Bill Whittle recently sat down with Larry Flynt, the founder of Hustler and the grande dame of printed softcore porn, for an exclusive on-camera interview for PJTV.com. Flynt, a long-time libertarian-leaning Democrat, has aged. His physical life hasn’t been easy: an assassination attempt left him paralyzed, and he’s had a stroke in the past. He has that gravelly, slightly thready deep voice that we remember our grandfathers having. That voice usually accompanied some solid practical advice. Flynt is no different.
He knows the score. He knows how stuff works.
Many details of the interview stood out for me. The first was his collection of Romantic art. This surprised Whittle, but really, it makes perfect sense. For a man who made money well beyond his practical needs by pioneering softcore pornography for the general public, what else would he collect? If he collected Cubist or Neoclassical art, that would have surprised me. But collecting master works known for depicting the primal forces of nature as beautiful and powerful is appropriately fitting. Since lust is the personal version of primal nature, Romantic art is precisely what I would expect him to collect. Flynt is consistent.
I also was not surprised by his comments on Hillary Clinton. He endorsed her earlier this summer even though he doesn’t care much for her positions. He knows with the unerring sense of a guy who has seen and done a lot that politicians don’t actually matter much anymore; the courts do.
I do not know if Flynt could describe the legal reasoning of substantive due process, but he sounds like a rather intelligent guy, so he might have studied the details. I do know that he gets the gist.
Substantive due process is the idea that the Due Process Clause of the Fourteenth Amendment contains a secret repository of rights that judges have the map to find. The clause states, “nor shall any State deprive any person of life, liberty, or property, without due process of law,” but substantive due process says that the clause covers more than whether the states must follow the procedures in our system, such as trial by jury or just compensation for public use taking.
Take a theoretical right of fairness, for example. Sounds lovely, but what is fair? If there is a constitutional right of fairness declared by the judiciary, then it also falls to the judiciary to define fairness. Outcome? Opportunity? Income? What exactly does due process fairness look like? We have seen this play out in the right of privacy, which is essentially a substantive due process right. The judiciary has to determine what is private and therefore out of the bounds of law and individual action. Or marriage, for another example. Now there is a fundamental right to marriage, and so of course, only the judiciary can then declare what marriage is. It is a fundamental, constitutional right. The people and the legislatures can’t touch it.
Once declared, these due process rights trump legislation, executive action and individual action because the whole rationale is really overcompensation for the ignored Privileges and Immunities Clause of the Fourteenth Amendment. That clause was supposed to restrain the legislative branch and the Due Process Clause was for restraining the judicial branch. But it all got twisted, and now the Due Process Clause does all the work of the Fourteenth Amendment through judge-claimed expansions of judicial power.
If checks and balances were a game, substantive due process would be the trump card. The old man who made a fortune in the business of satisfying public appetites understands that.
Therefore, when choosing an executive, Flynt does not worry about Hillary’s personal positions, which he does not like, because they are less important than her criteria for appointing judges to the bench. He guesses, correctly I think, that she will be more likely to appoint lawyers who are open to reading into the laws of the country, whatever they think is right.
But there is a caveat that most people who look to the courts miss. They think only moderates, as Flynt calls them, read into the law. And they assume that moderate politicians will succeed in appointing moderates to the courts. That’s harder than it seems, and substantive due process is a bipartisan error. For instance, its assumptions held up Dred Scott v. Sandford and invalidated the many provisions of the New Deal before FDR made his famous threat.
In short, opening the secret repository of rights can go both ways. Once we all acquiesce to judge-made law, then anything goes, really. And since liberals like Hillary Clinton are more likely to govern on policies rather than principles, the potential for “fun” with the law of unintended consequences is high. My go-to example of possible government policy reversals is contraception, but there are many more potential turnabouts. One only needs to use a little imagination.
By endorsing Hillary for her chance to pick a U.S. supreme court justice, Flynt is really endorsing the consolidation of more and more powers into fewer and fewer hands. And that is a surprising thing to hear coming from the mouth of a libertarian.