"On Liberty" Is On Sovereignty

Chief Justice Roberts in his dissenting opinion in Obergefell v. Hodges, 576 U.S. 644 (2015) blithely sniped, “the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty.” Justices Scalia and Thomas joined that opinion. But even three wrongs don’t make a right. The three justices’ hasty conclusory contention was obviously wrong about our rights. Their wrong dangerously undermined our rights. It has great potential to undermine our rights even more. Too may judges and lawyers love to leverage such careless whispers into oppressive precedent (as some already have).

To see that they were wrong, the three justices, above, need not have looked far. They could have looked, for example, to the futility of the dissenting opinion of Justice Scalia, which Justice Thomas joined, in Lawrence v. Texas, 539 U.S. 558 (2003).

SCOTUS in Lawrence declared essentially the opposite of the three justices, above. Lawrence was based explicitly on “liberty” in “the Fourteenth Amendment,” and the first words of the majority opinion were powerful:

Liberty protects the person from unwarranted government intrusions into [ ] private places. . . . [It protects] spheres of our lives and existence [ ] where the State should not be a dominant presence. [ ] Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. [Our Constitution secures] liberty of the person both in its spatial and more transcendent dimensions.

“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression.” That principle was articulated even more clearly, forcefully and appropriately in Citizens United v. FEC, 558 U.S. 310 (2010). SCOTUS expressly recognized that such liberty and related rights really meant sovereignty.

SCOTUS (in an opinion in which Chief Justice Roberts and Justices Scalia, Thomas and Alito joined) emphasized that in our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential” to their sovereignty. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”

Thinking and speaking about government is the primary purpose of government. It is the primary duty of our representatives in government, our public servants. Thinking and speaking about government are the primary powers of sovereigns. Thinking and speaking about government is the primary point of sovereignty.

To properly understand the Fourteenth Amendment, judges need only read it and see it in the light of what preceded it. As previously highlighted, In Alden v. Maine, 527 U.S. 706 (1999), the SCOTUS majority in Alden (including Justices Scalia and Thomas) emphasized that “the Constitution begins with the [powerful, fundamental] principle that sovereignty rests with the people.” They emphasized that principle because (as they highlighted) our Constitution begins with the Preamble expressly emphasizing that “the people” did “ordain and establish the Constitution.”

Four justices in a dissenting opinion were far more powerful and explicit about the power of sovereign citizens. They emphasized the opinions of three Framers, including two SCOTUS justices “in Chisholm v. Georgia” in 1793 “a bare two years” after “the Bill of Rights,” including “the Tenth Amendment,” was “added to the original Constitution.”

Significantly, the Ninth and Tenth Amendments were instructions (especially to judges) on how to see our sovereignty. Every SCOTUS justice knows this. The Ninth Amendment emphasized that all “rights” were “retained by the people.” The Tenth Amendment emphasized that only “powers” (only limited powers) were “delegated to the United States by the Constitution,” and some “powers” were “prohibited” to “the States,” and all “powers” that were not “delegated” by “the people” to public servants in federal or state government were “reserved” to “the people.”

Like the Ninth and Tenth Amendments, the Fourteenth Amendment instructed (especially judges and states) on how to see our sovereignty. Amendment XIV Section 1 began by emphasizing which persons were sovereign: “All” (and only) “persons” who had been “born or naturalized in the United States” are “citizens.” Amendment XIV (Section 2) and later Amendments XV, XIX, XXIV and XXVI further clarified who possessed one of the primary powers of political sovereignty, i.e., suffrage. Those amendments highlighted that speech, including suffrage (the right and power to vote regarding our representatives, our public servants), was the primary power of political sovereignty.

Lawrence, above, and the Bill of Rights served primarily to emphasize the personal sovereignty of citizens, the sovereignty of each person over herself.¹ They emphasized powers that were not delegated to (at least) the federal government. To (further) emphasize the nature of our sovereignty, the Fourteenth Amendment, like the Tenth Amendment and Article I, emphasized that certain powers were prohibited to the States.

“No State” (no government) has any power to “make or enforce any [purported] law” that “abridge[s any] privileges or immunities of [U.S.] citizens” or any power to “deprive any person of life, liberty, or property, without due process of law” or to “deny to any person” the “equal protection of the laws.” The Fourteenth Amendment stated “No State,” but when read together with the already existing Constitution (including the parts, above), the Fourteenth Amendment necessarily and clearly meant “not even the states.” It emphasized powers that the sovereign people withheld from all governments in America.

The Fourteenth Amendment echoed and amplified Article IV (emphasizing “all Privileges and Immunities of Citizens” and our “Republican Form of Government”) and Amendment V (“No person” may be “deprived of life, liberty, or property, without due process of law”).²

American judges must be mindful of the fact that the Fourteenth Amendment powerfully and repeatedly emphasized American sovereignty, i.e., the sovereignty of the people. American judges purporting to teach us how to understand the significance of Mill’s writing also must bear in mind that John Stuart Mill was British.

Madison in 1800 and a unanimous SCOTUS in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) emphasized the obvious and profound implications of the fact that Mill was a British subject, not an American citizen:

Madison [emphasized that our original] Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government [prescribed by our Constitution] dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown [or Parliament] was sovereign and the people were [mere] subjects.

