Libertarianism, conservatism, and judicial review

The Volokh Conspiracy ^ | December 26, 2014 | Ilya Somin

[right-wing agnostic]

In a thoughtful recent post, conservative political theorist Peter Lawler comments on my review of Damon Root’s new book on the conservative-libertarian debate over judicial review. Lawler argues that libertarians overemphasize the role of judicial review protecting individual rights against state infringement, that the Founders assigned a much lesser role to judicial review, and that many of the rights libertarians (and liberals) seek to protect through judicial review cannot be squared with originalism. There are some problems with his analysis on all three issues.

I. The role of Judicial Review in Protecting Individual Rights

On the question of the effectiveness of judicial review, few serious libertarian commentators imagine that the judicial intervention alone is enough to protect the individual rights. Rather, they recognize that the road to victory for constitutional reform movements usually involves a combination of litigation and conventional political action. That has been a successful winning formula for the civil rights movement, women’s rights advocates, gun rights supporters, and – most recently – same-sex marriage advocates. It has also underpinned the recent progress made by property rights advocates. The Institute for Justice’s efforts to revive public use constraints on eminent domain has involved just such a combination. While it has not so far achieved anything like complete victory, it has managed to secure important gains.

[right-wing agnostic]

I detest how libertarians try to justify their support for U.S. Supreme Court decisions such as: Roe v. Wade, Lawrence v. Texas, Plyler v. Doe, and a few other decisions. Too often, libertarians are to willing to use the judiciary much the same way liberals do. And they are far too willing justify judicial superiority over the legislative and executive branches. (e.g., through use of the Ninth Amendment) These decisions have ABSOLUTELY NO constitutional basis. With regard to Plyler v. Doe, Hamdi v. Rumsfeld illegal aliens have no constitutional rights--even if education was a constitutional right--which it's not! (The U.S. Constitution was designed to only to apply to U.S. citizens.) With regard to Brown v. Board of Education, I am of the persuasion as William Rehnquist was while serving of a clerk to Justice Robert Jackson when he wrote a memo entitled "A Random Thought On The Segregation Cases," in which he said that the U.S. Supreme Court was wrong in overturning Plessy v. Ferguson. The 39th Congress, the same Congress that ratified the Fourteen Amendment, provided for segregated schools in Washington D.C. So that Congress didn't believe that segregated schools violated the Equal Protection Clause of the Fourteenth Amendment. So Congress was clearly interested in political equality, but not social equality, for blacks, in general, and ex-slaves, in particular. While de jure segregation is certainly reprehensible, the U.S. Supreme Court was wrong in its justification in Brown v. Board of Education (1954)./rwa

[BlackAdderess]

I’m reminded of the saying that hard cases make bad law.

[BlackAdderess]

To tell you the truth though, the problem I have with libertarians wanting to litigate absolutely every darned thing is not that it will result in things like desegregation but rather the opposite. The only people who win if you have pay lawyers endless fees to keep other people from encroaching on your rights are the lawyers (while you still have money to pay them) and the encroachers (when you run out of cash to pay the lawyers). Having the country tied up in legalese and convoluted contract law stifles both innovation and a smoothly functioning society as people become afraid to act as free people should.

[Old Sarge]

Every conversation I have ever had with any LIEbertarian always comes down to one of seven things - or all seven:

1. Unrestrained unlimited drug use
2. Unrestrained unlimited access to sex
3. Unrestrained unlimited access to abortion
4. Moral relativism.
5. The individual is totally sovereign in all aspects
6. Undefined “marriage”
7. A hatred of religion

It may be summed up as the Law of the Jungle is their only guiding principle. They wish to live like animals, but expect that such
behavior will create a “just and equal society” - they are basically social utopians (aka Leftists).

[GraceG]

If we can’t trust Legislators, why can we trust anyone in a black robe EITHER.....?

Especially when the legislators are the ones who act as the gatekeepers over the men and women in black robes....

[Old Sarge]

Agreed.

The Block-robed Priests have caused just as much damage to the nation as the politicos.

[BlackAdderess]

What I suspect that a lot of them don’t realize is that simply getting rid of complicated legal code doesn’t mean that’s it, an end to the barriers between themselves and their desires, rather, it’s opening up a ton of loopholes that will allow people to more easily sue one another. It’s an increase in precedent law which is something most people don’t know a whole lot about. And while your spending all of your time sifting through the voluminous contract law that now governs your life, some other country takes advantage of your paralysis by invading your land and setting up shop!

[Sam Gamgee]

I think we hoped that the Judicial branch would ultimately protect us, but instead it seems to be swayed more by political correctness and the mood of the masses than by the Constitution, at least at the Federal Court level.

Some of the founders insisted no system would protect our rights if our nation didn't continue to hold onto a moral foundation for that constitution. I fear they are right.

[Publius]

A good article on Original Intent and the proper role of the federal courts.

[hosepipe]

It may be summed up as the Law of the Jungle is their only guiding principle. They wish to live like animals, but expect that such behavior will create a “just and equal society” - they are basically social utopians (aka Leftists).

---

True, libertarians are Sooo liberal they become unliberal..
Licence just short of anarchy.. legality by unlegality..
Freedom, so free, that it become tyrannical..

Like a blindman on a downhill skiing run...
Wearing goggles.. yelling Yee Haw..

[PapaNew]

I’m a small “l” libertarian (not party “Libertarian”) who believes in the rule of law - the Constitution - and despises unconstitutional court rulings like Roe v. Wade.

It’s kind of hard to pigeonhole everybody. A lot of people who don’t think for themselves tend follow the “party line”, but not everyone mindlessly follows the crowd.

[BuckeyeTexan]

Of-interest ping.

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

[highball]

True enough.

[morphing libertarian]

It’s always a hoot seeing the mischaracterizations of libertarians here. No mention of freedom to run a business or control your own property. Just drugs, drugs, drugs.

The real answer is conservatives here can take a few ideas from libertarians and vis a versa. Neither side is beyond changing for the better.

I left the libertarians because of abortion, the Iranian nuke, and open borders. I disagree with those three major positions.

[MosesKnows]

Thanks for sharing a well done article.

[Lurker]

Pssssst. Those aren’t libertarians you’re talking to. They’re liberals.