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Historians sometimes refer to the U.S. Supreme Court’s early 20th century jurisprudence as an era of “laissez faire constitutionalism.” They are referring in particular to Lochner v. New York, the 1905 case in which the Court struck down a state law that set maximum working hours for bakery employees on the grounds that it violated the liberty secured by the Due Process Clause of the 14th Amendment, which says that no state may deprive any person of life, liberty, or property, without due process of law.

Lochner was eventually made a dead letter during the New Deal, when the Supreme Court reversed course and said that because no such conception of liberty was specifically spelled out in the Constitution, the Court would no longer offer any judicial protections for it. A state “regulation which is reasonable in relation to its subject and is adopted in the interests of the community,” the Court said in West Coast Hotel Co. v. Parrish (1937), “is due process.”

Lochner may be gone, but one of its central legacies—the idea that the 14th Amendment protects a broad conception of liberty against state regulation—does still live on. That fact was clearly illustrated yesterday when the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, a case about the legality of a Mississippi law banning abortion after 15 weeks of gestation.

“If I were to ask you what constitutional right protects the right to abortion,” Justice Clarence Thomas asked Julie Rikelman, the lawyer representing Jackson Women’s Health, “is it privacy? Is it autonomy? What would it be?”

“It’s liberty, Your Honor,” Rikelman replied. “It’s the textual protection in the Fourteenth Amendment that a state can’t deprive a person of liberty without due process of law, and the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre-viability pregnancy.” And that interpretation, she continued, stretches back “for over a hundred years in cases going back to Meyer, Griswold, Carey, Loving, Lawrence.”

“Yeah,” Thomas replied, but “all of those…just come out of Lochner, so we’ve dropped part of it.”

The Supreme Court did (unfortunately) drop Lochner. But Rikelman had a point too. One of the cases she cited was Meyer v. Nebraska (1923), in which the Court invalidated a state law that banned both public and private schools from teaching young children in a foreign language. The law was successfully challenged by a man named Robert Meyer, who taught the Bible in German at a school run by the Zion Evangelical Lutheran Congregation.

“Without doubt,” the Supreme Court said in Meyer, the 14th Amendment’s guarantee of liberty “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Among the legal authorities that the Court cited in Meyer in support of that sweepingly libertarian passage was Lochner v. New York.

Two years later, in Pierce v. Society of Sisters (1925), the Court continued the libertarian streak by striking down on 14th Amendment grounds Oregon’s Compulsory Education Act, which had forbidden parents from educating their children in private schools. “The child is not the mere creature of the state,” the Court declared.

Meyer and Pierce both remain good law today and are both squarely in the Lochner line of cases. And they are a big part of what Rikelman meant when she referenced “the right to make family decisions.” Put differently, if a state today tried to thwart the wishes of many parents by outlawing private schools, Pierce would stand fully in the way. That’s a legacy of Lochner.

Which brings us to abortion. In Griswold v. Connecticut (1965), the Supreme Court recognized an unenumerated right to privacy and said that a state law which criminalized the use of birth control violated this right. Griswold cited Meyer and Pierce in support of its judgment that married couples have a constitutional right to obtain and use contraceptive devices (“the right to make family decisions”). Roe v. Wade (1973), which recognized abortion rights, both cited and built on the Griswold decision.

In short, as Thomas indicated, there is a line running from Lochner to Roe. The expansive conception of liberty once recognized by the courts in the era of “laissez faire constitutionalism” is still at least partially identifiable today in the Supreme Court’s privacy and abortion precedents.

The post The Laissez Faire Origins of the Supreme Court's Abortion Precedents appeared first on Reason.com.

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Our beloved Reason Roundtable listeners did not hold back: per Reason tradition, they sent in questions (and one limerick) and editors Katherine Mangu-Ward, Peter Suderman, Nick Gillespie, and Matt Welch have now given their answers. This is all in the spirit of Reason‘s annual webathon, in which we try to persuade you to make a tax-deductible donation to the nonprofit foundation that publishes our work. In fact, an anonymous, generous donor offered to match the next $100,000 you give us! Or, bid now to win the first-ever Reason NFT, if that’s more your thing.

