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Published online by Cambridge University Press: 11 January 2017
The article uses the recent U.S. Supreme Court decision in the same-sex marriage case Obergefell v. Hodges as the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced by the state when the state is motivated by improper reasons (prominent among which are paternalistic reasons); and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion in Obergefell.
1. Obergefell v. Hodges, 576 U.S.___(2015).
2. Id. at 10. (Because as of the time of this publication the opinions in Obergefell have not been published in the official U.S. Reports, all page references are to the semi-official slip opinions.) In fairness to Justice Kennedy and the rest of the liberal majority, perhaps in Obergefell they thought the theoretical heavy lifting had already been done by prior Supreme Court precedents that established the right to marry as a fundamental liberty. Yet one searches in vain for such theorizing about liberty in other opinions where no such precedential boost for theory exists. See, e.g., Kennedy's opinion in Lawrence v. Texas, 539 U.S. 558 (2003).
3. Obergefell, supra note 1.
4. Actually our current Chief Justice seems to think that much academic theorizing, not just that of political philosophers, is irrelevant to his job. See John Roberts, “Interview,” Annual Conference of the Fourth Circuit Court of Appeal (June 2011):
pick up a copy of any law review . . . the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth century Bulgaria, which I am sure was of great interest to the academic that wrote it, but is not of much help to the bar.
5. Obergefell, supra note 1, at 29.
6. Id. at 2.
7. Id.
8. Id. at 22.
9. U.S. Const. art. II, sec. 1, cl. 5.
10. This is not quite as fanciful an example as one might think. Oxford University's Les Green uses arithmetic as an example of something that is not law although often used by judges; Green, Leslie, Law and the Role of a Judge, in Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore 325–326 (Ferzan, K. & Morse, S. eds., 2016)Google Scholar. Green, of course, does not disagree that arithmetic binds judges in their role as judges; he quibbles only that it is not properly called part of the law.
11. For a particularly contentious and at one time well-known example of the application of the best-interest standard (by the Iowa Supreme Court evaluating the stable life in an Iowa farming community as compared to the “bohemian” life on a Sausalito houseboat), see Painter v. Bannister, 140 N.W.2d 156 (Iowa, 1966).
12. Originating in the first Naturalization Act of 1790, now in the Immigration and Nationality Act sec. 316(e), 8 C.F.R. sec. 316.10.
13. 8 U.S.C. sec. 1251(a)(2)(A)(i).
14. In earlier work I distinguish “law” in a narrow sense from “law” in a richer, more idiomatic sense. See Moore, Michael, Do We Have an Unwritten Constitution? , 63 So. Cal. L. Rev. 107 (1989)Google Scholar. In the narrow sense, “law” is just a string of authoritatively laid-down symbols it is the job of courts to interpret. In the richer sense, “law” includes the interpretation of those symbols. I here use “law” in its richer sense because it is the sense Roberts intends in his discussion of “what the law is.”
15. See Moore, Michael, Morality and Eighth Amendment Jurisprudence , 31 Harv. J.L. & Pub. Pol'y 47 (2008)Google Scholar.
16. Or at least they should. Holmes famously made fun of lawyers who could not see that there was some law governing items like maliciously broken butter churns even if there were no explicit law (statutes or case decisions) specifically involving butter churns. Holmes, Oliver Wendell Jr., The Path of the Law , 10 Harv. L. Rev. 457 (1897)Google Scholar, at 474–475.
17. Obergefell, supra note 1, at 6 (Alito, J., dissenting).
18. Id. at 16 (Thomas, J., dissenting).
19. Id. at 27 (Roberts, C.J., dissenting).
20. Id. at 6 (Roberts, C.J., dissenting).
21. Id. at 2 (Scalia, J., dissenting).
22. Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (Burger, C.J., concurring).
23. Id. at 199 (Blackmun, J., dissenting).
24. Hart, H.L.A., Positivism and the Separation of Law and Morals , 71 Harv. L. Rev. 593, 607 (1958)CrossRefGoogle Scholar; Hart, H.L.A., Problems of the Philosophy of Law, in 6 Encyclopedia of Philosophy 264–276 (Edwards, P. ed., 1967)Google Scholar, reprinted in H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), at 106.
25. What “plain meaning” is depends mightily on what meaning is. For some possibilities about the meaning of “meaning,” and about how “plain” any of those can be, see Moore, Michael, The Semantics of Judging , 54 So. Cal. L. Rev. 151 (1981)Google Scholar.
26. See id.
27. The well-known simile of law to baseball was used by Chief Justice Roberts in the opening statement for his confirmation hearing before the U.S. Senate Judiciary Committee; Text of John Roberts’ Opening Statement, USAToday.com (Sept. 12, 2005), http://usatoday30.usatoday.com/news/washington/2005-09-12-roberts-fulltext_x.htm.
28. In his classic study of liberty, Isaiah Berlin discovered more than two hundred senses to the ordinary usage of the word “liberty.” Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 121 (1969).
29. See my remarks in the Law and Linguistics Symposium transcript published as What Is Meaning in a Legal Text? A Dialogue among Scholars of Law and Linguistics , 73 Wash. U. L.Q. 771 (1995)Google Scholar.
30. Id.
31. Obergefell, supra note 1, at 7(Thomas, J., dissenting).
32. Id. at 4 (Scalia, J., dissenting) (emphasis added).
33. For an introduction, see Moore, Michael, A Natural Law Theory of Interpretation , 58 So. Cal. L. Rev. 277 (1985)Google Scholar, at 352–358; Moore, Do We Have, supra note 14.
34. Trop v. Dulles, 356 U.S. 86 (1958).
35. On the Lockean natural-rights philosophy adopted by Hamilton and Madison, see Morton White, Philosophy, the Federalist and the Constitution (1987).
36. The classic statements of the dominant semantic theory today, “K-P semantics,” are Saul Kripke, Naming and Necessity (1980); and Hilary Putnam, The Meaning of “Meaning,” in Mind, Language, and Reality (1975). K-P semantic theory was introduced to legal interpretation and legal theory by me in 1981; see Moore, Semantics, supra note 25; and has been carried on since by me and others. See Moore, Natural Law Theory, supra note 33; Moore, Do We Have, supra note 14; Moore, Michael, Plain Meaning and Linguistics , 73 Wash. U. L.Q. 1253 (1995)Google Scholar; Moore, Michael, Justifying the Natural Law Theory of Constitutional Interpretation , 69 Ford. L. Rev. 2087 (2001)Google Scholar; Moore, Michael, Natural Rights, Judicial Review, and Constitutional Interpretation, in Legal Interpretation, Judicial Power, and Democracy (Goldsworthy, J. & Campbell, J. eds., 2001)Google Scholar; Moore, Michael, Legal Reality: A Naturalist Approach to Legal Ontology , 21 Law & Phil. 619 (2002)Google Scholar; Moore, Michael, Morality and Eighth Amendment Jurisprudence , 31 Harv. J.L. & Pub. Pol'y 47 (2008)Google Scholar; Moore, Michael, Truth-Makers for Propositions of Law and for Propositions about Law, in Law and Truth (Cordio, J. & Sucar, G. eds., 2014)Google Scholar (in Spanish), reprinted in English in Blurred Boundaries: Vagueness in Law (G. Keil & R. Poscher eds., 2016). Other legal theorists have since picked up the lance; see, e.g., Nicos Stavropolous, Objectivity in Law (1996); Dworkin, Ronald, Hart's Postscript and the Character of Political Philosophy , 24 Oxford J. Legal Stud. 1 (2004)CrossRefGoogle Scholar; Brink, David, Legal Theory, Legal Interpretation, and Judicial Review , Phil. & Pub. Aff. 105 (1988)Google Scholar; Brink, David, Legal Interpretation, Objectivity, and Morality , in Objectivity in Law and Morals (Leiter, B. ed., 2001)Google Scholar; Soames, Scott, Deferentialism: A Post-Originalist Theory of Legal Interpretation , 82 Ford. L. Rev. 597 (2013)Google Scholar; Soames, Scott, Vagueness and the Law, in Routledge Companion to the Philosophy of Law (Marmor, A. ed., 2012)Google Scholar; Soames, Scott, Deferentialism, Living Originalism, and the Constitution, in Inference, Intention, and Ordinary Meaning: What Jurists Can Learn about Legal Interpretation from Linguists and Philosophers (Slocum, B. ed., 2015)Google Scholar; Coleman, Jules & Simchen, Ori, Law, 9 Legal Theory 1 (2003)Google Scholar; Simchen, Ori, Metasemantics and Legal Interpretation, in Reasons and Intentions in Practical Agency (Paviakos, G. & Rodriguez-Blanco, V. eds., 2015)CrossRefGoogle Scholar (this last goes after Scalia's brand of originalism specifically, concluding that it is based on bad linguistics).
