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Timothy Sandefur, a libertarian who serves as principal attorney at the Pacific Legal Foundation, was even blunter, arguing that Scalia had permanently sullied his reputation during the McDonald arguments. “After this,” Sandefur wrote on the foundation’s blog, “Justice Scalia’s claims of being an originalist can simply not be taken seriously by anyone.”
George Washington University law professor Orin Kerr, a leading conservative academic and prominent skeptic of Gura’s privileges or immunities strategy, says “a lot of libertarians hoped that McDonald would become the Brown v. Board of libertarian constitutionalism.” And indeed, many libertarians (including me) believe that the original meaning of the Privileges or Immunities Clause covers economic liberty as well as gun rights. This view recognizes the 14th Amendment’s origins in the free labor philosophy of the anti-slavery Republicans who designed it. Those framers weren’t just concerned with securing a right to armed self-defense for the recently freed slaves; they also wanted to protect the freedmen’s right to earn an honest living free from unnecessary government interference. Overturning Slaughterhouse is therefore a crucial step in the libertarian project of restoring the judicial protection for economic liberty that the Supreme Court destroyed during the New Deal.
That is precisely the problem for many conservatives, who remain committed to the majoritarian vision articulated by Robert Bork. “What’s so important about [Slaughterhouse] is that there’s nothing in the Constitution about such an economic right,” declared a December 2009 Washington Times op-ed co-authored by Ken Klukowski, a senior legal analyst at the conservative American Civil Rights Union, and Ken Blackwell, a senior fellow at the conservative Family Research Council. If the Court followed Gura’s advice and struck down Slaughterhouse, Klukowski and Blackwell wrote, “life-appointed federal judges could override the decisions made by elected leaders that we, the voters, choose. The people ultimately making those decisions would no longer answer to us.” It was the Epstein-Scalia debate all over again—only this time, Scalia is a justice on the U.S. Supreme Court, and no one is exactly sure what he thinks anymore.
All Tomorrow’s Legal Parties
Will the infighting over McDonald undo the conservative legal coalition? Federalist Society co-founder and president Eugene Meyer doesn’t think so. As the head of the country’s foremost conservative legal organization, Meyer knows a thing or two about maintaining a big tent.
“You’re always going to have divisions,” Meyer says, “but what I think helps bring us together is that these debates are over what the text of the Constitution actually says.” Maybe “if we cut the government in half,” he says with a laugh, “there might be a lot more fault lines in the conservative legal movement. But as long as the basic battle is over whether the U.S. should be more like Europe, the coalition will hold.”
Sandefur, the libertarian lawyer, isn’t so sure. “I believe that the tactical alliance between libertarians and conservatives will remain pretty strong throughout the Obama presidency, but it will break up,” he says, calling the alliance a “historical accident caused by the Goldwater and Reagan presidential campaigns.”
That scenario may seem unlikely in light of the recent collaboration between libertarians and conservatives in crafting a constitutional challenge to President Barack Obama’s health care plan. But one thing is certain: With an array of hot-button legal battles in the works, the courts will remain a central battlefield, and the conservative legal movement will continue to take fire from all sides. As for the continuing influence of libertarian legal ideas, Heller co-counsel Clark Neily is cautiously optimistic. “My hope is that McDonald gets conservatives to take another look at their jurisprudence,” he says. “Maybe it will bring us closer together.”
Damon W. Root (firstname.lastname@example.org) is an associate editor of reason.