Put on Your Red Shoes and Dance the Blues

Matt Welch | March 20, 2008

George Will devotes his column today to a case well-known to reason.tv viewers: the family-owned Arizona bar/restaurant getting hassled and fined nonstop by local nanny-boos for allowing its customers to dance. Will -- who has been writing this season's most withering attacks on John McCain (1, 2, 3, 4) -- makes an interesting point about the necessary role of judicial activism in rolling back such nonsense:

Beyond the weeds there is this mighty oak of a principle: There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.

The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today's weak "rational basis" standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism -- judges judging rather than merely ratifying government's caprices.

For more along those lines, see Damon Root's excellent libertarian case for judicial activism back in July 2005. And for Kevin Bacon's sake, watch Drew Carey lord over the dance ban here.

Comments

|3.20.08 @ 9:46AM|#

I disagree with George Will often. That said, I love the guy. He writes well, presents cogent arguments, avoids vituperative language, and can be tongue in cheek hilarious. He also realizes that baseball stands head and shoulders above all other athletic endeavors.

Second, governments closest to the people are -- never mind what sentimentalists say -- often the worst. This is because elected tyrants can most easily become entrenched where rival factions are few.

Libertarians often forget that uncomfortable fact.

kinnath|3.20.08 @ 9:50AM|#

Second, governments closest to the people are -- never mind what sentimentalists say -- often the worst. This is because elected tyrants can most easily become entrenched where rival factions are few.

Yes, but when things get totally out of hand, your average guy on the street has a reasonably high probability of success if he decides to shoot a local official.

|3.20.08 @ 9:54AM|#

George Will's column muddles up two wildly-different ideas.

First is the 'rule of law' -- that government officials enforce established law, not their own whims. Every developed society on Earth endorses that one, presumably including Arizona. Independent judiciaries exist precisely to prevent officials from "arbitrarily asserting that the plain language of a statute means something that it plainly does not say". If it's really the issue here, the restaurant owner will undoubtedly win.

The second idea is very different -- that "government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means". There's not a single developed society in the world that buys this, in the form that Will apparently means it. Nor is any likely to any time soon.

You'd think that universal acceptance of one and universal rejection of the other would help Will see that they're differnt. Evidently not.

Fluffy|3.20.08 @ 10:02AM|#

Pireader -

The problem is that the second idea undermines the first.

I have little to no doubt that the municipality here will defend its actions by saying something along the lines of "Sure, we really have to stretch the statute to get this done, but we have to do something to protect people from noisy establishments, and if we let people dance outside the fact that they are having fun will create noise."

You'd think that the fact that virtually all of the abuse of the concept of "rule of law" arises from 1) specious claims of national security imperatives and 2) capricious and corrupt magistrates finding creative ways to try to stretch the law to micromanage the economic activity of everyone around them, would help you see that they're related. Evidently not.

Jay D|3.20.08 @ 10:13AM|#

It is never judical activism to rule according to the plain text of the constitution.

Talk-Talkin\' Guy|3.20.08 @ 10:32AM|#

Jay D,

It's important to a certain kind of partisan to refer to every court ruling that might change anything as "judicial activism," to erase the term from the conservative lexicon via intentional misuse and mockery.

|3.20.08 @ 10:42AM|#

The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means.

Or, it should require the equal application of those laws to everyone; this story has the stench of old, established, businesses using the government to hobble a new, upstart, competitor.

|3.20.08 @ 10:50AM|#

The second idea is very different -- that "government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means". There's not a single developed society in the world that buys this, in the form that Will apparently means it. Nor is any likely to any time soon.

Yeah. What a shame.

|3.20.08 @ 10:52AM|#

The truth is ,if he was not a small businessman he would not have these problems.I've been there.

|3.20.08 @ 10:54AM|#

What's David Bowie's position on this issue. Or, for that matter, Iman's?

|3.20.08 @ 11:07AM|#

You are only as good as the society at large. Judicial activism is great until the other side uses it to restrict your freedom. The same goes with Democracy and local control; it is great until some nitwit sheriff keeps getting re-elected. Until the people themselves have the will and the inclination to step up and put a stop to this kind of nonsense, any judicia sollution is just a bandaide for a long term problem.

alan|3.20.08 @ 11:29AM|#

For a guy who once wrote a book entitled , Statecraft as Soulcraft, he often displays more than a streak of Hayek in his thinking.

highnumber|3.20.08 @ 12:12PM|#

What J sub D said about Will. Spot on. I always enjoy reading Will or listening to him speak.

|3.20.08 @ 12:26PM|#

"Judicial activism is great until the other side uses it to restrict your freedom"

Exactly. As one English Conservative MP said during a period of Conservative dominance and power, "conservatives should not forget that the next person to inherit these powers might be a comissar".

|3.20.08 @ 12:30PM|#

Will spoke at a luncheon at an ABA conference I attended. He is very, very good at public speaking. I actually asked him some sort of libertarian question, and he gave me a libertarian answer. Can't complain about that! I don't always agree with him, but he's usually worth reading or listening to.

|3.20.08 @ 12:35PM|#

Baseball is the most boring professional sport on the planet. Even cricket is more watchable.

|3.20.08 @ 12:42PM|#

Warren,

You go too far!

|3.20.08 @ 3:20PM|#

What's David Bowie's position on this issue. Or, for that matter, Iman's?

David Bowie's position is clear. Just look at the thread title. He's unquestionably pro-dancing. However, Iman's position is unclear. Every time she attempts an answer, David leans over and interrupts her with, "Oh baby, just you shut your mouth".

|3.20.08 @ 3:26PM|#

smacky,

I cannot dispute your interpretation of the Bowie/Iman positions on this matter. However, I can positively affirm that Bowie and Iman are familiar with modern love and that Iman is not a young American.

|3.20.08 @ 3:40PM|#

responding to Fluffy @ 10:02--

I question your purported "fact" that almost all abuse of the rule of law is in the areas of national security and economic regulation. There are just too many other areas for petty tyranny to take hold ... the war on drugs, welfare administration, prisons, schools, etc.

Any evidence for your thesis?

And even supposing it were true--so what? George Will's was still wrong to run together two unrelated ideas.

Unrelated because an independent judiciary can fix the first problem, where the authorities are, indeed, "stretching" the law. But it's no help with the second,where where "unstretched" law doesn't let someone do what he'd like with his property.

highnumber|3.20.08 @ 4:27PM|#

We had a free preview of a cricket channel on the satellite dish for a week a couple years ago. If you devote enough time to watching it, it becomes quite interesting.

|3.20.08 @ 5:15PM|#

No more references to 80's pop tunes when naming your columns!

|3.20.08 @ 6:08PM|#

The 14th Amendment's guarantees of equal protection and due process of law should mean that government may interfere with a citizen's economic liberty only to promote important government interests that cannot be advanced through less restrictive means.

Actually, this sounds to me like a version of "substantive due process" the bulwark which restrained the federal government for over 100 years, right up until FDR.

|3.20.08 @ 8:00PM|#

SRV doing the guitar work on that. Ziggy sure has a way of finding damn good pickers.

|3.21.08 @ 3:34AM|#

"plain text of the Constitution" is just as misleading a notion as "plain text of the Bible." Okay, not just as murky, but it's silly to suggest that any text is written by some amorphous objective force out there. Every text is written by human beings, subjected to all kinds of forces, and for that reason needs to be interpreted.