37. I presented this view of originalism at the 1988 National Student Symposium of the Federalist Society at the University of Virginia on a panel chaired by Justice Scalia and attended by the then-head of the Equal Employment Opportunity Commission, Clarence Thomas. That presentation was published as Moore, Michael, The Written Constitution and Interpretivism , 12 Harv. J. L & Pub. Pol'y 3 (1989)Google Scholar. I gather from their subsequent judging that I failed to convince either of them of the error of their ways. Perhaps I can do better with the readership of this paper.
38. Hughes, Charles Evan, Speech, Elmira, NY, May 3, 1907, in Addresses and Papers of Charles Evan Hughes, Governor of New York, 1906–1908 139 (1908)Google Scholar.
39. See Moore, Michael, Precedent, Induction, and Ethical Generalization, in Precedent in Law (Goldstein, L. ed., 1987)Google Scholar.
40. Obergefell, supra note 1, at 18 (Roberts, C.J., dissenting). Like Roberts, Chief Justice Rehnquist was not above trotting out this disingenuous bit of judicial rhetoric. In his dissent in Roe, for example, Rehnquist complained that an operation like abortion “is not ‘private’ in the ordinary sense of that word” and that “the ‘privacy’ which the Court finds here is not even a distant relative [of true privacy].” Roe v. Wade, 419 U.S. 113, 172 (1973) (Rehnquist, J., dissenting).
41. The fiction that it was privacy that was being protected in the Griswold line of cases was begun by Douglas himself in his opinion for the Court in Griswold v. Connecticut, 381 U.S. 479, 486 (1965): “We deal with a right of privacy.” The patent motive for Douglas’ dissembling was to distance the Court's second adventure with liberty from the Court's first adventure during the Lochner era. Yet a majority of the Justices who decided Griswold understood as they made that decision that the decision really protected liberty, not privacy. See the concurrences of Justices White, Goldberg, and Harlan, id. at 502, 486, and 500, respectively. See also the later remembrances of Justices Stewart and Brennan: “It was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded [liberty].” Roe, supra note 40, at 167–168 (Stewart, J., concurring). “If the right of privacy means anything, it is 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.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (Brennan, J., concurring).
42. Lochner v. New York, 198 U.S. 45 (1905). As I discuss below, constitutionally protected (negative) liberty is freedom from unwarranted governmental coercion. Privacy, by contrast, is the value of isolation from others in the sense that they lack information about one, attention to one, and access to one. For this latter, true sense of privacy, see Gavison, Ruth, Privacy and the Limits of Law , 89 Yale L.J. 421 (1980)CrossRefGoogle Scholar.
43. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US. 833, 983 (1992) (Scalia, J., dissenting).
44. Bowers, supra note 22, at 196–197 (Burger, C.J., concurring).
45. Washington v. Glucksberg, 521 U.S. 702 (1997).
46. I explore these indeterminacies in the context of Eighth Amendment interpretation in Moore, Michael, Morality in Eighth Amendment Jurisprudence , 31 Harv. J. L. & Pub. Pol'y 47 (2008)Google Scholar.
47. Felix Frankfurter's favorite grouping. See Rochin v. California, 342 U.S. 165 (1952).
48. See, e.g., Jerome Frank's concurring opinion in Repouille v. United States, 165 F.2d 152 (2d Cir. 1947), where Judge Frank urged the consulting of America's “moral elite” for the relevant tradition.
49. The few exceptions are noted in Eskridge, William, A History of Same-Sex Marriage , 79 Va. L. Rev. 1419 (1993)CrossRefGoogle Scholar.
50. Obergefell, supra note 1, at 13 (Roberts, C.J., dissenting).
51. Id. at 11.
52. See the critique of relativism in Hurd, Heidi, Relativistic Jurisprudence: Skepticism Founded on Confusion , 61 S. Cal. L. Rev. 1417 (1988)Google Scholar.
53. Bernard Williams, Morality: An Introduction to Ethics (1972), at 20: vulgar relativism is “possibly the most absurd view to have been advanced even in moral philosophy.”
54. Preference utilitarianism—where what is maximized is the satisfaction of human preferences rather than eudemonic states of happiness or pleasure or normative states of objective need—is usually dated from John Stuart Mill. It is the form of utilitarianism most easily assimilated to modern welfare economics.
55. Oliver Wendell Holmes, Jr., Letter to Frederick Pollock, 1910, in 1 Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes 1874–1932 (M. DeWolfe Howe ed., 1941), at 163.
56. A famous example from another well-known utilitarian; Posner, Richard, An Economic Theory of the Criminal Law , 85 Colum. L. Rev. 1193 (1985)CrossRefGoogle Scholar.
57. Joel Feinberg, Harmless Wrongdoing (1988), at 46.
58. Cf. Stephen Decatur on patriotism: “My country, right or wrong, but still my country.” Stephen Decatur, after-dinner toast, Norfolk, Virginia, 1816, quoted in A.S. MacKenzie, Life of Stephen Decatur: A Commodore in the Navy of the United States (1846), at 443. Mill's nineteenth-century critic, Sir James Fitzjames Stephens, is best construed as a majoritarian. James Fitzjames Stephens, Liberty, Equality, Fraternity (1873). A more modern example is Robert Bork, The Tempting of America (1990).
59. Obergefell, supra note 1, at 22(Roberts, C.J., dissenting).
60. Ely was eloquent on this point:
An appeal to consensus . . . on the theory that the legislature does not truly speak for the people's values, but the court does, is ludicrous . . . we may grant until we're blue in the face that legislatures aren't wholly democratic but that isn't going to make courts [ascertaining traditional consensus] more democratic.
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 67–68.
61. The Federalist No. 78 (Alexander Hamilton).
62. In Moore, Justifying, supra note 36, I put this point in terms of Lord Coke's dictum, “No man shall be the judge of his own cause.”
63. As John Hart Ely once illustrated this point: “Lynching is a tradition, riding people out of town on a rail is a tradition, keeping blacks from voting is a tradition.” Ely, supra note 60, at 21.
64. I explore the Burkean case for conforming with tradition in Moore, Michael, The Dead Hand of Constitutional Tradition , 19 Harv. J. L. & Pub. Pol'y. 263 (1996)Google Scholar.
65. Obergefell, supra note 1, at 3 (Roberts, Ch. J., dissenting).
66. Moore, Dead Hand, supra note 63.
67. Obergefell, supra note 1, at 8 (Thomas, J., dissenting).
68. John Locke, An Essay Concerning Human Understanding, 3.11.16, 4.3.18–20 (1690).
69. An Aquinian saying. See Thomas Aquinus , First Part of the Second Part, Q. 90, Ans. 2, Summa Theologica, in 2 Basic Writings of St. Thomas Aquinas (Regis, Anton ed., New York: Random House, 1945)Google Scholar, at 774.