What did the editors do as soon as they were vaccinated? Which fictional characters best represent them? Are there new Reason podcast shows on the horizon? Can Peter really segue almost anything into a Marvel reference? (Spoiler: Yes.) Cocktails, American literature, relationship advice (it is cuffing season after all) and more all right here on this special video podcast. Want to not just hear but also see the collective groan in response to the phrase “2024 election”? Check out the video version here. You definitely, maybe, possibly will be a better, smarter, more interesting, and maybe freshly date-able person after consuming this podcast. So please give us some money so we can do this all again next year, okay? Okay.

Cheers and libertarian love,

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Audio production by Ian Keyser
Assistant production by Regan Taylor
Music: “Angeline,” by The Brothers Steve

The post You Asked, We Gave You Libertarian Solutions, Star Trek Characters and…Dating Advice? appeared first on Reason.com.

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Our beloved Reason Roundtable listeners did not hold back: per Reason tradition, they sent in questions (and one limerick) and editors Katherine Mangu-Ward, Peter Suderman, Nick Gillespie, and Matt Welch have now given their answers. This is all in the spirit of Reason‘s annual webathon, in which we try to persuade you to make a tax-deductible donation to the nonprofit foundation that publishes our work. In fact, an anonymous, generous donor offered to match the next $100,000 you give us! Or, bid now to win the first-ever Reason NFT, if that’s more your thing.

What did the editors do as soon as they were vaccinated? Which fictional characters best represent them? Are there new Reason podcast shows on the horizon? Can Peter really segue almost anything into a Marvel reference? (Spoiler: Yes.) Cocktails, American literature, relationship advice (it is cuffing season after all) and more all right here on this special video podcast. Want to not just hear but also see the collective groan in response to the phrase “2024 election”? Check out the video version here. You definitely, maybe, possibly will be a better, smarter, more interesting, and maybe freshly date-able person after consuming this podcast. So please give us some money so we can do this all again next year, okay? Okay.

Cheers and libertarian love,

The Reason Roundtable

 

 

Audio production by Ian Keyser
Assistant production by Regan Taylor
Music: “Angeline,” by The Brothers Steve

The post Ask Reason Magazine's Editors Everything: Webathon 2021 appeared first on Reason.com.

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It was an absorbing two hours of oral argument – well-argued by the lawyers, and a very engaged and well-prepared bench.  Like Super Bowl matchups, arguments in the Big Cases often disappoint, given the huge buildup beforehand; this one, however, did not – to my ears, anyway.  [If you missed the proceedings, the full audio is available here, and the official transcript here]

It is difficult to say anything truly novel about the issues in the case, which have been picked over and argued about for 50 years or so. Two points that were the focus of the argument, however, struck me as noteworthy.

The first involves the application of the doctrine of stare decisis. This is, obviously, central to the case; Mississippi explicitly requests that the Court overrule the holdings of prior precedent (Roe v. Wade and Planned Parenthood v. Casey) in regard to the existence and scope of a woman’s constitutional right to terminate her pregnancy.

This is not unusual; litigants frequently ask the Court to overturn its prior holdings, and the analysis of the question is pretty well-trodden ground, with a pretty well-developed protocol for answering the question. As the Court put it in Casey:

When this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask [a] whether the rule has proved to be intolerable simply in defying practical workability; [b] whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; [c] whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or [d] whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification.

What does make this case unusual, though, is that the Court has already done the stare decisis analysis in connection with this constitutional right – in Casey itself, where it held, after a lengthy consideration of the question, that “within the bounds of normal stare decisis analysis, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.” [The discussion in Casey of how the rule of stare decisis should be applied to the constitutional right recognized in Roe is quite interesting; if you haven’t read it, you can find it here]

Thus, as Julie Rinkelman, attorney for the Respondents challenging the Mississippi law, put it, this case is about “precedent on precedent” – precedent squared. Mississippi is not merely asking the Court to discard stare decisis by overturning the substantive holdings of Roe and Casey (that a woman has a constitutional right to terminate a pregnancy pre-viability); it is also asking the court to discard stare decisis by overturning Casey’s stare decisis holding (that the “normal stare decisis analysis” does not call for overruling Roe’s substantive holding).

To put it differently: the Court must, if it is to overrule Roe and Casey, explain why, under the principles of stare decisis, it is discarding its own prior holding applying the principles of stare decisis to this constitutional right.

It’s a little headache-inducing (could we get precedent^3? will the decision in this case be precedent for the use of precedent to determine the use of precedent? and so on) – but I do think framing the central question this way works considerably to Respondent’s advantage. To do what Mississippi asks it to do, the Court will have to explain not only why and how Roe got it wrong (and not just wrong, but wrong in a way that justifies tossing it aside), but why and how Casey got it wrong when it held that the principles of stare decisis do not require overturning Roe (and not just wrong, but wrong in a way that justifies our tossing that holding aside as well). I don’t think that’s going to be too easy to do.

