Lysander Spooner’s sense of justice is the libertarian sense:
“The science of mine and thine — the science of justice — is the science of all human rights; of all a man’s rights of person and property; of all his rights to life, liberty, and the pursuit of happiness. It is the science which alone can tell any man what he can, and cannot, do; what he can, and cannot, have; what he can, and cannot, say, without infringing the rights of any other person. It is the science of peace; and the only science of peace; since it is the science which alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other.”
The Supreme Court doesn’t have this sense of justice, and often it has no sense at all. Can anyone distribute literature in an airport concourse? Spooner’s answer is that this activity is allowable or not allowable at the pleasure of the owners of the concourse. The Court has given various answers, that depend upon considerations beyond whom the concourse belongs to, that is, beyond the “science of mine and thine”. These considerations include history, reasonableness, traditional use, resemblance to a public forum, and openness to the public.
A Court in its inscrutable wisdom decides when private property is actually public property or when it has been converted into a public forum, such that the First Amendment applies, or maybe the Fourteenth Amendment.
According to the Court, justice is what the Court says it is, not what exists as an implication of ownership. According to Spooner and libertarians, justice is not what the Court says it is. Justice is rooted in “mine and thine”. Justice is discovered by examining what’s mine and what’s thine.
Conservatives who are being disallowed from distributing their “leaflets” in cyberspace are tempted to make the airport concourse case against the owners of the cyber fora. Perhaps a Court will decide in favor of the conservatives. Maybe so, but it won’t address the real problem, which is rejection of “the science of mine and thine” in favor of vague, irrelevant and changeable considerations and tests devised by the Court.
9:10 am on August 26, 2018 Email Michael S. Rozeff
