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One of the first libertarians to challenge the conservatives’ pro-government stance was the political scientist Stephen Macedo, who wrote a short book for the Cato Institute in 1986 with the provocative title The New Right v. The Constitution. Macedo argued that Bork, Meese, and their allies had turned the American system on its head. As he put it, “When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”
It would be difficult to overstate the role that the Cato Institute has played in critiquing Bork’s majoritarian conservatism and in pushing the conservative legal movement in a more libertarian direction. In addition to publishing Macedo’s book and producing numerous widely read articles and studies, Cato hosted a seminal October 1984 conference devoted to the topic of “Economic Liberties and the Constitution.” Among the participants were the University of Chicago law professor Richard Epstein, who argued that the judiciary should play an active role in defending economic liberty (much as it did in Lochner), and Antonin Scalia, then a federal appeals court judge, who advanced the Borkean view that the courts should defer to the political branches on such matters. “The Supreme Court decisions rejecting substantive due process in the economic field are clear, unequivocal and current,” Scalia declared. He added that “in my view the position the Supreme Court has arrived at is good—or at least that the suggestion that it change its position is even worse.”
In response, Epstein argued that under the Scalia-Bork interpretation, “it is up to Congress and the states to determine the limitations of their own power—which, of course, totally subverts the original constitutional arrangement of limited government.” The Scalia-Bork view, Epstein said, ignores the Constitution’s “many broad and powerful clauses designed to limit the jurisdiction of both federal and state governments,” such as the Commerce Clause, which authorizes Congress to “regulate commerce…among the several states.” He said the Borkeans also ignore clauses “designed to limit what the states and the federal government can do within the scope of their admitted power,” such as the Fifth Amendment’s Takings Clause, which says private property may not be taken for public use without “just compensation,” and the 14th Amendment’s Due Process Clause (on which Lochner relied) and Privileges or Immunities Clause, which says states may not “abridge the privileges or immunities of citizens.” Taking those provisions seriously, Epstein argued, requires “some movement in the direction of judicial activism” on behalf of economic rights.
This debate brought the conservative-libertarian divide into the spotlight. “That’s why the conference was so important as a benchmark,” Roger Pilon says. “For the first time, libertarians threw down the gauntlet.”
‘Even I Have Acquiesced’
Today the broad conservative legal movement draws intellectual inspiration from both sides of the Epstein-Scalia debate. Conservatives were almost universally outraged, for example, when the Supreme Court struck a blow against property rights in the 2005 case Kelo v. City of New London (another lawsuit filed by the Institute for Justice), where it upheld the use of eminent domain to transfer property from one private owner to another for the sake of economic development. Yet as Richard Epstein observed, for the decision to have gone the other way, the Court would have had to “take an activist stance by striking down a comprehensive [development] plan that had survived endless rounds of public hearings.” When it comes to the judicial protection of property rights, conservatives increasingly lean libertarian.
But as Judge Wilkinson’s attack on Heller shows, the appeal of Borkean majoritarianism still runs deep. The similarities between Wilkinson’s 2008 article and Scalia’s 1984 Cato presentation are striking. Both emphasize judicial restraint and deference to the elected branches. At Cato, Scalia explained that judges were in no position to second-guess lawmakers. Wilkinson made the same point, except his target was the Heller opinion written by Scalia. Had Supreme Court Justice Scalia heeded the advice of appellate judge Scalia, Wilkinson pointed out, the Court would have concluded it had no business substituting its wisdom for that of the local officials directly accountable to D.C.’s residents.
Perhaps Scalia has changed his mind. Or perhaps, like Chief Justice Roberts, Scalia only selectively practices the judicial restraint he has long preached. Consider the Supreme Court’s latest gun rights case, McDonald v. Chicago. One day after the Supreme Court ruled in Heller that D.C.’s gun law violated the Second Amendment, lead counsel Alan Gura filed a new lawsuit challenging Chicago’s nearly identical handgun ban. This case requires the Court to decide whether state and local governments are, like the federal domain of Washington, D.C., bound by the Second Amendment.
Over the past century, the Supreme Court has gradually applied most of the protections in the Bill of Rights against the states, ruling that they are “incorporated” by the 14th Amendment’s Due Process Clause, which says states may not “deprive any person of life, liberty, or property, without due process of law.” That’s the provision the Court used to protect liberty of contract in Lochner; it also appeared in Griswold v. Connecticut (1965), where the Court struck down a state law banning the sale of contraceptives to married couples, and in Lawrence v. Texas (2003), where the Court nullified the state’s anti-sodomy law. This approach is also known as “substantive due process,” referring to the idea that the Due Process Clause guarantees more than just procedural rights and in fact secures all substantive or fundamental rights from violation by the states as well. Many conservatives argue that due process, by definition, applies solely to procedural safeguards, and that the courts have no business enforcing any substantive rights via the Due Process Clause.
Since joining the Court in 1986, Scalia has been an outspoken and persistent critic of substantive due process, which he has denounced as an “atrocity” and a “mere springboard for judicial lawmaking.” That stance is consistent with his many odes to judicial restraint and originalism. In McDonald, however, Gura offered Scalia and his colleagues an alternative: incorporation via the 14th Amendment’s Privileges or Immunities Clause, which says “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As Gura argued in the brief he submitted to the Court, the Privileges or Immunities Clause’s text, original meaning, and history, including the stated goals of its framers and ratifiers, show that it was designed to secure individual rights, including the right of armed self-defense, against abusive state and local governments.
The problem is that the Supreme Court rendered the clause a dead letter with its controversial 1873 decision in The Slaughterhouse Cases, which upheld a Louisiana law granting a slaughterhouse monopoly to a private company. Writing for the Court’s 5-to-4 majority, Justice Samuel Miller declared that the Privileges or Immunities Clause protected only a narrow set of national rights (such as the right to access federal waterways), thus leaving the states free to restrict liberty as they saw fit. Gura argues that the text and original meaning of the Constitution requires the Court to strike down Slaughterhouse 137 years later and apply the Second Amendment to Chicago via the Privileges or Immunities Clause, rather than the debased Due Process Clause.
But when the Court finally heard oral arguments in McDonald last March, Scalia responded to Gura with hostility and mockery. “What you argue is the darling of the professoriate, for sure,” Scalia quipped, “but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have—even I have acquiesced in it?”
A Slaughterhouse Divided
When this article went to press, the Supreme Court had not yet handed down its McDonald ruling. Based on the oral arguments, it seems very likely that the Court will vote for due process incorporation of the right to keep and bear arms. While that would be a landmark victory for gun rights, since it would extend the Second Amendment to the states for the first time in American history, it would still be a severe disappointment to most libertarian legal activists.
When I spoke with Heller co-counsel Clark Neily two weeks after the McDonald arguments, the frustration was still evident in his voice. “Continuing to ignore an entire provision of the 14th Amendment because you’re afraid of its implications is not principled jurisprudence,” he said, referring to Scalia. He added that the National Rifle Association “held their nose and jumped in bed with substantive due process. Who would have imagined a leading conservative group doing that?”