Monday, October 31, 2005

Software patents paper

In my previous entry I mentioned the software patents paper I wrote a few months ago, and I have now put it online. In this paper I describe how software came to be patentable in the United States despite the Supreme Court's holdings that "mathematical algorithms" are unpatentable.

I now reiterate the recommendation I made in the paper: the Supreme Court should reverse the Federal Circuit's holding in Metabolite based on the subject matter limitation in 35 U.S.C. 101. It should analyze subject matter patentability based on the Neilson test as applied in Parker v. Flook and clarified in the paper.

Supreme Court takes patentable subject matter case

The patent world was surprised today by the news that the Supreme Court will hear the case Laboratory Corp. of America v. Metabolite Laboratories. The case involves the scientific discovery that levels of homocysteine in the blood can indicate a deficiency in two B vitamins. But how the Supreme Court resolves the case may also have substantial implications for the patentability of business methods and even of software. We could get at least one strong opinion from at least one justice (John Paul Stevens) that from the point of view of today's patent practice would be very radical. Such an opinion, described below, would imply the invalidation not only of the kind of scientific discovery claim in Metabolite, but also business method patents and almost all software patents. It is unknown whether there are enough justices to make this a majority opinion. The profound implications of such an opinion suggest that the Court may punt and decide the issue on other grounds.

Section 101 of the U.S. patent statute (Title 35) states that patentable subject matter is limited to four broad categories: "process, machine, manufacture, or composition of matter..." This implies, presumably, that there other categories that cannot be patented. For example, "algorithms" and "laws of nature" are two areas the Supreme Court has previously stated could not be patented. (Why algorithms are nevertheless now routinely patented is the subject of a paper I wrote last year -- I will attempt to summarize below). The definition of what can and cannot be patented has changed over time. The Supreme Court typically took a narrow view, for example in the Funk Brothers and Flook cases. However, the most recent Supreme Court 101 subject matter cases, Chakrabarty and Diehr, took a broader view. Diehr led to the modern view that software can be patented. The Federal Circuit has tended to ignore the restrictive cases, allowing software to be patented and, in the 1998 State Street case, allowing business methods to be patented.

Recently the United States Patent Office decided to align itself more closely with the Federal Circuit and loosen up its restrictions on patenting business methods. But today, the United States Supreme Court surprised the patent world by saying that it will hear the appeal in Metabolite. In this case, the "inventor" discovered a law of nature, namely that elevated levels of homocysteine in the blood tend to indicate a deficiency in the B vitamins cobalamine or folate. To take advantage of this discovery, the "inventor" claimed (in claim #13):

13. A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of:

assaying a body fluid for an elevated level of total homocysteine; and

correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate.

There is nothing novel about testing the blood for levels of homocysteine. The only novel and non-obvious part of the claim is the scientific discovery, the "correlating" step. If the claim is taken "as a whole," it (and any properly written claim covering any subject matter) passes muster under Section 101. If, however, focus is put on the subset of the claim that contributes to its novelty and non-obviousness, that portion of the claim will fail as a forbideen "law of nature."

Here is how the Supreme Court in its opinion granting the appeal expressed the issue:

Whether a method patent setting forth an indefinite, undescribed, and non-enabling step directing a party simply to “correlat[e]” test results can validly claim a monopoly over a basic scientific relationship used in medical treatment such that any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result.

This will be the first time in over a decade that the Supreme Court has heard a case on this subject -- a decade that saw the end of restrictions on software patents (despite "algorithms" being unpatentable) and the rise of business method patents.

So why can software be patented despite "algorithms" being a forbidden subject matter under Flook and Diehr? Because clever drafters have added gratuitous steps or elements so that a patent claim, interpreted "as a whole," involves more than just an algorithm. For example, if you discover a new algorithm, you can patent that algorithm running as a computer program on a "device with memory." The "device with memory" is a gratuitous element, in that it does nothing to add to the novelty or the non-obviousness of the claim. It is only there to turn unpatentable subject matter into patentable subject matter.