70. As proclaimed in The Federalist No. 78 (Alexander Hamilton):
There can be but few men in the society who will have sufficient skill in the law to qualify them for the station of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
71. Obergefell, supra note 1, at 12 (Roberts, C.J., dissenting).
72. Id. at 22 (Roberts, C.J., dissenting).
73. Griswold, supra note 41, at 486.
74. Hart, H.L.A., The Ascription of Rights and Responsibilities , 49 Proc. Aristotelian Soc'y 171 (1949)CrossRefGoogle Scholar.
75. Obergefell, supra note 1 (Roberts, C.J., dissenting).
76. Id. See also the dissent of Justice Scalia in id.
77. Waldron, Jeremy, A Rights-Based Critique of Constitutional Rights , 13 Oxford J. Legal Stud. 18 (1993)CrossRefGoogle Scholar.
78. Michael Moore & Jeremy Waldron, The Rights-Based Argument for Judicial Review, Debate at the University of Pennsylvania Law School (1995).
79. My side of the debate was written up in a section of Moore, Justifying, supra note 36.
80. Jeremy Waldron, Law and Disagreement (1999).
81. Marbury v. Madison, 5 U.S. 137 (1803).
82. Obergefell, supra note 1, at 2 (Roberts, C.J., dissenting).
83. As Chief Justice Roberts proclaims; id. at 16 (Roberts, C. J., dissenting).
84. Id. at 3.
85. Id.
86. Marbury, supra note 80, at 177.
87. The nature of moral realism is laid out in Geoffrey Sayre McCord, Moral Realism, Stanford Encyclopedia of Philosophy (2006). My own definition of moral realism is narrower than McCord's; see Moore, Michael, Moral Reality Revisited , 90 Mich. L. Rev. 2424 (1992)CrossRefGoogle Scholar.
88. Southern Pacific v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
89. Moore, Moral Reality Revisited, supra note 87; Michael Moore, Moral Reality, Wis. L. Rev. 1061 (1982). Both essays are reprinted in Michael Moore, Objectivity in Law and Ethics: Essays in Moral and Legal Ontology (2004). Others did much more to resuscitate moral realism in the eighties than did I. These prominently included my good friends and colleagues Brink, David, Moral Realism and the Skeptical Arguments from Disagreement and Queerness , 62 Australiasian J. Phil. 111–126 (1984)CrossRefGoogle Scholar; and David Brink, Moral Realism and the Foundations of Ethics (1989); Sturgeon, Nick, Harman on Moral Explanations of Natural Facts , 24 S. J. Phil. Supp. 69–78 (1986)CrossRefGoogle Scholar; Sturgeon, Nick, What Difference Does It Make if Moral Realism Is True? , 24 S. J. Phil. Supp. 115–141 (1986)CrossRefGoogle Scholar; and Sturgeon, Nick, Moral Explanations, in Essays on Moral Realism (McCord, Geoffrey Sayre ed., 1988)Google Scholar; Lycan, Bill, Moral Facts and Moral Knowledge , 24 S. J. Phil. 79–94 (1986)CrossRefGoogle Scholar; and Geoffrey Sayre-McCord, Essays on Moral Realism (1988).
90. I chart the corrosive effect on judging done by moral skepticism in Moore, Moral Reality, supra note 89; and Moore, Moral Reality Revisited, supra note 87. I represented the People for the American Way in opposing Robert Bork in his 1987 confirmation hearings on the ground that Bork's moral skepticism so warped his view of the judicial function as to disqualify him; see Michael Moore, Judge Bork: A Contradiction in Terms, L.A. Times, Sept. 18, 1987.
91. Argued for in Moore, Michael, Good without God, in Natural Law, Liberalism, and Morality (George, R. ed., 1995)Google Scholar, reprinted in Moore, Objectivity, supra note 89.
92. I disclaim human nature naturalism in my response to Waldron in Michael Moore , Responses and Appreciations, in Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore, 408, 411–412 (Ferzan, Kim & Morse, Stephen eds., 2016)Google Scholar.
93. The phrase is Herbert Hart's mocking of natural law. At a presentation by a young natural-law theorist at All Souls College, Oxford, in 1988, Hart asked, “What do you mean by ‘natural’?,” and receiving no satisfactory answer, then proffered, “So it is just doing what comes naturally?”
94. G.E. Moore, e.g., was famously a realist about morals but one who believed in nonnatural, moral properties. G.E. Moore, Principia Ethica (1903).
95. Respectively, virtue-based, consequentialist, and deontological theories of morality.
96. Jeremy Bentham , Anarchical Fallacies, 2 The Works of Jeremy Bentham, excerpted in Nonsense upon Stilts: Bentham, Burke, and Marx on the Rights of Man (Waldron, Jeremy ed., 1987)Google Scholar.
97. See Larry Alexander & Michael Moore, Deontological Ethics, Stanford Encyclopedia of Philosophy (3d ed. 2016).
98. See John A. Simmons, The Lockean Theory of Rights (1992).
99. As I argue was the case with Robert Bork, a contemporary natural-rights skeptic. See Moore, Judge Bork, supra note 90. By contrast, even if one disagrees with Justice Thomas as to his views on the natural rights we all possess, he at least should not be disqualified as a nonbeliever in natural rights generically. See Michael Moore, Unnatural Brawl over Natural Law, L.A. Times, Sept. 3, 1991.
100. William Brennan, Speech, Text and Teaching Symposium, Georgetown University, Washington, D.C. (Oct. 12, 1985).
101. Erich Segal, Love Story (1970).
102. Johnny Cash , “What Is Truth?,” Johnny Cash Show (ABC television broadcast Apr. 15, 1970)Google Scholar.
103. Joseph Raz, The Morality of Freedom (1986), at 14–16.
104. Moore, Michael, Freedom , 29 Harv. J. Law & Pub. Pol'y 9 (2005)Google Scholar, at 10.
105. Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 121 (1969).
106. Braveheart (Paramount Pictures 1995).
107. E.g., George W. Bush, Freedom and Democracy, Address at Riga, Latvia (May 7, 2005). Bush's usage seemingly was to use “liberty” in what is usually called the “liberty of the ancients” sense, viz, as a synonym for political participation.
108. Risky Riders: Touting Freedom, Bikers Take Aim at Helmet Laws, Wall St. J., Dec. 1, 2004, at A1. See also the public commentary, Common Sense Says Wear the Helmet, Dude, Wall St. J., Dec. 16, 2004, at A17.
109. Obergefell, supra note 1, at 3-7 (Thomas, J., dissenting).
110. See the extensive discussion in Ian Carter, Positive and Negative Liberty, in Stanford Encyclopedia of Philosophy (2012).
111. Wesley Hohfeld, Fundamental Legal Conceptions (1919).
112. Obergefell, supra note 1, at 11-12 (Thomas, J., dissenting).
113. I discuss this old chestnut in Michael Moore, Causation and Responsibility (2009), at 441–442.
114. See id. at 55–59.
115. Under the Supreme Court's current state action doctrine, there are certain necessarily public functions (and thus state action) for activities traditionally and exclusively performed by the state. Jackson v. Metro Edison Co., 419 U.S. 345, 352 (1974); Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). This line of cases actually considers when some private entity is a state actor, not the question examined in the text of the present article, which is whether the activity is one that the state cannot omit to perform without the omission constituting state action.
116. See Alan Wertheimer, Coercion (1987), ch. 12.
117. South Dakota v. Dole, 483 U.S. 203 (1987).
118. Nat'l Fed'n of Indep. Bus. v. Sibelius, 567 U.S. ___ (2012).
119. Id. at 51.(The page reference is to the slip oipinion, as is necessary due to the lack of publication of the opinion in the U.S. reports at the time of publication of this article.)
120. Loving v. Virginia, 388 U.S. 1 (1967).
121. Obergefell, supra note 1, at 11–12 (Thomas, J., dissenting).
122. Of course, if a state were not obligated to offer a benefit such as public swimming pools but it did offer such benefit only to those of a certain race, gender, or sexual orientation, that would offend equality even if it did not offend negative liberty.
123. Aquinas thought that the Divine Law required that there be a law of bailment contracts but left the determination of the details of this matter to human law. Aquinas, supra note 69.
