberty, that one could not have such things as civil liberties in a society where private ownership (real ownership – not just notional ownership, people being able to decide who they would trade with and who they would NOT trade with) was undermined.
The view that, for example, that a society dominated by the 13 departments of Jeremy Bentham (controlling most aspects of life) could still be “free” (still have civil liberties) is one that modern schools (and modern entertainment) takes for granted – but it is, as I HOPE Justice Gorsuch understands, a false view.
The freedom of a farmer to run his farm, or a factory owner to run his factory, or a store owner to decide who he wants (and does not want) to do business with, can not (in practice) be separated from such Civil Liberties as Freedom of Speech and Freedom of Association. The non aggression principle of the Common Law is based upon private property rights.
Excellent.
Last comment from me.
Modern “liberalism” is resolving its contradictions – but in a horrible way.
J.S. Mill argued (or rather stated – in passing in “On Liberty”) that the liberty of a businessman to run his business, to offer goods and certain prices and so on, is under a “different principle” (the principle of economics – which he, to be fair, did NOT dispute) than general civil liberty (freedom of speech and so on). Later “liberals” used this as a way of justifying their economic statism (which I do not believe J.S. Mill would have favoured) whilst still saying that they supported civil liberties. Much to the horror and disgust of “Old Whigs” like me.
However, modern “liberals” have resolved this contradiction – not (as I and others hoped) by condemning such things as government price controls as a violation of basic liberty, but by REJECTING such things a Freedom of Speech as well (hence the “Hate Speech” doctrine).
With hindsight this has been with us for a long time – for example in the United Kingdom as long ago as the 1965 Race Relations Act (which not “only” intervened in “economic matters”, trade and employment, but also tried to control the expression of opinions) – but, I must confess, I have been surprised (indeed astonished) by how easily modern “liberalism” has collapsed into Frankfurt School Marxism and French Post Modernism (which is also, disguised, Marxism – hence its stress on “power relations”, “exploitation” and “oppression”).
It is not often that things turn out worse than I expected them to (I am, after all, a depressive – I have what former ages called “melancholia”), but the rejection of Freedom of Speech by modern “liberals” has indeed surprised me. Most teachers, academics, media people, Hollywood types (and so on) have turned out to be even worse people than I thought they were.
A modern “liberal” would not “just” hate such “economic” things as the Tenth Amendment (which tries to limit government spending to the actual powers granted by the Constitution to the Congress – but which courts have subverted since the 1930s by pretending that the PURPOSE of the specific spending powers “the common defence and general welfare” is a catch-all “general welfare spending power”), they also hate the First Amendment – hence the Hate Speech doctrine.
Oh well – at least the modern left are now consistent. They are not longer the mess that is “Star Trek: New Generation” (the false idea that one can have economic collectivism and keep civil liberties) – the modern left is now frankly and openly “The Borg”.
I grow more pleased by the day with the Gorsuch appointment. I don’t understand where Alito was going with his question (and frankly, I doubt that he did, either); in context, what can “effects” mean other than personalty?
The 4th Amendment reads, in its entirety:
The “reasonable expectation of privacy” line of reasoning is a dead end; the property rights approach would seem to be a far better way of approaching the 4th jurisprudence. Gorsuch may not win this argument, but he has clearly planted a seed which might bear luscious fruit in the years to come. One can only hope.
Paul, fear not: I don’t disagree with anything you said here. And in case I haven’t previously mentioned it, I am no more a fan of John Stuart Mill than you are. I know that he is something of a cult figure among some libertarians (and he does occasionally say some libertarian-ish things), but I have little use for the man.
Then you don’t ‘get’ the internet & you TOTALLY don’t get what these quotes of the day are all about. It’s as bad as announcing you don’t turn pages on these newfangled ‘books’ on the grounds that someone should make their case on the cover or you’ll stick to good old fashion stone tablets. After all, if they were good enough for God and Moses… đ
I think when I finally understood blogging 10 years back, I’m pretty sure it was on this very site when I read “linking is the essence of blogging & it’s what makes the internet different from books” (or words to that effect). It was my eureka moment đ
Yeah it was here, but on an earlier iteration of samizdata.
@Laird
> I grow more pleased by the day with the Gorsuch appointment.
Me too. I only hope that some of the court’s older justices decide to take a well earned rest and enjoy their twilight years with their friends and family, and that the President can give us a couple more like Gorsuch. It could be the saving of America.
There is an argument to be made that Gorsuch is the best Supreme Court justice in 100 years based on his stellar performance so far.
The problem is, an increasingly leftist Court over the decades has been moving away from anchoring rights to property – which is acquired and possessed by the evil rich – to some more personal aspect that doesn’t depend on ownership. Thus, we get this made-up right based in “privacy”, which everyone can have irrespective of wealth.
It becomes an unworkable hodgepodge precisely because the framers of the Constitution saw property rights as an important value, and jettisoning that thinking into a privacy right simply leaves too many contradictions. I doubt that Gorsuch is going to attract many co-votes with these opinions – he out-Scalia’s Scalia in his originalism – but he’s doing great things merely by bringing this line of reasoning back into display and making it fit for proper discussion.
I hope he shares Scalia’s clarity in explaining his thinking. Otherwise the conventional wisdom is going to write him off as a nut.
@Janine P.
Then you donât âgetâ the internet & you TOTALLY donât get what these quotes of the day are all about.