There is an old methodology that would have prevented such clever drafting to get around the 101 subject matter restrictions. It comes from the old British Nielson case. This methodology essentially says that, for purposes of determining whether a claim covers patentable subject matter, you don't look at the "claim as a whole," (the Diehr test), but instead just look at that subset of the claim that is the inventive contribution. In other words, look at only those elements or steps that contribute to the novelty or non-obviousness of a claim.

The Nielson test was followed by the Supreme Court in expressly in cases from O'Reilly v. Morse (yes, that Morse, the telegraph case) in the 19th century to Flook in 1978. Had Flook been followed, most software and business methods would be unpatentable in the U.S. today.

The most rational, but also most radical, way for the Court to resolve Metabolite would be a return to the Neilson/Flook test. Rational, because it's the only proven test we have for enforcing forbidden categories of patentable subject matter, whether they be "laws of nature," "algorithms," or business methods. Radical, because it would invalidate at a stroke not only the Metabolite-style discovery-based claims and business method patents, but almost all U.S. software patents as well. Justice John Paul Stevens wrote the Flook opinion in 1978 and is the only justice from that era still on the Court. So there is a good chance that we will at least get a strong dissent along these lines. However, the more likely majority outcome will, if it overturns the patent, do so on the more narrow grounds that it involves a mental step ("any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result") or that it fails the 112 written description standard.

Sunday, October 30, 2005

Automobile privacy features news on the law and politics of driving. Especially interesting is the section on surveillance and privacy on the road.

Are intellectual property rights natural?

Tom Bell and Glenn Whitman have engaged in an interesting debate over to what extent intellectual property rights conflict with tangible property rights, and to what extent intellectual property rights, like tangible property rights, are natural rights.

Roughly speaking, Bell defines natural rights as those rights that would emerge in a "state of nature," i.e. in the absence of government law enforcement. Bell correctly observes that real and personal property rights would emerge, but argues that at least generally intellectual property rights would not. I think this is only partially true.

One poster responds with the example of symbols of office or other social status (jewelry, seals, feathers, etc.) that exist in all civilizations and most neolithic and hunter-gatherer tribes. I'd add that in England, at least, offices themselves were property rights. Indeed, English feudal and royal titles have followed for at least centuries the same inheritance rules as those for real property, and were categorized in common law as property (Blackstone described this well). Furthermore, trademark emerged in the common law, suggesting it would also emerge in the absence of the state. Academic norms of anti-plagiarism are a form of IP-like rights that we can observe today being enforced outside of government. The Domain Name System (DNS) on the Internet, and the related Internet Protocol address space, were enforced without the formal legal recognition of rights in these areas long before the DNS was discovered by the government legal system. Indeed, title in tangible property implies a similar right to an accurate public attribution of who owns what rights. The common law of defamation gives a person some further rights in the accuracy of communications of others regarding oneself.

Trademark, DNS, plagiarism, and defamation are rights of accuracy in labeling, attribution, and other descriptions related to a person. There are some natural rights to demand of another person's communications that they accurately label and attribute objects and content related to oneself in certain ways, such as ownership or origination.

It's harder, though, to argue that copyright and patent have natural rights analogs. One has to go from a right that a content or idea (as well as property and self) be properly attributed to a person, to imputing to that person a right to exclude others from communications of that content (copyright) or use of that idea (patent), despite that content or idea being instantiated in somebody else's personal property.

The predecessors of copyright were the rights of lords and bishops to control speech and writing within their domain -- a dubious origin given our First Amendment ideals. Copyright still conflicts with free expression. P2P networks originated as proposals for networks that it would be impossible for repressive governments to censor. It turns out, though, that censorship-free networks are also copyright-free networks. Copyright and censorship both rely on having “gatekeepers” who the government can coerce in order to control content. The state of nature on the Internet is copyright-free as well as censorship-free.

In summary, it's much harder to justify as natural law copyrights and patents than legal areas like trademark and defamation that involve the accuracy rather than ownership of information.

