THE NEUTRAL CORNER

The good or the right; how should we choose? The good refers to what we consider a better or best condition, result, or trend. The right refers to our ability to do as we wish as when I claim I have the right to say what I want. At times, actually often, these two seemingly desired qualities of life are at odds. And this tension is at the heart of something I have referred to in this blog: the drift in our history from a federalist perspective and its communal bias to a natural rights perspective and its promotion of individual preferences. Like most evolutions, the history of this development can be traced through real life stories.

It's a long history with many twists and turns. Let me give you the briefest of looks into this evolving story – a morsel. Its duration extends from the 1870s to 1905 and beyond. Central to this story is the role of the courts. But an event that sets the stage for this history happens shortly before this span of time. It is the ratification of the Fourteenth Amendment.

The Fourteenth Amendment is one of the post Civil War amendments whose aim was to solidify the human rights gained as the result of fighting the war. The relevant portion of the amendment can be found in its very first section:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In short, former slaves are not to be treated, before the law, any differently from any other citizen. But the thing is, and you might have noticed, there is no mention of former slaves in the amendment.

So what exactly does this seemingly straightforward text mean? Here is where the debate between the good and the right comes to bear.

As a way of placing you in this story, let us say you own a business and one of the things you produce other than the product you bring to market is unwanted pollution. The pollution negatively affects the area around your business. The local community, through the auspices of the local government, passes legislation that bans your business from operating in its present location. The marketable items your business produces are useful items and there is nothing unusual about them. Producing them is not seen as illegitimate and working for such a business is considered a legitimate profession. The only problem is that the process by which the item is produced causes pollution affecting your neighbors. The good, as defined by the community, is getting rid of the pollution. The right is defined by your right to engage in a legitimate business and the related property rights you have in running that business.

Essentially, these are the facts of a series of court cases collectively known as the Slaughter-House cases of the 1870s. In this legal battle, the City of New Orleans passed laws that would handle the pollution caused by the activities of the slaughterhouse businesses in the Crescent City. The city set up a slaughterhouse center in a strategic location that would address the pollution problem. The new problem was that not all those who wished to pursue butchering could situate themselves in the center. In effect, their right to engage in a legitimate business or profession was stymied or prohibited. They sued and cited the Fourteenth Amendment to claim the city ordinances were unconstitutional because they discriminated against them by denying them, among other rights, their due process rights.

The cases reached the Supreme Court. In its decision, Justice Samuel Freeman Miller interpreted the Fourteenth Amendment in very limited terms and denied the claims of the plaintiffs. The court held that the law that set up the slaughterhouse center was constitutional and the City of New Orleans was legally exercising its police powers. That is, in this case the Court held that the good – controlling pollution – was more important than the right. By implication, the decision identifies a local governmental entity as the arbiter of what the good was and that function was held to be a legal trump to any claim by the aggrieved butchers to pursue a legitimate profession. The Court rendered a split 5 to 4 decision and one of the dissenters was Justice Stephen Field. He should be considered a patron saint of those who champion the right over the good.

Justice Field argued in this case and in a slew of subsequent cases in which the battle between the good and the right continued, that individuals have constitutional rights to basically act, within reason, in ways that they deem best and government, usually local government, has no constitutional power to hinder such behavior. He claimed that these rights constituted his/her substantive due process rights and were protected by the Fourteenth Amendment. Dying in 1899, he didn't live to see his arguments hold sway and eventually become the accepted way we now interpret the Fourteenth Amendment. In 1905, the Supreme Court did one of its most abrupt about faces by rendering a decision in Lochner v. New York. In that case, the Court finally upheld Field's position on the Fourteenth Amendment.

The Lochner Case overturned a New York law that limited the number of hours women could work in bakeries. The good in this case was seen as protecting women who were in effect forced to work long hours by considering the practice unhealthy to female workers. The right was defined as the right of a worker and employer to engage in contract agreements by which working hours were determined. The case sided with employers and, by doing so, adopted the language of the Fourteenth Amendment, defining the right to enter contracts as a substantive due process right. The decision ushered in what is known as the Lochner era in which the courts routinely sided with business interests, claiming a lot of what they did was simply exercising their rights. Historically, we consider the Lochner era as a time when businesses were given a free hand to exploit workers and a time when true competition was intrinsically damaged.

Eventually, the Lochner era was brought to an end. During the New Deal and as a result of the Roosevelt administration's challenges to the laissez-faire policy the courts were following, the courts began to reintroduce the constitutionality of the police powers of both the states and the federal government. As a reminder, the police powers are those powers of government that provide for the betterment of citizens through protection, health, education, and morals. These powers have been constitutionally reserved to the states and not the federal government. Since the New Deal, through the initiation of federal action, the good has also been promoted by federal progressive laws and programs. These have been authorized by distilling relevant power from the stated constitutional aim to promote the general welfare and from the mostly liberal interpretations of the commerce clause of Article I.

But the effects of Field's thoughts have not been totally forgotten. During the 1960s, the ghost of Field reared its legal head and was applied to new realms of rights. With such cases as Gedion v. Wainwright, Griswold v. Connecticut, Miranda v. Arizona, and Brown v. Board of Education, the courts took the basic idea of extending the rights found in the Bill of Rights in order to counter the enactment of state policies that, as the courts judged, were offensive to those rights. This is basically the same legal argument that was presented in the Lochner case but extended to the other rights protected by the Bill of Rights. In effect, the courts judged that state determinations of what was good violated either the substantive or procedural due process rights of individuals or their equal protection rights guaranteed by the Fourteenth Amendment. It might be difficult for us today to see, for example, the good in any laws that would deprive a defendant of legal counsel, but that is what was considered to be the good before the Gedion v. Wainwright decision. While these decisions blocked local jurisdictions from their role of determining the good – even if that view of the good does not abide by our current view of the good – the overall effect is to define the role of government as neutral to what is the good is. This is not the original federalist view of government's role in reflecting the community it represents.

How does this materialize? Look at the case, Citizens United v. Federal Election Commission. As with the Warren Court cases, the petitioners challenged a governmental policy by citing a Bill of Rights' right, freedom of speech, to undo the government's attempt to control the level of financial contributions to political campaigns and to, in turn, the influence such contributions have on policy decision-making. These aims are seen as good. As in Lochner, the Warren Court decisions, and the arguments of Justice Field, the Citizen United decision incorporates a Bill of Rights' right against either state or federal law. In this case, the Supreme Court argued that the right of free speech is more important than the goodness associated with policy decisions that do not favor the wealthy who can afford huge campaign contributions. The neutral procedural republic is advanced by such decisions.¹ The right takes prominence over the good.

This story is not over. Our courts will continue to handle very real situations that affect many and they will be making decisions trying to decide between what collectives attempt to do to advance their view of the good and the rights of individuals that will be prohibited or limited by those very enactments. If the courts decide to side with the good, on what basis will it determine the good to be? Majority rule? Or a moral philosophic tradition, such as federalism, Christianity, Marxism? My position is there is no such thing as a truly neutral position. By Field's view, neutrality is really a market view by default. With everyone hanging on to extreme views of individual rights, the collective is deprived of the ability to develop a moral direction. Neutrality creates a vacuum of ideas and values. This is filled by majority whims and short term preferences. Sounds too much like the USA in 2012.

1See Sandel, M. J. (1996). Democracy's discontent: America in search of a public philosophy. Cambridge, MA: The Belknap Press of Harvard University Press.