124. Fuller, Lon, Freedom: A Suggested Analysis , 68 Harv. L. Rev. 1305 (1955)CrossRefGoogle Scholar.
125. Coppage v. Kansas, 236 U.S. 1 (1915). Much earlier, Lochner’s author, Justice Peckham, had concluded that:
the liberty protected [in the Fourteenth Amendment] means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen . . . to enter all contracts which may be proper, necessary and essential.
Allgeyer v. Louisiana, 165 U.S. 578 (1897).
126. Cf. Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (county may not refuse parade license or condition its granting on the payment of a fee).
127. Although I intend a broader notion of liberty than does Justice Thomas, I intend a narrower notion of negative liberty than did Mill in his famous essay, On Liberty, originally published 1859; John Stuart Mill, On Liberty (David Bromwich & George Kateb eds., 2008); for Mill included all legal and social coercion as the restraints that are the enemies of negative liberty. I intend the narrower notion so as to explore the distinctive contours given to liberty by the absence of that dominant form of legal coercion, criminal punishment or its equivalent.
128. An intrinsic good is something that is good not because it contributes to something else that is good but because it is good in itself. Every theory of value is committed to there being intrinsic values by its commitment to instrumental values, on pain of infinite regress. See Michael Moore, Placing Blame: A General Theory of the Criminal Law (1997), at 157–158, 160–162.
129. This might be the suggestion of Simester & von Hirsch: “No one, including the state, should coerce others without good reason.” Andrew Simester & Andrew Von Hirsch, Crimes, Harms, and Wrongs (2011), at 19. Compare Freeman, Samuel, Criminal Liability and the Duty to Aid the Distressed , 142 U. Penn. L. Rev. 1455–1492 (1994)CrossRefGoogle Scholar, at 1484: “Surely there is nothing intrinsically valuable about the natural liberty to do wrong.”
130. A summary of Moore, Placing Blame, supra note 128, at 663–665, 746–748; and Moore, Freedom, 29 Harv. J.L. & Pub. Pol'y 9–26 (2005), at 11–15.
131. John Rawls, A Theory of Justice (1971), at 62.
132. Mill, supra note 127. Unlike Mill, we live in a post–artificial intelligence world; yet even in our world, where cognitive science has shown us that we are ourselves a kind of machine, we can join Mill in drawing his contrast between self-determining persons and mere (other kinds of) machines. See Moore, Michael, “ Nothing but a Pack of Neurons”: The Responsibility of the HumanMachine, in Neurolaw (Donnelly, Bebhinn ed., 2017)Google Scholar.
133. The irrelevance of metaphysically libertarian free will to everything we care about—agency, intentionality, ability, selfhood, responsibility, etc.—is explored in depth in Michael Moore, Compatibilism(s) for Neuroscientists, in Law and the Philosophy of Action 1–59 (2014); see also Moore, Michael, Stephen Morse and the Fundamental Psycho-Legal Error , 10 Crim. L. & Phil. 45 (2016)Google Scholar.
134. Significantly, Hume calls such autonomy, “liberty.” See David Hume, Enquiry Concerning Human Understanding (1748), sec 8. I explore Humean autonomy in depth in Michael Moore, The Neuroscience of Volitional Excuse, in Philosophical Foundations of Law and Neuroscience (D. Patterson ed., 2016).
135. See Barbara Herman, The Practice of Moral Judgment (1993), ch. 1.
136. Raz, who uses autonomy in its Kantian sense, draws both of these inferences. Raz, supra note 103.
137. Tadros, Victor, The Wrong and the Free, in Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Kim, J. & Morse, S. eds., 2016)CrossRefGoogle Scholar, questions this Kantian idea. I answer Tadros's criticisms in Michael Moore, Responses, supra note 92, at 356.
138. These costs and the literature on them are summarized in Moore, Placing Blame, supra note 128, at 663–665.
139. The presumption of liberty is discussed in Joel Feinberg, Social Philosophy (1973), at 20–22. See also Husak, Douglas, The Presumption of Freedom , 17 Nous 345–362 (1983)CrossRefGoogle Scholar; Moore, Placing Blame, supra note 128, at 749–750.
140. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
141. This is true even if natural rights are not treated as “absolutes” but are treated as overcomable by bad consequences over some threshold. See the discussion of “threshold deontology” in Alexander & Moore, supra note 97.
142. This reductio of there being a natural right to liberty seems to have been the chain of reasoning leading Robert Bork to abandon his initial enthusiasm for Griswold’s 1965 revival of there being a constitutional right to liberty. Compare Robert Bork, The Supreme Court under a New Philosophy, Fortune (Dec. 1968) at 138 (“the Court [must] have . . . a theory of natural rights,” and among these rights must be “an enclave of freedom” such as Griswold protected), with Bork, supra note 57.
143. The “prima facie” rights approach is most famously associated with W. David Ross, The Right and the Good (1935). I discuss this view of rights briefly in Alexander & Moore, supra note 97, and in more depth in response to another critic of mine, Montague, Philip, Moral Dilemmas and Moral Theory: Towards a Viable Deontology, in Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Kim, J. & Morse, S. eds., 2016)CrossRefGoogle Scholar; see Moore, Responses, supra note 92, at 401–405.
144. This seemed to be Ronald Dworkin's main reason for refusing to grant the existence of a natural right to liberty. See Ronald Dworkin, Liberty and Liberalism, in Taking Rights Seriously (1978), ch. 11.
145. Rawls, supra note 128.
146. Dworkin, Ronald, We Do Not Have a Right to Liberty, in Liberty and the Rule of Law (Cunningham, R. ed., 1979)Google ScholarPubMed.
148. See, e.g., the discussion of Justices Blackmon and Stevens in dissent in Bowers, supra note 22.
149. Mill, supra note 127.
150. In his magisterial four-volume treatise, Joel Feinberg, The Moral Limits of the Criminal Law (1984–1988), reformulated Mill's harm principle in terms of four possible reasons for use of state coercion. See Joel Feinberg, Harm to Others (1984), at 26–27; Joel Feinberg, Offense to Others (1985); Joel Feinberg, Harm to Self (1986); and Joel Feinberg, Harmless Wrongdoing (1988).
151. Moore, Placing Blame, supra note 128, at 751. Notice that this right, being derivative of a more basic correlative duty, lacks two of the characteristics of most natural rights: (1) such rights usually ground correlative duties rather than being grounded by such duties, as here; and (2) such rights are usually accompanied by the power of the right-holder to waive the right and thus relieve the duty-holder of her duty, which is not true here. Yet the claims made for the derived right still qualify it as a right by virtue of its peremptory force and its being grounded in the interests of the right holder in properly democratic representation.
152. See Herman, supra note 132.
153. Fitzjames Stephens, supra note 57.
154. See, e.g., Dworkin, Gerald, Paternalism , 56 Monist 64 (1972)CrossRefGoogle Scholar.
155. Feinberg, Offense, supra note 150, ch. 1.
156. Mill, supra note 127, at 70, 77.
157. H.L.A. Hart, Law, Liberty, and Morality (1963).
158. G. Dworkin, supra note 154.
159. Wendy Donner & Richard Fumerton, Mill (2009).
160. David Brink, Mill's Progressive Principles (2013). Brink will concede, at least, that Mill never explicitly denied what I think he is committed to thinking even if he did not positively say it.
161. I draw some comfort from Gerald Dworkin's seeing that at least it is not clear whether Mill made “the distinction between ‘positive’ and ‘critical’ morality,” when he was condemning “morals” motivations. Dworkin, Gerald, Moral Paternalism , 24 Law & Phil. 305 (2004)CrossRefGoogle Scholar, at 306–307. Dworkin refers to Mill's well-known passage in which he holds that no one can “rightfully be compelled to do or to forbear because . . . in the opinion of others to do so would be . . . right.” Mill, supra note 127, at 13 (emphasis added). Although I was the editor for Dworkin's article, I did not suggest this point to Dworkin.