In On Liberty, Mill wrote about the liberty of British subjects. It should be clear to anyone who understands our Constitution that a vast difference separate American citizens from British subjects. This vast difference is American sovereignty, as was explained in A Tale of Two Sovereignties (or Two Tales of Sovereignty).

It should be clear to anyone who understands the animating principle of our Constitution that Mill’s conception of liberty is not merely analogous to American liberty in the Fifth and Fourteenth Amendments. It is analogous to American sovereignty. When Americans (including American judges) read On Liberty, we must think of our liberty (our rights) as reflecting and flowing from our sovereignty. Mill even made it very easy for us to see our sovereignty in his liberty. He used the words independence and sovereignty.

The Fourteenth Amendment was carefully considered and written by Congress in 1866, expressly to protect our liberty. The people had ratified it by 1868. Not long before that process started, in 1859, Mill published On Liberty. Mill prominently highlighted the obvious manner in which our “liberty,” “independence” and “sovereignty” were secured by the Fourteenth Amendment (and every amendment in our Bill of Rights, and even our entire Constitution).

[Only] one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control . . . . The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.³

That same paragraph is well worth considering more fully:

[Only] one very simple principle [must] govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any [member of society] is self-protection [of another member of society or society, generally]. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. [A person’s] own good, either physical or moral, is not a sufficient warrant. [A person] cannot rightfully be compelled to do or forbear [anything merely] because it will be better for him to do so, because it will make him happier, [or] because, in the opinions of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil [punishment or other injury] in case he do otherwise. To justify that [imposing any punishment on a person], the conduct from which it is desired to deter him must be calculated to [prevent some] evil [being done] to someone else. The only part of the conduct of anyone for which he is amenable [answerable] to society is that which concerns [affects] others. [Regarding any action of a person] which merely concerns [affects] himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

James Wilson, teaching and writing about the law while he served as a SCOTUS justice, had taught Americans something similar. Wilson repeatedly wrote to emphasize the sovereignty of the people. He also emphasized “leading principles” that flow from citizens’ sovereignty. “[T]he law should impose no restraint upon the will of the citizen,” except to the extent that such restraint “will be productive of advantage, publick or private, sufficient to overbalance the disadvantages of the restraint.” “The [burden of] proof of this advantage” also necessarily “lies upon the legislature [the government]. If a law is even harmless; the very circumstance of its being a law, is itself a harm.” Obviously, “government and human laws are necessary” but “they are a burthen and a yoke: they should resemble that yoke which is easy, and that burthen which is light.”

The scattered parts of our Constitution and the SCOTUS precedent, above, made essentially the same point as Mill managed to make in a single paragraph. Mill’s writing says something about judges’ writing. Seeing our sovereignty is hard only because judges make it hard. Assertions such as “the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty” add no value at all. If they add anything at all, it is unnecessary burden, confusion and difficulty to impede the path and slow the progress of Americans who seek the simple truth about our Constitution.

As many times (and as vigorously) as Chief Justice Roberts and Justice Thomas have opposed the principle stated in Lawrence, above, (and especially because they emphasized such opposition in Obergefell by specifically invoking On Liberty) it is implausible that they do not understand that our liberty and sovereignty are essentially the same as Mill’s liberty and sovereignty. Such implausibility is only accentuated by the many times that those justices, personally, have emphasized the powerful and important sovereignty of the people (or considered the writing of other justices emphasizing that principle). See, e.g., SCOTUS Justices’ Own Words Prove Extreme Deceit (and Irrelevance) of Trump Immunity Decision Part I and Part II.

1. In Lawrence, SCOTUS emphasized that the liberty at issue included the liberty and right at issue in Roe v. Wade. “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause” of the Fourteenth Amendment “has a substantive dimension of fundamental significance in defining the rights of the person.” Mill said something similar. See footnote 3, below.

2. Two particular federal statutes further amplified the language of the foregoing parts of our Constitution (and the sovereignty of the people)—and every SCOTUS justice is well aware of those statutes and their text. SCOTUS addressed one statute (18 U.S.C. 241) in Trump v. United States because Trump is being prosecuted under it for his misconduct when he was the president. Any “two or more persons” (including judges) who “conspire” to in any way “injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to” them “by the Constitution” or federal “laws” or “because of” their “having so exercised” any such “right or privilege” commit a crime. A closely-related statute (18 U.S.C. 242) addresses anyone who acts alone. “Whoever” (including any judge) acts “under color of any law” or any judicial “custom” to “willfully” deprive “any person” of “any rights, privileges, or immunities secured or protected by” any provision of the “Constitution” or federal “laws” commits a crime.

3. Mill immediately clarified that his conception of sovereignty excluded “children” and “young persons below the age which the law may fix as that of manhood or womanhood” or people disqualified by “race” in “backward states of society.” With his allusions to sovereignty and to race, Mill seemed to accentuate that he was speaking about the U.S.

Mill subsequently added the following crucial elaborations, which reflect the personal sovereignty secured by our First Amendment:

[T]he appropriate region of human liberty [ ] comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. . . .

No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.