Friday, October 28, 2005

Civil liberties in the forever war

The late Chief Justice William Rehnquist entitled his book on the history of civil rights during wartime "All The Laws But One." The title is from a quote by Abraham Lincoln complaining about the judicial system's protection of the rights of alleged conspirators even during the Civil War: "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" The "one" law being the liberty the court was trying to preserve. This is one of the most abused quotes in American legal thought, and it has seldom been abused as often as it is being now.

First of all, even from Lincoln the question was rhetorical and the rhetoric was exaggerated. Even had the North lost the Civil War, some very desirable laws would have taken a beating (e.g. laws that ended up being promulgated to ban slavery in the South), but the execution of most other laws would have gone ahead as before. Furthermore, most of the cases being adjudicated typically occurred well away from enemy lines and in late stages of the war when there was no serious danger of the South winning.

Nevertheless, Abraham Lincoln faced a far more difficult problem with the execution of the laws than governments fighting the "War on Terror" face today. When Lincoln made this quote it was plausible; applying it to today's situation is not. Despite the difficulties the Union faced, its judiciary endeavored to preserve the rights of civilians against military encroachment. One very good result of that, which should be closely heeded by Courts today, is Ex Parte Milligan. Despite a Civil War far more damaging to the normal execution of the laws than any imminent threat the United States has ever faced since, the Court held for liberty in wartime against the encroachment of authoritarian military justice.

Civil liberties take their greatest hits during wartime. First Amendment rights were violated in the United States after the French Revolution when the States were threatened by further rebellion and being drawn into the ensuing war between England and France. They were again trampled upon during World War I. The Holocaust in Germany and Korematsu in the United States occurred during World War II. Vigilance in protecting our liberties is at no time more important than during a perceived or actual "war."

Many argue that today we are again at war: the "War on Terror." If the Soviet Union had attacked the United States on 9/11, we would have gone to war with them, so the argument goes. Actually, the Soviet Union did attack the passenger airplane of a close ally, South Korea, killing several hundred people including many United States citizens and a United States Congressman. There was no serious argument at the time that this was an act of war. An act of war occurs not merely from an attack, but from an attack that seriously damages our military and threatens our territory, for example the Japanese attack on Pearl Harbor. That attack was no isolated attack for the sake of killing people and making headlines, but a very serious and, at least initially, very successful attempt to destroy American naval might and capture large pieces of its territory (e.g. the Philippines) and territory of its allies (French Indochina, Dutch Indonesia, etc.) Al Quaeda is full of some very sick people and stirs up quit a bit of torrid television coverage, but it is not a threat comparable to Imperial Japan.

Unlike earlier wars fought between governments to a conclusion, a "War on Terror" will last forever. It's like fighting a "War on Blitzkrieg" or a "War On Drugs" or a "War on Murder." Terrorism is a particularly evil type of violence that has plagued humankind since the dawn of history, and there is no sign that the evils of terrorism will be eliminated any time soon.

Professor Burt Neuborne of New York University School of Law compares the authoritarian military justice system with our civilian justice system. Some societies, such as China, have a justice system runs as if the society was in a permanent state of war -- as indeed might characterize the antagonistic relationship between Party members and the rest of society there. In the United States the justice system is bifurcated, with the authoritarian military justice system reserved for military personnel or enemies in war.

Neuborne observes that the authoritarian system that typically takes over governments during wartime makes three large errors in the pursuit of security that impact liberty: it overstates risks, it generates many false positives (i.e. persecutes people thought to be risky but actually innocent), and it is overly harsh. The current abuse of Lincoln's quote is an extreme example of overstating the risks. The Jews killed by Germany and the Japanese interned by the United States are extreme examples of false positives, and, at least of the former, of overly harsh reactions.