162. The title of Bentham's first volume (of a projected 10) on legislation; Jeremy Bentham, An Introduction to the Principles of Morals and of Legislation (1789).
163. Mill, supra note 127.
164. Id.
165. Fitzjames Stephens, supra note 57.
166. See, e.g., Harcourt, Bruce, The Collapse of the Harm Principle , 90 J. Crim. L. & Criminology 109 (1999)CrossRefGoogle Scholar.
167. Even in this context, the objection is not the knockdown winner that Mill's critics often think that it is. Mill himself anticipates the objection when he argues that it is only actions whose “chief” or “proximate” effects are not harmful to others that are immune from state regulation; Mill, supra note 127. Later Millians answer (alternatively but on Mill's behalf) that the only actions immune from state regulation are those that have no injurious effects on those interests of others worthy of protection as legal rights. Rees, John C., A Rereading of Mill's On Liberty , 8 Pol. Stud. 113 (1960)CrossRefGoogle Scholar. Since I substitute the moral-wrong principle for Mill's harm principle below, I do not have a dog in this fight and so leave the issue unresolved here.
168. I advert to these familiar problems in Moore, Placing Blame, supra note 128, ch. 2.
169. I advance these counterexamples (of harmless wrongs and wrongless harms) at an intuitive level in Michael Moore, Liberty and Drugs, in Placing Blame: A General Theory of the Criminal Law (1997), ch. 18.
170. The attempt to limit utilitarianism to obligation to not making the world worse (negative utilitarianism), rather than there also being an obligation to make it better, begins with Bentham. See the discussion in Anthony Quinton, Utilitarian Ethics, (1989).
171. Mill, supra note 127.
172. Moore, Placing Blame, supra note 128, ch. 2.
173. Michael Moore, The Moral Worth of Retribution, in Placing Blame: A General Theory of the Criminal Law (1997), ch. 3.
174. Moore, Placing Blame, supra note 128, pt. II.
175. Id. at 70–73, ch. 16. My argument connecting the retributivist theory of punishment to the legal moralist theory of legislation is critically examined in Brink, David, Retributivism and Legal Moralism , 25 Ratio Juris 496–512 (2012)CrossRefGoogle Scholar; in Duff, Antony, Legal Moralism and Public Wrongs, in Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore 97–109 (Ferzan, K. & Morse, S. eds., 2016)Google Scholar; and in Tadros, supra note 137, at 79–94.
176. The side constraint by legality is not absolute; we may dispense with legality when the claims of retributive justice are sufficiently strong, as at the Nuremberg trials and in the “rough justice” achieved in the execution of Osama bin Laden.
177. A now widely shared view of the “new anarchists,” Michael Smith, Heidi Hurd, Joseph Raz, and others. Smith, M.B.E., Is There a Prima Facie Obligation to Obey the Law? 82 Yale L.J. 950 (1973)CrossRefGoogle Scholar; Hurd, Heidi, Challenging Authority , 100 Yale L.J. 1611 (1991)CrossRefGoogle Scholar; Raz, supra note 103.
178. Described in some detail in Feinberg, Harmless, supra note 150, at 20–25.
179. See Hurd, Heidi, Duties beyond the Call of Duty , 6 Ann. Rev. L. & Ethics 3 (1998)Google Scholar.
180. Feinberg, Offense, supra note 150.
181. See also Moore, Michael, Four Reflections on Law and Morality , 48 Wm. & Mary L. Rev. 1523–1569 (2007)Google Scholar, at 1545.
182. Moore, Placing Blame, supra note 128, at 177–180.
183. On mixed theories of punishment, see id. at 92–94.
184. See, e.g., Dennis Baker, The Right Not to Be Criminalized: Demarcating Criminal Law's Authority (2011); Simester & von Hirsch, supra Note 129. Arguably included here is Doug Husak, for his internal principles limiting criminalization include harm, evil, wrongs, and desert; Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008), ch. 2.
185. For some thoughts in these directions, see Joseph Raz, Practical Reasons and Norms (1975).
186. Moore, Michael, Liberty and Supererogation , 6 Ann. Rev. L. & Ethics 111(1998)Google Scholar.
187. Moore, Causation, supra note 113, at 37–38.
188. Joel Feinberg divides up wrongs between grievance and nongrievance wrongs, urging that only the former are the proper subject of criminal legislation. Feinberg, Harmless, supra note 150, 18–19.
189. Antony Duff, Sandra Marshall, and Douglas Husak further divide up grievance wrongs between public and private wrongs, urging that only the former are the proper subject of criminal legislation. Marshall, S.E. & Duff, R.A., Criminalization and Sharing Wrongs , 11 Can. J. L. & Jurisprudence 7 (1998)CrossRefGoogle Scholar; Duff, Legal Moralism, supra note 172; Husak, Overcriminalization, supra note 184, at 135–139.
190. As to the first, see Moore, Michael, Liberty's Constraints on What May Be Made Criminal, in Criminalization: The Political Morality of the Criminal Law (Duff, R.A., Farmer, Lindsay, Marshall, S.E., Renzo, Massimo & Tadros, Victor eds., 2014)Google Scholar; Moore, Responses, supra note 92. As to the second, see Moore, Placing Blame, supra note 128, at 760–761.
191. The label is Feinberg's. See Feinberg, Harm to Self, supra note 150.
192. Mill, supra note 127.
193. As the Court held in Casey, supra note 43, at (“the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated so long as their purpose is to persuade the woman to choose childbirth over abortion.”).
194. Mill, supra note 127.
195. The phrase “weakly paternalistic” is Gerald Dworkin's. Gerald Dworkin, Paternalism, Stanford Encyclopedia of Philosophy (2014).
196. Argued on the other side in Moore, Michael, Liberty and Drugs, in Drugs and the Limits of Liberalism (Greiff, P. de ed., 1999)Google Scholar.
197. This literature begins with Sunstein, Cass & Thaler, Richard, Libertarian Paternalism Is Not an Oxymoron , 70 U. Chi. L. Rev. 1166 (2003)CrossRefGoogle Scholar. This move is critically examined from a libertarian perspective in Heidi Hurd, Fudging Nudging: Why “Libertarian Paternalism” Is the Contradiction It Claims It's Not, in Geo. J.L. & Pub. Pol'y (forthcoming 2016).
198. Gerald Dworkin's label; G. Dworkin, Moral Paternalism, supra note 161.
199. Feinberg's label. See Feinberg, Harm to Others, supra note 150, at xiii.
200. Dworkin, Moral Paternalism, supra note 161, at 308.
201. Distinguishing subjective, motivating, explanatory reasons from objective, justifying, normative reasons is a staple of modern philosophy. See generally Maria Alvarez, Reasons for Action: Justification, Motivation, and Explanation, Stanford Encyclopedia of Philosophy (2016). My own acknowledgment of the distinction is in Michael Moore, Educating Oneself in Public: Critical Essays in Jurisprudence (2000), at 141–142.
202. Raz, Joseph, Facing Up: A Reply , 62 S. Cal. L. Rev. 1153 (1989)Google Scholar. Raz is replying here to Moore, Michael, Authority, Law, and Razian Reasons , 62 S. Cal. L. Rev. 827 (1989)Google Scholar. The issue that Raz and I were debating has received considerable discussion in the contemporary philosophical literature following on Mark Schroeder's hypothetical of the surprise party in Mark Schroeder, Slave of the Passions (2007). See, e.g., Markowitz, Julia, Acting for the Right Reason , 110 Phil. Rev. 201 (2010)Google Scholar, examining whether “any action is morally worthy if and only if my motivating reasons for acting coincide with the reasons morally justifying the action.”