I don’t agree at all. The “internet” by which I think you mean “the web” is not one thing, it is many things. For sure one of the strengths of the web is its ability to link and form a… web… so to speak. But that isn’t true of every part of the web. In discussion forums such as this links can be used to enhance, but there is a VERY common tactic in web debates where someone makes a claim and them says “here is the proof” and links to a 400 page document as their proof with vaguely related material, as if that is sufficient to support their case. Somehow they think that that is satisfactory, which it isn’t.
If you want to make an argument, make an argument. Summarize the link if that is what you want, but make the argument yourself. That way your case can be debated in the traditional way discussions are conducted. Linking to the aforementioned document is not a way of conveying knowledge, it is a way of stopping a discussion, a way of escaping your responsibility to make your case. It is dumping on your interlocutor the responsibility to fisk an impossibly large document that frequently doesn’t even support the claim you make.
Basically, it is cheating. So, frankly, in discussions I don’t usually read the link either. (Though I’ll agree in these QOTD it is a good idea to read the original source document.)
Fraser, yes and no. I agree that the argument should be made/summarized in the post (and I despise the sort of post which says essentially “And then there’s this” with a bare link and no hint of what it’s about; I almost never read those), but I’m one of those oddballs who likes to go to the source material. (I read footnotes, too.) I frequently take Wall Street Journal writers to task for omitting the link to a relevant statute or court decision (and they usually write back with a lame excuse that it’s the editors’ fault or some such nonsense. Sorry, that doesn’t cut it). And yes, one should absolutely read the original article of which the SQOTD is merely a snippet.
bobby b, I don’t disagree with your point; I merely hope that Gorsuch begins a movement toward true Constitutional originalism (not Saclia’s odd brand of it). We’ll see.
Laird, could you expand a little on ‘Scalia’s odd brand of it’?
No, quote of the day is exactly that. Its a quote. They serve as pointers to the source (and if you don’t follow the link you might no know what the quote is about (I doubt many people outside the USA have the slightest idea who Gorsuch is)) or as a stand alone discussion point (which is why I broadly agree with Janine but not entirely).
It depends on whether the link is in the main post or in the comments. But regardless, everyone is free to follow links or not follow them. What people should try to avoid is commenting on links they did not bother to follow. I must admit that I occasionally fail to follow this rule when the headline or the quote supplied seem to reflect the gist of the article in the link, and that can be detrimental to a constructive discussion. But, in such cases it is partially the fault of the poster for not disclosing the inconsistency upfront (not that I recall anything like that happening here).
One has to enjoy these subtle arguments in US constitutional law. In English law it would simply be “We need more successful prosecutions in car search cases so you’d better get on & withhold any defence evidence might preclude that”
I agree with Laird (Laird, February 2, 2018 at 4:02 am). The text should summarise whatever point is being made and/or at least indicate what is at the end of a link, not leave you completely hanging unless you click, like clickbait. However links can be evidence, links can be examples and illustrations, and links can be useful additions to the argument. They can also keep ‘what about’ and ‘exceptions that prove the rule’ cases from complicating the main text: my comments are often (too?) long as is. đ
As Janine P. (February 1, 2018 at 10:21 pm) notes, documenting your case with links as much as is reasonable is positively recommended to samizdata posters. That’s advice to posters not commenters, but it’s no fault in commenters to link.
Justice Gorsuch would likely agree that links in an OP ought to be followed and read in every case, and that the material found at those links should be used to help us to divine the true intent behind the OP writer’s efforts. His originalism seeks to divine the original intent of the drafters however we might find it.
Justice Scalia, of course, would have viewed links in an OP as properly providing the evidentiary foundations that keep an OP writer honest – as the proof that a quote was honestly presented, a footnote of sorts – but would disclaim any attempt to divine the “true intent” of the OP writer beyond looking at exactly what the OP writer wrote. He would say that we must only view the words chosen for inclusion in the OP standing alone and resist attempting to ferret out anyone’s “intent” behind words – that such effort gives us latitude to color the words with our own biases and interpretations while hiding behind a psychoanalysis of the OP writer. His originalism holds that we look no further than the original words as they would have been read by the voters at the time they were ratified.
Thanks Bobby, got it đ
Well, there went a solid hour’s work. I will repeat only the opening salvo:
Niall, shut up. ;>)
Other than that, agree w/ you and Laird.
. . .
Oh well…moving on…
Don’t folks know that “Original Intent” Originalism is now dead as a doornail, with “Textualism” also merely a red herring with a dead end?
No, the Holy Grail leading to Truth, Enlightenment, and Constitutional Righteousness is pretty widely agreed to be “Original Public Meaning.”
Never mind that there is very little agreement amongst the Public as to “the” meaning of important words, phrases, sentences. (Pages of examples in our own sorry era, seasoned with large doses of pepper spray, lost into the gaping maw of the Gremlin-in-the-Machine.)
. . .
Second Resurrection. If a right to “privacy,” or perhaps better a “right of privacy,” is not a poster-child of an un-enumerated right guaranteed by the Ninth Amendment,* I don’t know what is. I quote the 9A in full:
To use this right as a guarantee of a general right to have an abortion is, of course, entirely erroneous. Nevertheless, the General Public Understanding of the decision is exactly that there is such a Constitutional guarantee — speaking of “Public Meaning.”
*Yes, this statement needs to be argued for. But not here, now, by me. Actually I should think it’s pretty close to obvious to people who take the ideas of individual-sovereignty (in a political context) and also actually-existing human personhood seriously.
Addendum. Is the Right of Privacy “absolute,” across-the-board in every possible case? Of course not. No more than is Freedom of Speech, or F. of Religion. They are supposed to be guarantees of liberty, not of license to do just any old thing — like, for instance, murder.