Over the past week, Daily Beast blogger Andrew Sullivan has been weighing the pros and cons of libertarianism. On Friday, he brought his readers into the discussion, publishing several of their negative takes. One comment in particular struck me as worth responding to. Here’s what Sullivan published:
A real libertarian should be just as concerned about a State government's infringement of individual liberty as the Federal government's. There should be no distinction. Period. Instead, for some strange reason, American libertarians always rail against Federal power and champion the cause of unfettered State power. Why do you think American libertarians historically champion the cause of unfettered State power in the name of "individual liberty"?
For starters, it is completely incorrect to say that “American libertarians historically champion the cause of unfettered State power.” Moorfield Storey, the great libertarian lawyer who co-founded the NAACP and served as its first president, won the 1917 Supreme Court case of Buchanan v. Warley by arguing that a Jim Crow residential segregation law in Louisville, Kentucky violated property rights under the 14th Amendment, which commands, “No State shall...deprive any person of life, liberty, or property, without due process of law.” Storey correctly argued that the 14th Amendment forbids state and local governments from violating the rights of both blacks and whites.
Take a look at three of the most prominent Supreme Court cases from recent years and you’ll find libertarians making the exact same argument in favor of individual rights and against unfettered state and local power:
• In 2003 the libertarian Cato Institute and the libertarian Institute for Justice each submitted friend of the court briefs in the case of Lawrence v. Texas urging the Supreme Court to strike down that state’s odious ban on gay sex. In his majority opinion nullifying Texas’ Homosexual Conduct Law, Justice Anthony Kennedy repeatedly cited the arguments put forward in the Cato brief. So much for championing unfettered state power.
• In 2005 the aforementioned Institute for Justice brought the case of Kelo v. City of New London to the Supreme Court. At issue was an eminent domain land grab by local officials in New London, Connecticut. Regrettably, the Court got that one wrong. Nonetheless, the libertarians who litigated the case (and thereby brought eminent domain abuse into the national spotlight) did so by urging the federal courts to force local officials to respect fundamental rights under the Constitution.
• Finally, in the 2010 case of McDonald v. Chicago, libertarian lawyer Alan Gura convinced the Supreme Court to strike down Chicago’s draconian handgun ban because it violated the Second Amendment right to keep and bear arms as applied to the states via the 14th Amendment. Once again, this was a libertarian argument which held that state and local governments may not violate fundamental rights.
I happen to agree that “a real libertarian should be just as concerned about a State government's infringement of individual liberty as the Federal government's.” But as the facts clearly demonstrate, plenty of real libertarians are concerned with both.