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Libertarians Should Help Save the Most Libertarian Part of Government
SCOTUS by Duncan Lock, Dflock – Own work, CC BY-SA 3.0.
Libertarians rarely get many outright victories in our political system. The median voter is a moderate socialist statist and Congress is filled with law-makers, not law-repealers. The president and Congress are — more often than not — in a symbiotic rather than an adversarial relationship, with calls of “bipartisanship” almost always working against freedom.
The one part of government that is actually capable of leading to major victories for liberty is somewhat ironically called the conservative wing of the Supreme Court. This is because the “originalist” opinion nearly always duplicates the libertarian position, especially from where we stand today. If even one of the liberals were replaced with another Thomas-type justice, we would experience a measurable roll-back of the authoritarian advancement from of both parties.
With Scalia’s death, however, we are in a much more precarious position. But while there’s nothing but downside if Obama is able to get another nomination through the Senate, I think the downside might not be as drastically bad as it looks at first blush.
Take a look at this graph from FiveThirtyEight.
By measuring the relative conservative and liberal leanings of the various justices, this graph supports many conservative intuitions about Supreme Court justices. If you look to the right side, it’s pretty obvious who the lines represent. From top to bottom we have Thomas, Alito, Scalia, Roberts, and Kennedy. The liberals go Breyer, Kagan, Sotomayor, and Ginsburg, but does it really matter? All four are lumped up together and as liberal as Thomas and Alito are conservative.
This graph also confirms that justices almost always become more liberal the longer they stay on the court, especially the conservatives. Kennedy is the current median vote, and his leftward drift is well-known and documented. The conservative wing spans from and stanch originalist Thomas — I’d call him downright libertarian in his effect, you may not agree, but I think most here would agree that Justice Thomas’s judicial philosophy is very close to ideal — to disappointingly moderate Roberts, who is almost as moderate as Kennedy and trending more so. Even if one liberal became a conservative, I wouldn’t be surprised to see Roberts moderate even more in order to protect the Court’s “perception.”
It’s perhaps small consolation, but even if Obama were to replace Scalia, the nominee would almost certainly land between Kennedy and Breyer on the ideological scale, likely closer to Kennedy. The graph also confirms that, if Obama were to get another liberal in, Bryer becomes the new median justice and it would be game over until one of the other leftists left the bench during a Republican presidency and Senate. I am confident in the Senate’s ability to hold firm unless Obama nominates an extremely well-qualified moderate. But even then, the court would only become somewhat more liberal that it currently is, even though such a strong conservative was replaced.
All this is to say that the conservative wing of the Supreme Court is in fact the most effective libertarian faction of the government. As such, electing a Republican president is one of the most impactful ways libertarians can move the country in their prefered direction. Despite the statist tendencies of both parties in the elected branches of government, getting conservatives (e.g., as close to Thomas as possible) on the court is a powerful check on that tendency. This makes voting for a Republican president — whether it be Senators Rubio or Cruz — the most consequential libertarian vote one can make this cycle.
Published in Domestic Policy, Law
I wish I could share your confidence. I expect them to make a show of holding firm, then confirm anyway after being cast by the media as being too mean.
As if the “establishment” wasn’t hated enough. Even the most moderate of Republicans has to know what allowing another liberal on the bench means for the country they live in. Even moderate democrats have to know. If they allow the vote, nothing says the nominee is going to get 50.
Like.
Does anyone know how Martin-Quinn scoring works? I ask because there are some questions that may skew in different directions depending on what is considered the conservative position. For example, on the Apple encryption question. Law enforcement and liberty questions are implicated in a way that it’s possible for people labelled “conservatives” to be on both sides of the question. I suspect the drift is likely correct, but I’d like to know more before I rely on it.
Imagine if we replaced Scalia and Ginsburg with Cruz and Yoo…
It would be funny to have Yoo order fast food into the Supreme Court.
More libertarian propaganda. You define originalism as libertarianism, and then find it ironic that conservatism supports originalism.
As I have said here for years, this is the libertarian attempt to co-opt conservatism. The good parts of libertarianism are conservative. The bad parts are progressive. Libertarianism is conservatism’s unguarded southern border.
There is much in this post that is good and interesting, and I’m grateful for it. But the replacement of conservative with libertarian is if nothing else, an assault upon the language.
Conservatives are fools to be Menshvik’d like this.
You’ve been here for years?
Not all in one stretch. Would it be inappropriate of me to cackle maniacally and say “this is not the only form I have taken here”?
At the same time, I despise deceptive “alts”. I do not have another concurrent account, and have been pretty plain in the past about my former account (which I tried to re-activate, but no response from the Ricochet help mail address). So this is my new account.
How do you like it?
I had the same question. For instance, Scalia’s 4th amendment jurisprudence was strongly pro-defendant (properly so, in my view). In that he was sometimes joined by Thomas but justices like Rehnquist and Alito did not do so. Moreover, Scalia was often joined by the liberal justices, except Breyer and Stevens, in those opinions. How would those cases be scored?
Libertarianism is about freedom from government coercion. What’s “bad” about that?
I agree with the overall premise here with one caveat: the conservative wing of the court hasn’t been great on 4th amendment jurisprudence. Take for example Cruz and his statements on Apple unlocking secure phones – no libertarian should support that.