We must thus confront the question: are we to compromise our constitutional liberties and natural rights for the sake of a "war" of a very different kind and degree faced in Ex Parte Milligan? Assuming we are indeed at war, with an enemy that wears no uniform and may include American residents and American citizens, who gets to decide who is an "enemy combatant,” to be herded into the authoritarian military justice system, and who is just another alleged criminal with full constitutional rights? Those among us who long for more authority and destruction of liberty on the model of China, Nazi Germany, the Soviet Union, or some aspects of the United States itself during World War II, or who negligently ignore these nasty lessons of history, let their pining for security overcome them and argue that we can trust the authoritarian military justice system. In a free society it is the civilian courts, or at least courts with procedural protections comparable to the civilian courts, that ought to make that initial determination. In a free society it is the civilian courts under the fully unfurled umbrella of a constitution which should thereafter handle people who are not enemy combatants of a war power that threatens the very execution of our laws, but are just particularly evil and destructive criminals.

Negative rights and the United States Constitution

Wikipedia has a good short article on the distinction between negative and positive rights. "A negative right is a right, either moral or decreed by law, to not be subject to an action of another human being (usually abuse or coercion)." To use Justice Brandeis' famous phrase more broadly than he used it, negative rights are "rights to be left alone." All civilized legal systems beyond the village or tribal level have been systems of negative rights. For example, Anglo-American common law defines spheres of personal space which other persons must not invade -- especially spheres involving the body, residence, possessions, and property. The only way to create positive rights in traditional common law is to personally agree to them -- i.e. to make a contract.

The United States Constitution was drafted by people who, at least for amendments made before the 1930s, defined rights as negative rights. Thus, when the Constitution in the Fourteenth Amendment protects the "life, liberty, or property" and "equal protection of the laws" to "any person," it is referring to acts which government must refrain from doing, not to any positive duty of the government to act. The only time the government has a positive duty to act is when it has already deprived a person of liberty (e.g., prisoners, and arguably children compelled to attend public schools). Unfortuneately, the Court since the 1940s has departed sharply from this basci tenent of civilized law. It has read positive rights into the Constitution, thereby depriving citizens and other persons of negative rights to which we are entitled.

Thursday, October 27, 2005

Patent law reform in the U.S.

If you are a United States citizen and interested in our patent laws, now is the time to write your Congressman, or to lobby your company's lobbyist. The largest patent reform since 1952 is slowly working its way through Congress. Here are a brief description of the proposals and some links , the proposed amendments themselves, and the current Title 35 which contains almost all of the statutory law on patents in the United States.

Janice Rogers Brown

For Associate Justice of the Supreme Court I recommend that President Bush nominate Judge Janice Rogers Brown, formerly a justice on the California Supreme Court and currently a judge on the United States Court of Appeals for the District of Columbia Circuit.

Alternatively I would recommend Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit.

Wednesday, October 26, 2005

Blackberry e-mail injunction

Chief Justice Roberts has denied RIM's request to stay an injunction by the trial court that might soon shut down RIM's Blackberry e-mail system, which has been held to violate NTP's United States wireless e-mail patent. The Supreme Court is still considering RIM's petition for writ of certiorari (i.e. whether to take the case on appeal). The Federal Circuit held that RIM's distributed system in North America, with a relay server located in Canada and some of the Blackberries and their users located in the United States, violated NTP's United States patent for a distributed e-mail system involving wireless devices and a relay.

Tuesday, October 25, 2005

Anti-phishing bills and "unauthorized access"

The spate of anti-phishing bills currently making their way into or through legislative bodies around the world provide a good opportunity to do something that is long overdue -- amend our obsolete and destructive cybercrime statutes. If network security professionals are to be empowered to stop phishing and prevent cyberterrorism, a major overhaul to these statutes is crucial.

The Cuthbert case in the U.K. has provided yet another example of an unjust conviction under cybercrime statutes. These statutes were typically enacted before the advent of the Web and generally make "unauthorized access" to a computer a crime. Under these statutes, the Web equivalent of pushing on the door of a grocery store to see if it's still open has been made a crime. These vague and overly broad statutes put security professionals and other curious web users at risk. We depend on network security professionals to protect us from cyberterrorism, phishing, and many other on-line threats. These statutes, as currently worded and applied, threaten them with career ruin for carrying out their jobs. Cuthbert was convicted for attempting to determine whether a web site that looked like British Telecom's payment site was actually a phishing site, by adding just the characters "../.." to the BT site's URL. If we are to defeat phishing and prevent cyberterrorism, we need more curious and public-spirited people like Cuthbert.