203. See my rejoinder to Raz's reply to me in Moore, Educating Oneself, supra note 201, at 25–29.
204. In concession to Raz, there will be some occasions when my view of the tight connection between the contents of justifying and motivating reasons will not hold. Raz gives one of them: on the normative powers view of promises (which I reject for reasons explored in Heidi Hurd, Promises, Schmomises, Law & Phil. [forthcoming 2017]), a promise not to act for a certain reason does affect proper motivation but is without effect on the force of justifying reasons. Another is provided by the example in Schroeder, supra note 202, of the surprise party: someone has a justifying reason to go home, given that there is a surprise party there awaiting him (and he likes only surprise parties, not regular parties), yet he cannot go home for the reason that there will be a surprise party (because being so motivated would require knowing of the party and ruining the surprise). Neither of these rather recherché situations is present in the case of legislative motivation discussed in the text.
205. Moore, Placing Blame, supra note 128, at 760–761.
206. See, e.g., the defense of Proposition 6 on the 1978 California ballot (banning gays from public school teaching) by its sponsor, Senator John V. Briggs, Save Our Schools, L.A. Herald Examiner, Sept. 14, 1978.
207. As Senator Briggs reminds his readers. Id.
208. As I argue in my response to Briggs; Michael Moore, The Briggs Amendment: It Discriminates against Homosexuals, L.A. Herald Examiner, Sept. 14, 1978, at A18. Ronald Reagan eventually joined my side of the debate in Ronald Reagan, Editorial: Two Ill-Advised California Trends, L.A. Herald Examiner, Nov. 1, 1978, at A19.
209. A point on which Michael Sandel and I have long agreed. Compare Sandel, Michael, Moral Argument and Liberal Toleration: Abortion and Homosexuality , 77 Cal. L. Rev. 521 (1989)CrossRefGoogle Scholar, and Moore, Michael, Sandelian Anti-Liberalism , 77 Cal. L. Rev. 539 (1989)CrossRefGoogle Scholar. Our only disagreement here is terminological: Sandel defines liberalism so as to limit it to the Millian version that I reject.
210. A paraphrase of Justice Sandra Day O'Conner's apparent moral view on abortion.
211. Feinberg, Harmless, supra note 150, at 20.
212. Id.
213. Exploding the conventional pieties about promise-keeping seems to be the major point in Hurd, Promises, Schmomises, supra note 204.
214. Moore, Liberty's Constraints, supra note 190.
215. These are culled from Moore, Placing Blame, supra note 128, at 763–764.
216. Immanuel Kant , The Metaphysical Elements of Justice, Metaphysics of Morals pt. 1 (J. Ladd trans., Indianapolis: Hackett, 1965)Google Scholar, at 100.
217. I explore this distinction (between categorical force of deontological norms, on the one hand, and degrees of intrinsic goodness of states of affairs in consequentialist ethics, on the other) in Moore, Placing Blame, supra note 128, ch. 4.
218. Alexander & Moore, supra note 97.
219. Argued for in Moore, Michael, Torture and the Balance of Evils , 23 Isr. L. Rev. 280 (1989)Google Scholar, revised and reprinted in Moore, Placing Blame, supra note 128, ch. 17.
220. Such as my sometime public debate partner Jeremy Waldron most recently. See Michael Moore & Jeremy Waldron, The Ethics of Targeted Killings, University of Illinois, November 2, 2015, https://www.youtube.com/watch?v=7ssEX5hEzyQ.
221. Moore, Michael, The Rationality of Thresholds within Deontology, in Moral Puzzles and Legal Perplexities; Essays on the Influence of Larry Alexander (Hurd, H. ed., forthcoming 2018)Google Scholar.
222. Alexander & Moore, supra note 97.
223. Ronald Dworkin, Taking Rights Seriously (1978).
224. We can be outside such obligations and prerogatives because of exceptions, scope limitations, or simple absence of any norm in the vicinity. See Moore, Michael, Patrolling the Borders of Consequentialist Justifications: The Scope of Agent-Relative Restrictions , 27 Law & Phil. 35 (2008)CrossRefGoogle Scholar.
225. I give an overview of my own and others’ past work on the general relationships between law and morality, in Moore, Michael, The Various Relations between Law and Morality in Contemporary Legal Philosophy , 25 Ratio Juris 435 (2012)CrossRefGoogle Scholar (Bologna University Symposium on Michael Moore's Perspective on the Relations Between Law and Morality).
226. William Blackstone, Commentaries on the Common Law of England (7th ed. 1825).
227. Some of the examples given in Moore, Various Relations, supra note 225.
228. I summarize these four modes of institutional support, together with direct reference, as together constituting the five ways morality is required to interpret and apply legal texts, in id.
229. Kurt Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014).
230. This is Justice Goldberg's view in his concurring opinion in Griswold, supra note 41.
231. See Corfield v. Coryell, 4 Wash. C.C. 371, 6 F. Cas. 546 (C.C.E.D.Pa. 1823) (Washington, J.).
232. Ely, supra note 60, at 18.
233. Antonin Scalia, Constitutional Interpretation, Speech Given to the Woodrow Wilson International Center for Scholars, Washington, D.C. (Mar. 16, 2005).
234. The Slaughterhouse Cases, 83 U.S. 36 (1873).
235. So argued some years ago in Thomas, Clarence, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment , 12 Harv. J. Law & Pub. Pol'y 63 (1989)Google Scholar. The definitive modern historical study on this issue is Lash, supra note 229.
236. This is the purpose, value, or spirit that animates a body of rules. I explore the dimensions of this form of institutional support in Moore, Michael, Legal Principles Revisited , 82 Iowa L. Rev. 817 (1997)Google Scholar, reprinted in Moore, Educating Oneself, supra note 201.
237. Griswold, supra note 41, at 484.
238. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Neil H. Cogan ed., 1997).
239. The Declaration of Independence (U.S. 1776). Like Justice Thomas in our own day, Abraham Lincoln urged that the Constitution should be interpreted in light of the Declaration. See James McPherson, Abraham Lincoln and the Second American Revolution (1991), at 126.
240. The Virginia Declaration of Rights sec. 1 (1776).
241. “We the People of the United States, in Order to . . . secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”; U.S. Const. pmbl.
242. James Wilson , Of the Natural Rights of Individuals, 2 Lectures on Law: Collected Works of James Wilson pt. 2, ch. 12 (Hall, K.L. & Hall, M.D. eds., 2007)Google Scholar.
243. Obergefell, supra note 1, at 1. In light of this tradition I find the scorn heaped upon Kennedy's opening sentence by the ultimate traditionalist, Antonin Scalia, to be peculiar (such “mystical aphorisms of the fortune cookie [as Kennedy's quoted sentence]” would make Scalia “hide my head in a bag” if he had to sign onto them). Id. at 7-8 n. 29 (Scalia, J., dissenting).
244. Id. at 1-2 (Thomas, J., dissenting).
245. Jeremy Waldron's idea in his recent efforts to deny such moral justifications as may exist for “targeted killings,” any capacity to justify a legal practice of targeted killings. See Moore & Waldron, Ethics, supra note 220.
246. I defend this tie of law to judicial obligation in Moore, Responses, supra note 92, at 419–424.
247. McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819).
248. Kassel v. Consol. Freightways Corp., 450 U.S. 662 (1981). Justice Rehnquist's dissent in that case puts its finger on some of the difficulties of ascribing a motive for a composite body like a legislature: doing so “assumes that individual legislators are motivated by one discernible ‘actual’ purpose, and ignores the fact that different legislators may vote for a single piece of legislation for widely different reasons.” Id. at 702–703 (Rehnquist, J., dissenting).
249. Bailey v. Drexel Furniture Co., 259 U.S., 20 (1922). It is far from clear that the present Court is so enthusiastic about such a motive test for valid uses of the taxing power. See Sibelius, supra note 118, at 36, where Chief Justice Roberts for the majority upholds the health insurance mandate even though “it was plainly designed to expand health insurance coverage.”
250. Gomillion v. Lightfoot, 364 U.S. 339 (1960).
251. Id. at 341.
252. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
253. The Court's first adventure with liberty is conventionally dated from 1897 (Justice Peckham's opinion for the Court in Allgeyer v. Louisiana, 165 U.S. 578 (1897)) to the mid-1930s (somewhere between Nebbia v. New York, 291 U.S. 505 (1934) and West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)).