I agree with your conclusion regarding the consequential nature of the election but have an observation on this part of your post:
Actually, if Obama gets his appointment and the next administration combines a Democratic president with a Democratic senate the game may really be over. One problem with all of the current conservative justices, with the exception of Thomas, is they believe in judicial restraint and following precedent. As a practical matter, that means every time the liberals win in the Court they establish yet another liberty-draining precedent, which the conservative justices follow, while trying to stop further erosion – but they never reverse direction. It is a one-way rachet, with only the timing in question. It’s a disastrous approach and a defect in conservative legal thinking (and I’m a conservative, not a libertarian).
You aren’t a textualist I see.
Mike said: “the ‘originalist’ opinion nearly always duplicates the libertarian position.” That does not mean “defining originalism as libertarianism.”
Scalia would smack you down so hard for that.
Words mean things.
Communism is about freedom from exploitation. Huzzah!
It’s a graph showing evidence of Lord Acton’s statement: “Power corrupts.”
I think your basic point is correct regardless of the graph, but having now looked into the background of the Martin-Quinn scores I think their methodology is problemmatic. There are a number of criticisms, most along the following lines:
I’m driving to Chicago (for the meetup) shortly so it’ll be several hours until I can comment again.
Jamie, it’s true the conservative wing of the court aren’t perfect from a libertarian perspective, but they get so many things right that it’s not worth quibbling.
Mark, great point about the flaw in Conservative jurisprudence and one of the main reasons I picked Thomas as exemplar.
I agree in principle that Conservative justices aid Libertarin causes, but I dispute that an originalist reading of the constitution duplicates a Libertarian position. It is perfectly within the originalist reading to have socialized medicine if it should so pass the Congress. It is within originalist reading to prohibit harmful drugs or substances. it is within the constitution to allow Bernie Sanders to turn this country into a socialist state if he should so get elected and Congress went along with it. The constitution allows for legislation that prohibts freedoms, as long as they don’t prohibit the freedoms of the Bill of Rights.
I agree with the conclusion, but don’t agree with many points of your argument.
I think the Conservative wing of the court does more to sustain Progressivism than Libertarianism: stare decisis is the legal equivalent of Charlie Brown attempting to kick the football. Morever, if one compares the number of laws Congress passes versus the number the Court overturns, they’re not even a speedbump.
But you’re certainly right that absent the Conservative wing things would be slightly worse.
This is not correct. We have a 9th and 10th Amendment to avoid exactly this outcome.
The Constitution is a specific list of powers granted, not a carte blanche to do whatever’s not prohibited. This is why Prohibition of alcohol required an amendment.
Of course the Progressives abandoned this limitation.
Absolutely – read your Federalist Papers.
I concur in part and dissent in part from your opinion :)
I concur that the Framers of the Constitution were not libertarians, nor is the Constitution itself a libertarian document. Further, there are legislative actions that Congress could constitutionally take that would (and have) horrified any libertarian, let alone conservatives.
I dissent regarding the notion that Congress can prohibit freedoms as long as they don’t violate the Bill of Rights. In addition to the Bill of Rights, the constitution itself is a limiting document regarding what the federal government may do. Anything it is not explicitly permitted, it is forbidden to do. The Progressive project has been to narrow the Bill of Rights and the Constitutional protections by creating something they call “economic rights“, reading them out of the constitution and then hollowing out the rest of the Constitution (see the commerce clause, federalism and separation of powers) so that the actual words become meaningless.
An originalist reading of the constitution holds that the Federal government is only granted enumerated powers: i.e., unless the people and the states explicitly granted the federal government a power, they retain it.
None of the powers listed above are granted in the constitution. Even during the Progressive era, it was understood that alcohol could not be banned without amending the Constitution to give it that power.
[Update: Tuck beat me to it.]
[Second update: so did Mark.]
Yeah, sorry. You can only state this if you don’t know the history, the meaning of the term “libertarian”, or if you’re being intentionally misleading. I’ll assume it’s one of the first two, as even Wilson explicitly stated his goal in ignoring the Constitution was to enable statism. I can help you with the first two:
“Is the Constitution Libertarian?” (PDF)
Pick up your game, Tom. ;)
Yeah sorry, you can only state this if you don’t know the history, if you can’t distinguish opinion from fact, or if you’re being intentionally misleading. I assume it’s one of the first two.
I’ve read Barnett’s books and have great respect for him; just last month I went to Yale Law School to see him give a lecture on his new book. Think he’s made great contributions to legal scholarship but also that his ideological preoccupations have led him to some extremes that just aren’t supportable and, for that reason, have been subject to justified extensive criticism.
Which makes it so frustrating when libertarians decide to reelect an authoritarian Democrat because the Republican isn’t perfect enough for them.
I keep seeing more and more articles about how Libertarians should support Bernie Sanders. Why? Because Socialism is such a libertarian philosophy?
Wait… what? Stipulating that many self-described libertarians vote Republican (including just about all of them on Ricochet), 2012 was the year that Gary Johnson picked up more votes for the LP than ever. Now, that was a dumb decision on their part if you ask me, but it’s not the same as voting for Obama.
Links plz.
More and more? I’ve seen one and it was roundly decried by almost every Libertarian.