Meanwhile, these statutes generally require "knowledge" that the access was "unauthorized." It is thus crucial for your future liberty and career that, if you suspect that you are suspected of any sort of "unauthorized access," take advantage of your Miranda (hopefully you have some similar right if you are overseas) right to remain silent. This is a very sad thing to have to recommend to network security professionals, because the world loses a great deal of security when security professionals can no longer speak frankly to law-enforcement authorities. But until the law is fixed you are a complete idiot if you flap your lips. Since almost any online activity of which, it turns out, the web site operator does not approve may be deemed to be "unauthorized," these cases revolve around whether the defendant "knew" that the act was "unauthorized." In Cuthbert's case, because he told the police that his purpose had been to test the public site's access controls (the equivalent of pushing on doors of a grocery store to see if it is open) to see if he had just given his credit card number to a phishing site -- a laudable act of due diligence in this age of phishing and identity theft -- he essentially admitted to the difficult knowledge element of the criminal statute. After that, the conviction was a slam dunk.

Several years ago, network security professional Randall Schwartz engaged in a traditional friendly competition with security professionals in another company to try to find holes in their security. That company turned out to be not so friendly and Schwartz was convicted under an Oregon statute similar to the one that felled Cuthbert. The court rejected a defense of unconstitutional vaguenessbecause, said the court, it sounded more like a defense of overbreadth. In fact these statutes are both vague and overbroad, but courts often do not understand the issues involved.

Orin Kerr (a professor at my law school) has written a good paper on the subject with respect to laws in the United States.

Kerr recommends using more specific language instead of "unauthorized access." My own recommendation is that, if we are going to keep the "unauthorized access" language, it at least should be amended along the following lines:

(1) an access should not be defined as "unauthorized" unless either the defendant was provided notice of lack of authorization (equivalent to a no-trespassing sign) and affordance (a barrier that requires some intentional act to pass, equivalent to a fence or a door), or there is a long-standing and widely-known custom that the kind of access as perceived by the defendant was unauthorized, or both, and
(2) there should be no crime unless there was an underlying intent to use the unauthorized access to commit another kind of crime (such as theft of data, trespassing via disruption of computer operation, etc.)

Under (1), "unauthorized access" would for the first time have a clear definition, similar to how "trespassing" is defined in the context of a public place (you are authorized to enter a public store when it is opened, to push on the door to see if the store is open, to shop, in some jurisdictions to use the restroom unless there is a sign to the contrary; but you are not to enter the back room where they have the safe). Security professionals would operate under the same rules as everybody else instead of having knowledge discriminatorily imputed to them because they are "supposed to know better."

Under (2), accesses done for laudable purposes, such as Cuthbert's investigation about whether his credit card had been phished, would no longer be considered criminal. Network security professionals would be freed to do their jobs and protect the Internet from real criminals.

The current spate of anti-phishing bills currently making their way into or through legislative bodies around the world provide a good opportunity to amend cybercrime statutes -- to bring them into the twenty-first century world of the public web.

Monday, October 24, 2005

Patents and borders

It's becoming common to patent distributed systems. For example, you might have a patent on server software S and client software C, where a person deploying server software S' and client software C' would infringe the patent. But if S' is in Canada, and the C's are (at least in part) in the United States, does that also infringe the patent S+C? And if so, where? That's the big issue in NTP v. RIM, the "Blackberry case."

The latest news is that the district (trial-level) court will go ahead and move the case forward on remand while the case is appealed to the United States Supreme Court and the USPTO reexamines NTP's e-mail patents at the urging of RIM. One of the issues the district court will look at is whether NTP reached a settlement with RIM for $450 million. NTP wants more!

