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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
Yes, he’s subject to extensive criticism from the left. You’ve not addressed the meat of his argument.
I don’t even know if your paragraph above even rises to the level of an ad hominem attack; just pointing out that other people criticize him is, however, a classic ploy. The NYT is always criticizing conservatives with the line “some say…”
There was a move back in 2007-8 to form an alliance between liberals and libertarians called Liberaltarianism, mostly related to the War on Terror. I think a lot of that was wishful thinking. We can debate the merits of the liberal and libertarian positions on the war and the extent of their overlap, but I think believing that it would end up in any kind of meaningful alliance was naive. Liberals were just happy to take libertarian votes in the election and pass Obamacare.
It would not shock me if someone wanted to do the same thing with Bernie Sanders. I don’t know how common the sentiment would be, but not that unbelievable.
Well, if you are not misleading, than you are simply an unself aware fool. You talk of ad hominem attacks – have you actually read your own comments?
Since you seem ignorant of history, may I bring to your attention that the Constitution was written by men who wished to destroy the Articles of Confederation (contra Barnett, the Articles are “the most explicitly libertarian document”) because they desired a more powerful, and centralized government. Then they attempted to jerry-rig a structure around it to prevent the monster they’d created from devouring us all.
I had to check this one.
This was not true in 2008:
So don’t blame Libertarians for Obamacare.
But it was certainly true in 2012:
Which represents (yet another) massive failure on the part of the Romney campaign.
Dumb kids.
Further, it looks like you haven’t even read the Barnett article you linked to. His critique of what has happened to the Constitution since its adaption is in complete agreement with the second part of my original comment (which you ignored) and even under his interpretation he admits it is not a libertarian document when it comes to foreign policy.
Didn’t intend to blame the libertarians as a whole. Just the Liberaltarians.
No, because that government was considered to be ineffective. Not because they were looking for less Libertarian alternative. Simply moving powers from one part of the government (states) to the other (central) does not per se increase or decrease liberty.
I said, “You can only state this if you don’t know … the meaning of the term “libertarian”…”
That’s not an ad hominem attack, it’s an accurate description of your claim.
Take Richard Epstein, who’s on a podcast here on Ricochet titled “The Libertarian”. He describes himself as “Classical Liberal”, which describes both the Founders and the document they wrote.
The Classical Liberal Constitution — Richard A. Epstein
No, I agreed with it.
He does no such thing:
I’ll note that the modern Libertarians are the only ones that quote Washington on the matter of foreign policy: No “foreign entanglements”. Dems and Reps both take their foreign policy from Woodrow Wilson and TR, not the founders, as befits them: they’re both Progressives.
LOL. OK—they deserve it, as it’s an indefensible position, as well as an awkward term. :)
It seems to me that a basic problem with this discussion is the assumption that each case presented to the USSC (or, at least, each of the cases that provokes a major battle between the Left and the Right) is treated as if it is, inherently, either liberal or conservative. If the outcome favors the desired liberal position, the case is liberal; if it favors the desired conservative outcome, the case is conservative. Fair enough for how we keep score on such things.
Thus, if Scalia voted to uphold the desired liberal outcome, for “scoring” purposes his vote was treated as liberal (or conservative if he voted to uphold the desired conservative outcome).
However, this is not what we should expect from judges. And it’s not what Scalia sought to do. For Scalia in particular, the key issue was not the outcome of the case: it was what did the law (or the Constitution) require? What might be required by the law (or the Constitution) might, in any particular case, ultimately be deemed either liberal or conservative, but that was essentially irrelevant to him. See, for example:
https://www.washingtonpost.com/posteverything/wp/2016/02/17/im-a-liberal-lawyer-clerking-for-scalia-taught-me-how-to-think-about-the-law/
The knock against liberal judges (or justices) is precisely that they decide first what the favored outcome of the case should be, and then they figure out how to craft an opinion that leads to that desired result. Scalia was committed to the Rule of Law, and that meant that sometimes a liberal law would result in a liberal outcome in a case involving interpretation of that law.
Similarly, with respect to the Constitution, Scalia’s loyalty was to the text since that was what the founders had drafted and the citizens had enacted. What he sought to do was to get his colleagues to address the text of the document rather than the accumulated political detritus that both sides have attempted to attach to it.
It may often be the case that adherence to a textualist interpretation may result in an outcome that can be viewed as libertarian (or conservative) – simply because it results in application of a “pristine” view of the Constitution. But that’s because a textualist interpretation demands that we respect the essentially conservative nature of the document.
In my view, we demand appointment of a “conservative” justice because we want the Constitution to be interpreted in line with what was drafted, and not in line with the “best” or “most desirable” outcome. And recent history has affirmed that our only hope of such constitutional interpretation lies with conservative jurists.
You don’t even understand what ad hominem means. It is an argument directed against a person rather than the position they are maintaining. In the excerpt you quoted I wrote that I have great respect for Prof Barnett and he’s made great contributions to legal scholarship and then go on to say I disagree with some of his conclusions. The rest of your paragraph above is incoherent raving.
On the other hand, you accused me of being intentionally misleading.
Like I said, you are indeed the King of Lack of Self Awareness
I’d suggest you go back and read what you originally wrote, but I now know how useless that would be.
Gentlemen, kindly cool it.
Though according to Drs Rahe and Epstein – both of whom I’m inclined to believe – Scalia himself simply accepted some of the older political detritus that had accumulated on the Constitution, in particular the early Progressives’ extreme deference to the legislature, and their unwillingness to protect the unenumerated rights the Constitution says we have, even though several rights not enumerated in the Constitution were made explicit elsewhere, either in the Anglo-American legal heritage our founders inherited, or in the founders’ own writing.
I am also under the impression that this is a fair assessment. I think reading out unenumerated rights when the ninth amendment says they shall not be denied or disparaged is not faithful to the text or the original understanding of the amendment. I understand the potential for mischief and that the questions raised may be difficult. The application of the 4th amendment to computers and cars is hard too, but we can’t evade the Constitutional issues because they are hard.
Still, even when I disagreed with him, the usually offered the best available argument for his position. And if I can’t have another Justice Thomas on the bench, I’ll take a Justice Scalia in a pinch.
Agreed. I definitely think that Thomas is the most conservative justice on the court. Scalia was always effective, intelligent and usefully flamboyant in his opinions. He will be sorely missed. John Yoo once described Thomas’s philosophy of law as “scrapping the barnacle’s off of the Constitution”. That is actually a more useful mold for us to look for in future nominees, than simply acquiescing to long established frequently liberal precedent.