The second noteworthy moment came in a discussion of the source of the underlying constitutional right that the Respondents were asserting. Justice Thomas asked the question this way:

JUSTICE THOMAS: Back to my original question. I know your interest here is in abortion, I understand that, but, if I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be? … What I’m trying to focus on is to lower the level of generality or at least be a little bit more specific. In the old days, we used to say it was a right to privacy that the Court found in the due process, substantive due process clause, okay? So I’m trying to get you to tell me, what are we relying on now? Is it privacy? Is it autonomy? What is it?

I liked Ms. Rikelman’s terse reply:

MS. RIKELMAN: It’s liberty, Your Honor.

Basta cosi.  That line should appear on t-shirts in the near future.

She continued:

It’s the textual protection in the Fourteenth Amendment that a state can’t deprive a person of liberty without due process of law, and the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy …

The question was a little (or more than a little) disingenuous on Justice Thomas’ part. It is true that Roe itself was less than transparently clear about precisely where it was situating the constitutional right in question, leading to several decades of wrangling over “penumbral rights” and “shadow rights” and the “right to privacy” and the “right to medical autonomy” and the like.

But Casey – as Justice Thomas, who was on the Court at the time, is surely aware – settled the matter:

Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the case before us is “liberty.”

The Court’s decisions have afforded constitutional protection to personal decisions relating to marriage, procreation, family relationships, child rearing and education, and contraception, and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. [Many citations, omitted]

Or as Ms. Rikelman put it later in the argument: “For a state to take control of a woman’s body and require that she go through pregnancy and childbirth, with all the physical risks and life-altering consequences that brings, is a fundamental deprivation of her liberty. Preserving a woman’s right to make this decision until viability protects her liberty while logically balancing the other interests at stake.”

I leave it to others to explain why Justice Thomas would want to obfuscate this question by referring to pre-Casey confusion. Framing it as “liberty” – the way Casey framed it – makes it seem not just reasonable but almost self-evident (and, dare I say it here on the VC, squarely libertarian). Surely most people would agree that we enjoy the “liberty” in this country of making vital, intensely personal, life-altering decisions – when and with whom to start a family, where to live, what religion to adhere to (or not), who to have sex with (or not), whether to send one’s children to public or parochial school, and the like – without interference from the state.

It is important, I think, to keep this framing of the issue at the forefront of the argument (and I thought Ms. Rikelman did a very good job of doing that).  Framing matters, in constitutional litigation as much or more than anywhere else – the campaign for the right to marry whomever you wish to picked up vital steam when it was no longer a campaign for “same-sex marriage” but for “marriage equality.”

FWIW, my personal prediction is that the Court will not overrule Roe and/or Casey, at least insofar as there will be five votes to re-affirm the existence of a due-process-protected right to decide whether to terminate one’s pregnancy. Justice Roberts will succeed at getting persuading at least one of the post-Casey Justices to join in his opinion, which will confirm the existence of the right while simultaneously discarding the “viability” standard for determining when the State’s countervailing interest in the life of the fetus arises and giving States more leeway in defining the timing of their prohibitions. Just a guess.

The post Framing the Abortion Argument appeared first on Reason.com.

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Puerto Rico’s Financial Oversight and Management Board, created under the administration of former President Barack Obama, recently reached an agreement with the Commonwealth’s government to restructure the island’s debt, which has been in default since 2017. Media outlets have speculated about a possible “end to the largest bankruptcy proceeding in U.S. history.” The only remaining obstacle is the approval of Chief United States District Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York, who is in charge of the proceedings according to the 2016 PROMESA law (the Puerto Rico Oversight, Management, and Economic Stability Act).

The deal only reached Swain’s desk, however, after the federal oversight board agreed to Puerto Rico Gov. Pedro Pierluisi’s demands “of zero cuts to pensions of current retirees and current accrued benefits of active public employees,” plus funding of $500 million per year for the University of Puerto Rico until 2027.

As John Dizzard of the Financial Times wrote, the holders of Puerto Rico’s defaulted bonds “are being handed deep haircuts on their face value whilst pensions for retired public sector employees are left intact.” As bondholders lose out to pensioners, politicians are turning the logic of secured credit investing on its head.