Sunday, October 23, 2005

A world of vouchers

Over a hundreds years ago, John Stuart Mill had this vision of a world of school vouchers instead of the government-dictated curriculum that is the current dominant model of public education. Government-dictated curriculum features listening and speech compelled by a command-and-control hierarchy. Control over this curriculum is the source of endless conflict between irreconcilable opinions. Government-compelled speech and listening flies in the face of freedom of expression in a marketplace of ideas that is the hallmark of a free society. Mill proposed an actual marketplace for schools. The Institute for Justice is leading the legal effort to implement this marketplace of ideas for parents and their children in the United States.

New writing -- The Birth of Insurance

I'm writing a book on the history of commercial institutions. I've broken down a section on the birth of insurance into a separate article. It highlights an early marine insurance contract and discusses Santera's pioneering work on the law and economics of risk.

Thursday, October 20, 2005

Manual of Patent Examining Procedure (MPEP)

The United States Patent & Trademark Office has made available the new version (8th edition, 3rd revision) of the Manual of Patent Examining Procedure (MPEP) online in PDF.

Wednesday, October 19, 2005

Surveillance and technological "neutrality"

"Technological neutrality" is a hot topic in government surveillance law. It posits that new technologies (such as WiFi and cryptography) that enhance privacy should be required, by law, to be altered in order to provide governments the same amount of ability to spy on private conversations as they had with previous technology. The argument is that we must decrease our legal rights in order to hold constant governments' abilities to spy on us.

A big assumption lies in choosing the technological baseline of surveillance. Usually this is, conveniently for governments, chosen to correspond to some high-water mark of surveillance, for example the copper era when phone exchanges were centralized and wiretaps required only splicing together copper cables.

The most accurate baseline, however, is the baseline abilities of surveillance that our laws, especially our Constitutional laws, were designed for. In the United States, the Fourth Amendment was designed for a world in which governments had no ability to wiretap. If a government wanted to spy on your conversation they had to do it the same way they can still do now -- by following you around and listening in person (or at least in the next room). On very rare occasions, you might write a letter and the government might open your mail, for which "paper" the Fourth Amendment required a search warrant based on swearing under oath that there was probable cause to suspect a crime related to that mail.

In short, the "technological neutrality" argument, if applied correctly, leads to the opposite conclusion reached by its proponents. Rather than reacting to privacy technologies by reducing further our legal rights, instead we should be expanding our legal privacy rights and encouraging privacy technologies until we return to the baseline of government surveillance abilities for which the Fourth Amendment and similar protections were designed.

Tuesday, October 18, 2005

Cuthbert: "unauthorized access"

Here's a good summary of the Cuthbert case in which playing around in the United Kingdom with URLs (e.g. adding "../.." in front of them) landed a web user in prison. The conviction was probably based at least as much on what Cuthbert said he was trying to do by typing this (testing the security to determine whether the site was a phishing site or a genuine one -- a good but illegal intent) as on what he actually typed.

Poorly written statutes like these produce all sorts of bad effects and injustices. What does it mean for a computer access to be "unauthorized"? For a cybercrime convinction to be just, there should at least be notice (analogous to a "no trespassing sign") and cautionary affordance (analogous to a door or a fence that one cannot cross by accident). Stay tuned for more comments on this here in the next week or so.

Ian Grigg and Adam Shostack also have some interesting comments on this case.

Monday, October 17, 2005

Sunday, October 16, 2005

Rights of travel

A large variety of rights of travel, especially the rights to travel between states and to leave the United States itself, are incorporated into the United States Constitution via the Ninth Amendment and substantive liberty under the Due Process Clause. (Take your pick: the Constitution is quite redundant when it comes to asserting unenumerated rights -- we have, alas, repeatedly found it necessary in our history to remind judges that unenumerated rights are the most crucial part of our laws).

Travel rights are found as early as the Magna Carta:
It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.
The Articles of Confederation, the first constitution of the United States, expressly protected the right to "free ingress and regress to and from any other State."

