Law Conference Report

 Posted by on 14 March 2006 at 6:38 pm  Uncategorized
Mar 142006

I’m very pleased to report that Front Range Objectivism’s Weekend Conference on Law, Individual Rights and the Judicial System was a thoroughly delightful experience, just as I expected. The lectures were very good, each conveying an unexpected wealth of new ideas and information. The conference was run very smoothly, thanks to Lin Zinser’s excellent organizational skills. I also really enjoyed the time spent with Don Watkins, David Rehm, and Greg Perkins.

For the sake of those who were not present, let me offer from brief comments on each lecturer. (Although I took reasonably good notes, I can’t guarantee that I’ve not made some error in presenting the ideas of the speaker. So take what I’ve said with a grain of salt.)

Tara Smith gave an excellent lecture on “Why Originalism Won’t Die: Common Mistakes in Competing Theories of Judicial Interpretation.” A few weeks before the conference, I re-listened to her OCON lecture “How “Activist” Should Judges Be?: Objectivity in Judicial Decisions.” Although the two lectures concerned the same basic topic, the OCON lecture offered a more sweeping overview, whereas the FRO lecture offered a much more detailed examination and in-depth critique of the reigning theory of judicial interpretation today, namely originalism. She particularly focused on demolishing its claim to objectivity — and she did that quite effectively by means of the Objectivist theory of concepts.

So, much to my delight, the FRO lecture was definitely not just a rehash of the OCON lecture. I mention that in the hopes that a recording will be offered for sale, in that both lectures are well-worth buying. In any case, I know that Tara is working on publishing it as a law review article.

Dana Berliner spoke about her fight against arbitrary government seizure of private property for private developers as one of the Institute for Justice’s litigators in the Kelo eminent domain case. Since I have some reservations about supporting IJ, I was very impressed by her thoughtful approach to working within the very messy state current legal precedents. In arguing the Kelo case, she (and IJ generally) was careful to avoid endorsing the bad premises of various awful but well-entrenched precedents, even when working within those precedents. She repeatedly emphasized a very important point: that mere parchment cannot protect our rights. Supreme Courts have repeatedly handed down awful decisions time and time again, even when the language in the Constitution is clear and unambiguous. That’s why we need a rational culture to preserve our liberty, particularly a deeply entrenched respect for individual rights.

Ms. Berliner was also clearly devastated by the outcome of the Kelo decision, precisely because IJ chose a case that would have such a broad application. However, she was also very heartened and hopeful by the resulting furor over the decision. She reported that 46 states are working on passing more restrictive amendments and/or laws about eminent domain than found in the Kelo decision! Emminent domain is definitely a critically hot issue today — and defenders of individual rights have a great opportunity to strengthen government protection of property rights by capitalizing on the public fury over Kelo.

Eric Daniels gave two excellent lectures on the history of the unenumerated rights in the 9th and 14th Amendments, almost all of which was unknown to me. In particular, I had no inkling of the conflict between the doctrine of unenumerated rights and that of the police powers of the late 1800s and early 1900s. (The police power is the power of the states to regulate anything for the sake of promoting the health, welfare, safety, and morals of people. Even in the founding period of the US, it was widely assumed to be a legitimate power of the states, albeit not of the federal government.) As usual, Eric’s command of that historical material was awe-inspiring.

At the end of his second lecture, Eric offered some interesting suggestions for better protecting currently-unenumerated rights. He said that the relationship between the rights must be made more clear, particularly that rights are an integrated whole, that they do not conflict, that they are all derivatives of the right to life. Physical force must understood to be the only means of violating rights. Government power must be strictly limited — and that must be recognized as a positive good. The fundamental rights must be more clearly articulated, as opposed to the grab-bag of rights listed in the Bill of Rights. A clear declaration of the nature of rights and purpose of government should be included in the Constitution, perhaps as a preamble. The most fundamental change must be a moral change in the culture, particularly the acceptance of self-interest as the only foundation of ethics, of capitalism as moral, and so on.

Amy Peikoff gave two very interesting lectures on the supposed right to privacy, the subject of her philosophy dissertation. She examined the origin of the claim that privacy is a fundamental right in and of itself worthy of constitutional protection — and the subsequent and ongoing debates about it. (That part of the lecture was a bit difficult to follow, unfortunately.) Then she examined whether the right to privacy is a legitimate right at all. Amy’s view is that it is not. Here’s why:

  • Privacy is a good–like food, music, or love. So while we have the right to take the actions required to secure our privacy via judicious use of our property and voluntary contracts with others, we have no direct right to privacy per se. (Amy has some interesting ideas about “virtual trespass” upon which Paul might blog.) Also, rights are freedoms to act in pursuit of the values required for life. If privacy were a right, then the mere act of being watched would have to necessarily interfere with those actions, but that’s not true. (In fact, the right to privacy is based upon a Kantian appeal to the dignity of the human person, not upon a Lockean theory of rights.)

  • The right to privacy is non-objective. The claim that some information is private (or that some observation is an intrusion) is a value judgment, often substantially dependent upon the individual’s personal preferences. In contrast, the law should just concern factual, perceptual judgments about whether force was initiated or not. (That lack of objectivity is also a basic problem with taxing “luxury” goods or banning “obscenity” too.) Consequently, upholding a right to privacy means that people cannot protect their privacy to whatever degree they please, but rather must depend upon the government’s idea of a “reasonable expectation of privacy,” as set by community standards and limited by community welfare. (Collective subjectivism replaces objectivity, yet again, courtesy of Kant.)
  • Rights don’t conflict. Yet laws designed to protect privacy often undermine genuine rights to property and contract. So employers lose their right to contractually set the terms for the use of their computers by their employees when those employees are deemed to have a right to privacy shielding personal e-mail composed at and sent from the workplace from examination by the employers. Also, even the justification of genuine rights (like the right to abort a fetus) by the right to privacy diverts attention away from the genuine liberty rights at stake. And so those genuine rights are not eroded, since they are not paid due attention.

Amy did observe that our government doesn’t currently protect the our genuine rights to liberty, property, contract, and so on. So we should worry that demolishing the right to privacy in the context of our present legal system would mean giving up some protection of genuine rights, most obviously the right to abortion. However, Amy’s purpose was not to claim that we should be advocating the elimination of the right to privacy right now, but rather than a proper political system would not appeal to a false right like the right to privacy. Also, we should advocate particular rights like the right to abortion on proper grounds, i.e. right to liberty, not privacy. Amy is also working on publishing this work on privacy as a law review article.

In the panel discussion, perhaps the most interesting point raised concerned the extent of the danger posed by the reversal of Roe v. Wade. Institute for Justice lawyer Steve Simpson said that such a decision would not merely throw the abortion issue back to the states, but could open the door to a federal statute banning abortion. Also, I should mention that I was very impressed with the integration between all the talks: references to ideas from prior talks were constantly flying about in delightful ways.

Overall, I was dismayed to learn just how much Kantianism has infected American jurisprudence, not just via the appeal to human dignity underlying the right to privacy, but also in the now-standard idea that the government may do almost anything, so long as it claims to intend some good. (That’s the current state of the law with respect to eminent domain.) For more on that sordid topic of Kantian jurisprudence, I’m delighted to recommend Amy Peikoff’s very good course Louis D. Brandeis: Altruism With Integrity and Its Consequences. (I listened to it just a few days after the law conference.) Although that’s not the main topic of the lectures, she discusses Brandeis’ Kantian altruism — and the disastrous effects of his very effective implementation thereof in our legal system.

Overall, my hearty congratulations to Lin Zinser for producing such a fantastic event!

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