This next edition of Liberty Law Talk is a conversation with Joshua Dunn on a new book that he has co-authored with Jon Shields entitled Passing on the Right. Dunn and Shields interviewed 153 professors across a range of disciplines who consider themselves conservatives and libertarians. Their findings paint a more moderate position on the types of challenges conservative academics face compared to much conventional thinking on this subject. Evidence that they are the victims of a systematic campaign of exclusion and persecution doesn't seem to exist. What does seem to exist is a host of other problems that must be carefully…
In this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions. Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory. While the law under these theories does place some limits on the justices, those limits are relevatively weak. To make this argument, I attempt to show how these theories (or at least one of them in this post) would allow a libertarian Supreme Court justice to reach significantly libertarian results. Since these theorists argue that these theories allow liberal results, it seems clear that the constraints they impose are not substantial.
In my previous post, I briefly described Dick Fallon’s Constructivists Coherence Theory of constitutional law, which requires the justices to decide cases based on five types of constitutional arguments: text, intent, theory, precedent, and values. Here I will show how a libertarian could use these arguments to reach libertarian results.
Let me start with the text. While the text might seem like a significant constraint, Fallon’s theory renders it much less substantial because he allows the interpreter to rely on either the original or the contemporary meaning. Based on either the original or contemporary meaning, the text of the Takings Clause, the Privileges or Immunities Clause, the Contracts Clause, the Ninth Amendment, and the Due Process Clause could strongly support libertarian results. (Other clauses might also be important, such as a First Amendment protection of commercial speech.)
Many people who argue against originalism do so on the basis of legal positivism. The basic argument is that the law in a nation’s legal system is based on the rule of recognition – a rule that officials in the country accept as determining what the law is – and that the rule of recognition precludes originalism. Under one version of this argument, the rule of recognition accepts as fully legitimate certain types of constitutional arguments. While some of those arguments are consistent with originalism, such as text or intent arguments, others are not, such as constitutional theory or value arguments. Because originalism does not allow these latter arguments, but the rule of recognition requires them, originalism is not the law. While some originalists, such as Will Baude and Stephen Sachs, argue that the rule of recognition is actually consistent with a kind of originalism, the nonoriginalist positivists don’t agree.
I’m skeptical that legal positivism is actually a useful way of determining what the law is, in part because of continuing disagreements about what the rule of recognition is, but let’s put that concern to the side. These nonoriginalist positivists tend to argue for a liberal version of constitutional law. They contend that the various types of arguments support their liberal vision. For two examples, see Dick Fallon’s Constructivist Coherence Theory or Philip Bobbit’s Constitutional Fate.
But as I read these nonoriginalist positivists, the arguments that they include within constitutional law are very open ended. These open ended arguments may allow a liberal to reach liberal conclusions, but they do not prevent people with other views from reaching opposite conclusions.
To illustrate this point, I will argue in this post and the next that a libertarian judge could reach libertarian solutions using the type of arguments that these liberal positivists use to define constitutional law. If both predominantly liberal and predominantly libertarian results are possible under the law as defined by these positivists, then the law is not very constraining. Put differently, we should not take too seriously the claim that the law requires any particular result, since it seems compatable with a broad range of decisions.
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…
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.
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…
In 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.
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.
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…
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.