These rights of travel, as with a large variety of other traditional rights, were incorporated into the Constitution via the Fifth Amendment Due Process Clause and the Ninth Amendment Unenumerated Rights Clause. Rights of travel were recognized in the 1999 case Saenz v. Roe.

During the struggle for freedom in Eastern Europe, the Soviet Union and their puppet communist governments turned their states into vast prisons by restricting freedom to leave their countries. The Berlin Wall was a highly visible but small part of this effort. Many died in their efforts to defect to the free West. Thus reisen freiheit (freedom of travel) became a key demand of those seeking freedom from these prison states, and when freedom of travel became possible these states fell. Restrictions and burdens on the right to leave a country are key symptoms that said country is no longer free.

Some common and natural law rights of parenthood

The rights of parents to control the education and upbringing of their children may be the most ancient and fundamental natural rights of all. From modern societies to hunter-gatherer and neolithic cultures, and even back our primate ancestors, parents and, secondarily, near relatives controlled their children. In every great civilization, parents and near relatives determined the upbringing and education of their children, with some pathological exceptions such as a ancient Sparta, Nazi Germany, and communist countries. There was little need to do anything but take this right for granted until the rise of compulsory government education and totalitarian ideologies in the late 19th century. In the 1920s, the Supreme Court reasserted parental rights as a common law rights in the United States in two landmark cases, Meyer v. Nebraska and Pierce v. Society of Sisters.

In Meyer the Court classified common law rights as falling under the substantive liberties of the Due Process Clause:
While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men...Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life...

Pierce reaffirmed the the "liberty of parents and guardians to direct the upbringing and education of children under their control."

Most recently, "parents' fundamental right to make decisions concerning the care, custody, and control of their children" was reasserted against a broad forced visitation statute in Troxel v. Granville (2000).

Common law rights

The recognition of common law rights that could trump legislative statute and royal edict had already long been recognized in England by the time of Bonham's Case in 1610: appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.

In the United States, Supreme Court recognition of unenumerated rights has been the norm since shortly after our Constitution was ratified, except for the short "footnote four" period during the pathological New Deal Court. Four heroic justices fought against the stripping of "mere economic" property and contract rights, and illegal expansion of federal powers, undertaken during the New Deal.

Unfortuneately (in hindsight, given the later replacement of natural law philosophy and demotion of common law to statutory law) rather than invoking the Ninth Amendment, unenumerated rights were at first justified by the Court as a matter of natural rights. In Calder v. Bull (1798) Justice Chase, voting with a unanimous Court, wrote:
There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles, in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law), contrary to the great first principles of the socical compact, cannot be considered a rightful exercise of the legislative authority.

In the later legal positivist era they were classified as substantive liberties under the Due Process Clause.

Infamies such as Korematsu occurred soon after the New Deal Court rejected the idea of unenumerated rights. This absolutist approach was itself effectively rejected when Griswold found an unenumerated right of privacy implied by the "penumbras" and "emanations" of the enumerated Bill of Rights. The right of privacy was later classified as a substantive liberty under the Due Process Clause.

Saturday, October 15, 2005


This blog is named "Unenumerated" for a variety of reasons, including
(1) the Ninth Amendment to the United States Constitution, which states the most basic (but most ignored) law of the United States, namely that our civil rights, which should be enforced by the courts, are so vast and varied that they cannot be enumerated, and
(2) the list of topics for this blog, which is so vast and varied that it cannot be enumerated.

A Measure of Sacrifice

My article A Measure of Sacrifice explains why
(1) the kind of contract that dominates most of our lives (i.e., employment) is usually measured by effort rather than output, and
(2) why the clock and the sandglass, involving two almost completely different craft traditions, were invented at the same time and place in history.

Shelling Out -- The Origins of Money

A few months ago I updated my paper on the origins of money. There are a number of ideas in here involving transaction cost economics and evolutionary psychology, with evidence from anthropology and archaeology. The article updates and critiques Carl Menger's theory of the origin of money.