254. Lochner, supra note 42.
255. Id. at 62–64.
256. Id. at 57.
257. See John Chipman Gray, The Nature and Sources of the Law (2d ed. 1921) at 170: finding that “the thought of an artificial body must stagger the most advanced of the ghost hunters.”
258. As in, e.g., French, Peter, The Corporation as a Moral Person , 16 Am. Phil. Q. 207 (1979)Google Scholar. French, Waldron, and I had a three-way debate on the issue of legal personhood at the 1995 Greater Philadelphia Philosophy Consortium, University of Pennsylvania.
259. Thus Waldron asked French at the Consortium referenced above whether one such as himself (who holds corporations really to be moral persons) would prevent a wrongful corporate dissolution or save a human life if he could only save one of these two “lives.”
260. Kassel, supra note 248 at 702–703 (Rehnquist, J., dissenting). See also Justice Black's earlier opinion in Palmer v. Thompson, 403 U.S. 217 (1971), rejecting motive analysis for equal-protection contexts on Rehnquist-like grounds: it is “difficult or impossible for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choice of a group of legislators.” Palmer, 403 U.S. at 224–225. Justice Black's backup reason for rejecting motive analysis was that:
there is an element of futility in a judicial attempt to invalidate a law because of the bad motive of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.
This second worry of Black's sounds better than it is. For none of us has much power to choose the reasons for which we act (in marked contrast to our considerable power to choose the acts themselves). Purging oneself of some illicit motivation is not a matter of telling oneself a little story about why one is doing what one is doing and thereby make that story be true, as the courts have held in the context of landlords attempting to purge themselves of retaliatory motives for evicting tenants (under property law's retaliatory eviction doctrines).
261. Starting with Max Radin in his debate with James Landis; Radin, Max, Statutory Interpretation , 43 Harv. L. Rev. 863 (1930)CrossRefGoogle Scholar; Landis, James, A Note on Statutory Interpretation , 43 Harv. L. Rev. 886 (1930)CrossRefGoogle Scholar.
262. The list is culled from Moore, Semantics, supra note 25, which gives citations and examples.
263. Id.
264. For reasons that are by now well established; see id.; Radin, supra note 261; Dworkin, Ronald, The Form of Principle , 56 N.Y.U. L. Rev. 469 (1981)Google Scholar.
265. Moore, Semantics, supra note 25.
266. Id. The idea is also explored in MacCallum, Gerald, Legislative Intent, in Essays in Legal Philosophy (Summers, R. ed., 1968)Google Scholar.
267. As Max Radin persuasively urged many years ago. See Radin, supra note 261.
268. See Kassel, supra note 248, when the statements made by the Iowa governor were deemed relevant to ascertaining Iowa's protectionist purpose in prohibiting triple trailers of trucks on its highways.
269. Feeney, supra note 252.
270. Bowers, supra note 22, at 210 (Blackmun, J., dissenting).
271. Id.
272. Id. at 216 (Stevens, J., dissenting).
273. A paraphrase of Justice Peckham in Lochner, supra note 42, at 57. Notice that Peckham himself invites the application of such a maximum-hours law to lawyers as a kind of reductio of applying it to bakers.
274. Feeney, supra note 252; the redistributive example is a long-used reductio by the Supreme Court ever since Justice Chase used it in Calder v. Bull, 3 Dall. (3 U.S.) 386 (1798).
275. Griswold, supra note 41, at 527 (Stewart, J., dissenting).
276. Originally stated by Justice Harlan in Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).
277. Id.
278. This dismissal of preventing/punishing immorality as a proper reason for criminalizing often takes the form of refusing to acknowledge the obvious fact that the statute before the Court is justified by the legislature that passed it on precisely these moral grounds. See, e.g., Griswold, supra note 41, at 505 (White, J., concurring): “There is no serious contention that Connecticut thinks the use of artificial or external methods of contraception immoral . . . in itself.” See also Justice Blackmun writing for the Court in Roe: regarding the argument that a state's abortion prohibition could be justified as a means to discourage immoral sex, Blackmun retorted, “no court or commentator has taken the argument seriously.” Roe, supra note 40, at 148.
279. See the discussion of tradition in Section I supra.
280. As I argue in my surprisingly influential and successful criticism of California's then-Chief Justice, Rose Elizabeth Bird. See Michael Moore, Politics Is Not the Basis for Judging the Judges, L.A. Times, July 29, 1985; Michael Moore, Justices’ Personal Values Must at Times Give Way, L.A. Times, July 30, 1985; Michael Moore, Rose Bird Should Go, L.A. Times, July 31, 1985; these editorials were amalgamated into an article, Michael Moore, Activist Judging and Retention Elections, USC Law (Fall-Winter, 1986), at 24–27. Commissioned by the L.A. Times to review Bird's fifty-nine consecutive votes and opinions to reverse death penalty sentences, I came to the conclusion that she insufficiently weighted the conservative values of vertical precedent (to the U.S.Supreme Court's death penalty decisions) and of popular sovereignty (to the California electorate's amendment to the California Constitution making clear that death was a permissible punishment under that constitution) and should not therefore serve as a judge. There are two pertinent lessons that should be drawn from this tale: (1) there is some psychological danger that some judges will start dispensing unrestrained Kadi justice under a tree if they accept the lessons of this article (as did Rose Bird), even though (2) there is no logical implication that they should do so.
281. My good friend, the late John Kaplan, was addressing a collection of German criminal law professors at the Max Planck Institute at Freiburg in 1984 on the topic of ignorance of the law, and in the course of illustrating the widespread nature of legal ignorance noted the surprise of his Stanford law students when he told them that twenty-two states then considered oral sex to be the crime of sodomy. The German professors visibly tittered, not at the law students’ reactions but at the fact that America's criminal law was so comically puritanical. John responded to the tittering with the charge that the Germans were not less puritanical than the Americans, just less imaginative.
282. People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936 (1980).
283. The resting place for the disputed holding of Robinson v. California, 370 U.S. 660 (1962). See Powell v. Texas, 392 U.S. 514 (1968). Choice is necessarily involved in acting because of the voluntariness required for any bodily movement to be an action. See Michael Moore, Act and Crime (1993), ch. 6.
284. Turner v. Safley, 482 U.S. 78 (1987).
285. Zablocki v. Redhail, 434 U.S. 374 (1978).
286. Loving, supra note 120.
287. Obergefell, supra note 1.
288. Suggested in Moore v. City of East Cleveland, 431 U.S. 494 (1977).
289. NAACP v. Alabama, 352 U.S. 449 (1958).
291. Stanley v. Georgia, 394 U.S. 557 (1969).
292. Onofre, supra note 282.
293. Cruzan v. Dir., Missouri Dept. of Health, 497 U.S. 261 (1990).
295. Dist. of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S.742 (2010).
296. The Court has understandably been reluctant to federalize substantive criminal law, as Thurgood Marshall made explicit in his opinion for the Court in Powell, supra note 283. Yet the right to use deadly force to defend oneself or one's family was for centuries regarded by the common law as a natural right possessed by all persons and thus a legal right, even though not mentioned in English homicide statutes until the middle of the nineteenth century. Given modern libertarians’ persuasive insistence on the existence of such a right (as in, e.g., Hurd, Heidi, Can It Be Wrong to Do Right When Others Do Wrong? , 7 Legal Theory 307 (2001)CrossRefGoogle Scholar; and Hurd, Heidi, Stand Your Ground, in The Ethics of Self-Defense (Weber, M. ed., 2015)Google Scholar), the Court's beginnings in this direction should be seen as just that, beginnings, and not the full extent of our constitutional rights here.
