Fighting Federalism: Damon Root’s Overruled (Part One)

U.S. Supreme Court building in Washington D.C.

Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…

Read More

Why Democratic Justices are More United than Republicans

It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.

We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.

The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.

Read More

Conserva-rrific Liber-lennials

  When a political movement changes labels, that usually means its adherents are unelectable. Take the Democrats in 2004. When the presidential candidacy of Massachusetts Senator John Kerry, a liberal protégé of the state’s senior senator, Ted Kennedy, went down in flames, their party almost immediately switched from the buzzword “liberal” to “Progressive.” Not only was this changing the subject, it was reaching for the latter term’s historically bipartisan connotations. The Democrat Woodrow Wilson had been adapting himself to a doctrine first put into circulation in national politics by a Republican, Theodore Roosevelt. The initiators of the change in emphasis, Democratic consultants Paul…

Read More

Philosophical Absolutes and the Constitution

juengling_kappesIn his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.

Read More

Libertarianism and Social Interaction

Via David Henderson, I came upon this essay by John Edward Terrell in the New York Times criticizing libertarians and Tea Party types for favoring individualism.  What a morass of confusion!

To begin with, Terrell conflates (1) the appropriateness of respecting individual rights, (2) the moral question, how we should act, and (3) the psychological question, how we are likely to act.  He seems to believe that libertarians believe that we should have absolute individual rights, that it is moral to be selfish, and that we are likely to be so.

These are old mistakes, but it is sad how often libertarianism is rejected for these mistaken reasons.

1. First, it is true that libertarians believe that people should have individual rights, but it is not because our actions have no effect on other people. Libertarians recognize that we are interconnected and argue that our mode of interaction should not be through coercion but through voluntary associations.  Social interactions work better through voluntary associations.

Goods and services are better provided through a competitive market than through monopoly government provision.  Similarly, in a free society, as de Tocqueville saw, people form voluntary associations to serve community ends and these associations generally work better than government does through coercion.    

Read More

Mario Rizzo on Classical Liberals and Libertarians

My old friend Mario Rizzo has a great post up on classical liberalism and libertarianism.  The post discusses how to distinguish the two different political theories.  Interestingly, Mario does not follow the more common distinction – for example adopted by Richard Epstein – that classical liberalism is more moderate than libertarianism, because the former accepts the need for government to promote public goods.  Mario notes that the “philosophy of liberty has always admitted of gradations or degrees” and that classical liberals such as Lysander Spooner, Auberon Herbert, and Benjamin Tucker were radicals. Instead, Mario argues that “Classical liberalism is the philosophy of…

Read More

Contraceptives, Immigration, and the Great Libertarian Convergence


A plausible interpretation of America and the world at the moment is that the imperatives of the 21st century global marketplace are so powerful they trump anything religious and political leaders say or do.

Techno-economic change does not, to be sure, trump anything and everything that nature might do. We recently had the near-miss of the stormy sun disrupting our electric grid and plunging us into the 18th century, and experts think there’s a 12 percent that could still actually happen over the next decade. That’s a lot more scary, if you think about it, than the possible long-term effects on the climate of anthropogenic global warming, although I’ll admit there’s an inconvenient truth or two there, too.

There’s also, of course, the disturbingly successful indifference of Putin and ISIS to the market, and the maybe more disturbing agility by which the Chinese manage to be both authoritarian nationalists and techno-cagey capitalists.

Read More

Deconstructing the Transhumanist Impulse

Her filmLibertarian futurists such as Tyler Cowen and Brink Lindsey sometimes write as if the point of all our remarkable techno-progress—the victory of capitalism in the form of the creative power of “human capital”—is some combination of the emancipatory hippie spirit of the 1960s with the liberty in the service of individual productivity of Reagan’s 1980s. Cowen says “the light at end of the tunnel” is the coming of a world in which we will have plenty of everything, and all the time in the world to play enjoyable games. Lindsey writes that Karl Marx’s view of communism was wrong in only one respect: In order to live in a world of bohemian enjoyment, we’ll need to remain productive.

Read More

Law and Moral Obligation II: A Response to Ilya Somin

Ilya Somin has posted an essay at Volokh that narrows that gap between our views on the source of the moral obligation to obey the law—I certainly agree, for example, that there are exigent circumstances in which one might be not merely entitled but obliged to disobey—but our underlying disagreement persists: whether the calculation itself is an individual or a political one.

Read More

The Idiocracy and Its Discontents

Economic inequality in the country is rapidly increasing. But our libertarians are right that inequality, by itself, hardly undermines the case for liberty.

A free country is a place where everyone is getting better off, although some, because of their hard work and natural gifts, more than others. Libertarians always point to the progress of technology as benefitting us all. Everyone is living longer, or at least everyone responsible enough to attend to what we can all know about avoiding the risk factors that imperil our health. In our march toward indefinite longevity and even the Singularity—the moment in time when machines are smarter than humans— it might be reasonable to hope that few will be left behind. And almost everyone benefits from the constant improvement and plummeting cost of the “screen”—from the smart phone to the tablet and laptop to the huge flat-screened TV.

Read More