Kennedy the Libertarian

"People say I'm a libertarian," Justice Anthony Kennedy tells The New York Times. "I don't really know what that means." I believe the second part.

Presumably these people (if they really exist) have in mind Kennedy's positions on abortion, sodomy, pornography, and flag burning, where many conservatives would say he twisted the Constitution to overturn government restrictions that libertarians oppose on philosophical grounds (with the possible exception of abortion, which may or may not involve the violation of an individual's rights, depending on the moral status of the fetus). Yet in two particularly egregious recent decisions involving medical marijuana and eminent domain, Kennedy pissed off both strict constructionists and libertarians, abandoning the Constitution to endorse violations of individual rights. It may not have the unifying power of the fight against communism, but surely hating Kennedy is one of the few things that still unites the traditionalist and individualist strains of the conservative movement.

Comments

[joe]

I heard he does his own research on the internets.

(Sorry, couldn't resist)

[Devin McCullen]

Is hating Kennedy more unifying than haiting Souter? Or is it just that Kennedy still sometimes gets your hopes up?

[phocion]

Well, the court unanimously ruled against Grokster. No word yet on whether robbed businesses will be able to sue the manufacturers of burglary tools.

[Marcvs]

Generally just a good idea to hate them all.

[Bob Dobalina]

How does one make a submission to Hit and Run?

[fyodor]

Libertarianism is more a political philosophy than a judicial one. A judge should should decide a case based on the most applicable law (statute, Constitution, commom law), not on the wisdom or perceived fairness of the law, which is where libertarianism more properly comes into play.

That said, libertarians are less likely than statists to want to push the Constitution aside when it's inconvenient to statist designs.

[David]

Bob,

Scroll down to the bottom of the page, there's a Hit&Run suggestions link on the lower left corner.

[Mark P Neyer]

How in hell could any libertarian support the sodomy decision made in the summer of 2003? I don't support government controls on sodomy, but the constitution doesn't give the federal government the power to repeal state laws governing morality.

[joe]

Mark,

Don't libertarians believe the Constitution protects privacy rights? And that the federal courts may invalidate state laws and actions that violate the rights guaranteed to persons by the Constitution?

[Rich Ard]

Mark, you might want to check out the last couple of days' worth of Kelo threads for an expansion of Joe's statement...

[kevrob]

Mark P.

Many of us are very enthusiastic about the unenumerated rights guaranteed by the 9th Amendment, aka Bob Bork's Inkblot. Check out The Rights Retained By The People and other work by Randy Barnett.

Kevin

[fyodor]

My personal take is that outlawing consensual behavior, such as sodomy, among adults violates libertarian principles. But the applicability of the Constitution and the role of federal courts in such a case would be open to each libertarian's personal interpretation. Ie, such matters are not governed by libertarian principles per se. I would add, however, that I believe there was an amendment to the federal Constitution that applied Constitutional protections of rights to the state level.

[Baylen]

The 14th

[mediageek]

[quote]But the applicability of the Constitution and the role of federal courts in such a case would be open to each libertarian's personal interpretation. Ie, such matters are not governed by libertarian principles per se.[/quote]

Couldn't the argument be made that the .gov doesn't have the power to regulate consensual acts between adults on the grounds that the Constitution and the Bill of Rights were drafted such that they put constraints on the powers of government while leaving individuals free?

[Mark P Neyer]

I don't support anti-sodomy laws. I agree that anti-sodomy laws are a violation of libertarian principles. However, if George W. Bush said 'As your king, I command the state of texas to repeal that law' and the law was repealed, I wouldn't consider that a liberatarian victory. We seem to be in agreement on that point; I suppose our disagrement is on whether the texas law violated the united states constitution.

It is my understanding that the constitution is a document intended to restrict the role of the federal government. If the powers not given to the federal government are delegated to the states, and the power to legislate sexual morality is not given the the federal government, then said power IS given to the state governments and the texas legislature did not violate the united states constitution by banning sodomy.

[biologist]

Mark, have you read the 14th amendment as suggested above by fyodor and Baylen?

also, the 10th amendment reserves the rights not granted to the federal government to the states and the people, not just the states

[joe]

Mark,

Let's put is this way: does the Constitution give the federal government the right to overturn state laws that "limit freedom of speech, assembly, and of the press?" Can the federal courts overturn state laws that inflict cruel and unusual punishment?

If you say yes, then you agree that the Constitution gives the federal government the power to nullify state laws that strip citizens of their rights, and the debate is only about whether private, consensual, adult activities are, like speech and getting a lawyer when you're arrested, protected by the Constitution.