297. Schad v. Mt. Ephraim, 452 U.S. 61 (1981).
298. Saenz v. Roe, 526 U.S. 489 (1999).
299. Griswold, supra note 41.
301. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
302. Meyer v. Nebraska, 262 U.S. 390 (1923).
303. Troxel v. Granville, 530 U.S. 47, 65 (2000).
304. Cruzan, supra note 293.
305. Glucksberg, supra note 45.
306. Argued at length in Michael Moore, The Nature of a General Constitutional Right to Liberty as Applied to the Right to Die, Keynote Address, Third Annual Student Congress of Constitutional Law and Theory, University of Chile, Santiago, Chile, August 23, 2007. The view there defended is that the prohibition of assisted suicide is triply invalid: such prohibitions are typically paternalistic in their motivation (thus violating the derived right to liberty); most suicides are not immoral to perform or assist (although some are) (thus violating the basic right to liberty's first safe harbor); and whether and how one ends one's existence is a fundamental choice as any we ever face (thus violating the basic right to liberty's second safe harbor).
307. Lochner, supra note 42.
308. Slaughterhouse Cases, supra note 231.
309. W. Coast Hotel v. Parrish, 300 U.S. 379 (1937).
310. See Chafee, Zachariah, Book Review , 62 Harv. L. Rev. 891 (1949)CrossRefGoogle Scholar; Redish, Martin, The Value of Free Speech , 130 U. Pa. L. Rev. 591 (1982)CrossRefGoogle Scholar.
311. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (“freedom to think as you will” is protected as much as the “freedom . . . to speak as you think”).
312. Id. at 375 (Brandeis, J., concurring) (“the final end of the State was to make men free to develop their faculties.”).
313. As in most of the Court's Free Exercise Clause cases.
314. As the Court held (as a matter of statutory, not constitutional construction) in its conscientious objector decisions of the Vietnam War era. United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970).
315. Bowers, supra note 22, at 203 (Blackmun, J., dissenting).
316. Eisenstadt, supra note 41, at 953.
317. And that, as Justice Blackmun once admitted, was in part due to the work of his then–law clerk, now Professor Pamela Karlan, who wrote the first draft of the opinion.
318. Bowers, supra note 22, at 217 (Stevens, J., dissenting), quoting Fitzgerald v. Porter Mem. Hosp., 523 F 2d 716, 719 (7th Cir. 1975) (Stevens, J.).
319. Bowers, supra note 22, at 204.
320. Id. at 205.
321. Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984)).
322. Id.
323. Id. (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973)).
324. Mill, supra note 127, at 76.
325. Id. at 75.
326. This roughly corresponds to Harry Frankfurt's notion of “second-order” mental states. See Frankfurt, Harry, Freedom of the Will and the Concept of the Person , 78 J. Phil. 5 (1971)CrossRefGoogle Scholar.
327. The subject of a well-known book, Richard Brickner, My Second Twenty Years: An Unexpected Life (1976).
328. Still, my sense is that one who chooses to have children—even if done thoughtlessly and on a moment's whim—makes a self-defining choice because of the large causal impact such a choice will have on his life. Such large impact will predictably accompany the latter type of choice but not the former, even when the maker of the choice fails to make the prediction.
329. In Moore, Michael, Responsible Choices, Desert-Based Legal Institutions, and the Challenges of Contemporary Neuroscience , 29 Soc. Phil. & Pol'y 233 (2012)CrossRefGoogle Scholar, I separate the view that our choices are caused by factors themselves unchosen (determinism) from the view that our choices do not cause the object of those choices to be realized (epiphenomenalism).
330. See Michael Moore, Authority, Law, supra note 202, at 878–882.
331. T.H. Huxley, On Descartes’ Discourse on Method, in Methods and Results (1893), ch. 4.
332. For other explications of the value of self-definition, see Stanley I. Benn, A Theory of Freedom (1988), at 155–156, 170–183; Gray, John, Mill's Conception of Happiness and the Theory of Individuality, in J.S. Mill: On Liberty in Focus (Gray, J. & Smith, G W. eds., 1991)Google Scholar; Thomas E. Hill, Jr., Autonomy and Self-Respect (1991), at 29–37, 43–51.
333. Randy Barnett sees choices as varying on a smooth continuum in the degree of insulation they deserve to preserve liberty. Barnett, Randy, Scrutiny Land , 106 Mich. L. Rev. 1429 (2008)Google Scholar; Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).
334. The apparent view in Raz, Morality, supra note 103 (although Raz is here speaking of the autonomy that gives value to liberty and not liberty itself).
335. See Leo Katz, Why Is the Law So Perverse? (2011), for examination of the rationality of imposing bivalent or trivalent categories on phenomena that is continuous.
336. As exemplified in, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955).
337. “Toothy rational basis” review is about as specific as one should want here. For we do not need a new talisman for the standard of review; rather, we need a new attitude by judges about the degree of the appropriate step back from their own judgment as they review the work of legislatures here.
338. Roe, supra note 40, at 162.
339. This point was driven home to me by the reactions of my Chinese hosts to my lecture on liberty given to the Law, Philosophy, and Political Science Departments of Hong Kong University in 2013; the Chinese experience with overpopulation has made their views on the liberty to choose family size much more subject to the kind of consequentialist override discussed in the text.
340. Why this is so is a complicated business. I urge elsewhere that deontological morality is not only “agent-relative” (each moral norm is directed to each one of us requiring that we not contaminate our own moral agency) but is also “victim-relative”; Moore, Act, supra note 283, at 362. Briefly, the argument is that when we do the same kind of wrong with a single act—as by killing multiple victims with a single shot—we do not one but multiple wrongs because we do a separate wrong to each victim. Separate wrongs must be for breach of separate obligations, because it is not open to us to argue that one obligation was breached multiple times; the latter, because there was only one act. For agreement with this, see Yaffe, Gideon, Moore in Jeopardy Again, in Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Ferzan, K. & Morse, S. eds., 2016)CrossRefGoogle Scholar; for disagreement, see Goldman, Alvin, Action and Crime: A Fine-Grained Approach , 142 U. Penn. L. Rev. 1563 (1994)CrossRefGoogle Scholar. Even if legislators are outside the scope of deontological norms by reason of the generality of their actions, one might think that legislatures nonetheless will often foresee or even intend that other legal officials (i.e., judges) will be ordering particular women not to have an abortion if they, the legislators, prohibit abortion by general legislation. Yet such foreseen or intended aiding or procuring of another to violate his categorical obligations is not itself categorically prohibited, even when the aider/procurer subsequently benefits from the violation; see Moore, Causation, supra note 113, at 42–51.
341. Trial courts applying legislation restricting some particular woman's right to have an abortion do not have this luxury. Their moral calculation is thus different from the calculation of legislatures and appellate courts in Roe-like situations. This might sound counterintuitive until one remembers that generally there can be a “gap” in the moral spaces inhabited by different institutional players. See Alexander, Larry, The Gap , 14 Harv. J. Law & Pub. Pol'y 695 (1991)Google Scholar.
342. Roe, supra note 40, at 156–158.
343. And even here the woman's right might well prevail, as Judith Thomson's famous violinist example was intended to show; Thomson, Judith, A Defense of Abortion , 1 Phil. & Pub. Aff. 47 (1971)Google Scholar.
344. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 195 (1978).
345. Plato, Theaetetus (Benjamin Jowett trans., 1898).
346. Justice Blackmun co-founded the annual Justice and Society Seminar of the Aspen Institute, e.g., which discussed such items as the Hart-Devlin debate in England on the legal prohibition of homosexuality.
347. Or put more exactly, sometimes books can speak only to those who have passed through certain experiences. See Richard Hare, Freedom and Reason (1963), where Hare in his preface admonishes his readers that they may need to return to his book only after they have had sufficient moral experience to understand its questions and its answers.
348. Obergefell, supra note 1, at 7 (Scalia, J., dissenting) (emphasis in original).
349. Id. (emphasis in original).
350. Id. at 3 (Roberts, C.J., dissenting).
351. The Federalist No. 78 (Alexander Hamilton).