One of the hearings for Puerto Rico’s defaulted debt concerned $3 billion “in bonds backed by Puerto Rico highway tolls and excise taxes,” and $800 million “in debt secured by taxes on rum paid to Puerto Rico by the federal government,” notes Courthouse News Service‘s Thomas F. Harrison. After the default, Harrison adds, “the insurers for the bondholders tried to collect from the trust funds” to which the revenues were supposed to be paid, only to find “that the (Puerto Rican) government had been diverting the money away.”

One reason why the federal oversight board is legitimizing such conduct is the precedent from the 2008-2009 bailouts and bankruptcy proceedings of Detroit carmakers. Some of the same decision-makers of the financial crash era have also been involved in the Puerto Rican debt dealings.

In 2016, Obama named former judge Arthur J. Gonzalez to the federal oversight board for Puerto Rico. In 2009, Gonzalez was in charge of the Chrysler bankruptcy proceeding. As George Mason University law professor Todd Zywicki wrote of that “egregious” process: “Creditors who held the company’s secured bonds were steamrolled into accepting 29 cents on the dollar for their loans. Meanwhile, the underfunded pension plans of the United Auto Workers—unsecured creditors, but possessed of better political connections—received more than 40 cents on the dollar.”

Gonzalez resigned from the Puerto Rico oversight board in October 2020, a year after his original three-year term had expired. But the spirit of the Chrysler bankruptcy still permeates the recent debt deal. This could have effects beyond Puerto Rico.

As Marc Joffe, a senior policy analyst at the Reason Foundation (the nonprofit that publishes this website), comments: “What does it say to retail buyers of municipal bonds on the U.S. mainland about who is to be rescued after a default?” Political pressure groups in Puerto Rico have tried to put the spotlight on the speculators who have bought the island’s defaulted bonds in expectation of a bailout, the hedge funds which they call “vulture funds,” but the fact remains that over two thirds of municipal securities are “held by individual investors either directly or through mutual funds,” according to the Municipal Securities Rulemaking Board.

Atara Miller, an attorney at the Milbank law firm in New York, told Courthouse News that Puerto Rico’s debt proceeding leaves bondholders “with an umbrella that we can only use on sunny days.” This risks the spread of contagion to states with high debt burdens and unfunded pension schemes such as New Jersey, Illinois, and Kentucky.

Besides its potential effects on the entire municipal bond market, which encompasses nearly $4 trillion in general obligation and revenue bonds, the Puerto Rican debt saga has also made a mockery of the rule of law. According to municipal finance expert Cate Long, who predicted that Puerto Rico would default on its debt as early as 2012, the island’s government is three years behind on releasing audited financial statements, although “Congress explicitly required in the PROMESA law that Puerto Rico’s financials had to be up to date.”

While Puerto Rico has failed to make debt service payments since 2017, government spending is up over 12 percent since then despite a drastic population decrease. Long says Puerto Rican officials are realizing “how easy it is to hide financial data, pretend austerity, and fool their creditors.” For its part, she adds, the U.S. government is creating all the incentives for Puerto Rico “to become a serial defaulter, like Argentina,” a country on the brink of its tenth default since 1816.

The comparison is ominous; Argentina’s longstanding practice of acquiring heaps of debt on the global markets before failing to repay it reflects the workings of its internal politics. As scholars Pablo Spiller (of the University of California, Berkeley) and Mariano Tomassi (of the Universidad San Andrés in Argentina) wrote in 2007, Argentina’s brand of federalism combines decentralized spending for the provinces with largely centralized tax collection and funding schemes. The system, which began to arise in the late 19th century, still motivates “subnational governments [to] adopt a lax fiscal stance in the expectation that they will be bailed out in the event of a fiscal crisis.” 

In turn, they write, the top regional politicians tend to be the crony machine operators “who are best at the game of extracting rents from the common central pool.” Similarly, negotiating rescue packages with the International Monetary Fund has become a part of an Argentine president’s unofficial job description. Will governors of Puerto Rico assume the same role vis-à-vis the White House and Congress?

Certainly, U.S. taxpayers should consider the long-term consequences of their bailout of Puerto Rico, where children of politicians tend to be overrepresented as recipients of six-figure government salaries and seven-figure government contracts. The habitual debt busts of Buenos Aires is one Latin American export that is better left on the dock.

The post The Perverse Incentives of Puerto Rico's Debt Deal appeared first on Reason.com.

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