[MP]

Mark,

"You need to do your homework." --Terry Francona

[fyodor]

mediageek,

Couldn't the argument be made that the .gov doesn't have the power to regulate consensual acts between adults on the grounds that the Constitution and the Bill of Rights were drafted such that they put constraints on the powers of government while leaving individuals free?

You would have little argument with me that that was indeed one of the underlying principles of government being espoused by the Framers. My point was that what the role of the federal government and federal courts in the case of a state government violating that principle is neither an open-shut matter nor one dictated by libertarian principles per se. While I disagree with Mark P. Neyer, his commentary helps illustrate why.

Mark P. Neyer,

However, if George W. Bush said 'As your king, I command the state of texas to repeal that law' and the law was repealed, I wouldn't consider that a liberatarian victory.

It may seem like disagreeing on the number of angels that can dance on the head of a pin, but no, I would say that would have nothing to do with libertarianism. What it has everything to do with is federalism and constitutionalism. Now, it just so happens that libertarians are often strong believers in federalism and a stricter interpretation of the constitution. They are overlapping philosophies, but based on separate principles. Again, this may seem like so much academic masterbation, but I think it can be useful to keep the issues separate.

biologist and joe have adequately addressed the other aspects of your post. The 14th amendment is what gives federal courts jurisdiction in a case involving rights protected by the Bill of Rights. Now, whether the rest of the court's reasoning is valid is another matter, but you seemed to be specifically raising the issue of jurisdiction. The 14th amendment does NOT allow the feds to be involved in anything, it just extends the limitations of the federal government in the Bill of Rights to state governments (I think; I can't look it up cause I'm too busy posting here!!).

[kevrob]

Mark, you mentioned the 10th Amendment. What about the Ninth?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The freedom to engage in various sexual practices without meddling by the Feds would be guaranteed by this. The "privileges and immunities" and "due process" clauses of the Fourteenth Amendment* would make this binding on the states. Some conservatives object to some or all of the "incorporation doctrine", and I would have preferred a more straightfoward amendment that said "the states must respect the principles of the Bill of Rights", but that's what we got.

Kevin

* All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[Eric the .5b]

Mark,

I'll chime in on "the 14th Amendment", and recommend The Bill of Rights: Creation and Reconstruction as a really interesting book I read a few years back covering the historical changes in the handling of the Bill of Rights and other parts of the Constitution before and after the passage of the 14th Amendment.

[Mark P Neyer]

The 14th amendment says you can't derive someone of liberty without due process. As long as charges are filed and there is a trial by jury, there is due process.

I suppose I take a very different view of the constitution than everyone else here; I interpret the document literally as it is written. For example, if the state of ohio were to pass a law preventing newspapers form criticizing bush, I would not view this as a violation of the first amendment of the constitution because the first amendment of the constitution prevents congress (i.e. federal congress) from making any law bla bla bla. I'm sure this puts me in a small minority here, and I geuss that's where the disagrement arises.

[MikeP]

I think it's worth noting that the United States is fortunate -- perhaps uniquely so -- to have a libertarian Constitution. What other country was able to write down the principles of government at the height of the Enlightenment?

In recent descussions of Raich and Kelo, a number of people have voiced distaste for arguments which are based on anything outside the Constitution. Would they be voicing the same arguments if the Constitution had been written in 1887 or 1910 or 1935? Surely many if not most of those libertarians would favor natural rights over rule of law if the rule of law was the People's General Welfare Constitution Act of 1935.

It is a supreme luxury for libertarians to be able to point to the Constitution in almost every dispute with government. In those cases where the Constitution is not explicit in supporting natural rights, I would favor the very broad readings of the 9th and 10th (and by inclusion the 14th) the framer's intended.

[Ayn_Randian]

Christ mark. Your ignorance is showing

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

Your due process stuff is in reference to a trial, jackass, but the above quote is in reference to a law. The 14th amendmet is widely accepted to enforce the bill of rights on the states: your view of the Constitution is pre-1865.

In Napoleon Dynamite voice Gosh! Idiot.

[joe]

Mark,

Texas's sodomy laws weren't held to violate the due process clause, but the "privliges and immunities" clause.

As far as your textualier-than-thou stance, please tell me where in the original text I can find a comprehensive list of those privileges and immunities? For my part, I seem to recall some language about "the enumeration of rights...shall not be construed..," which seems to suggest that there are other rights, and that there are other legal processes whereby they could be appreciated.

[Ayn_Randian]

On another note, does Kennedy, a premier member of the United States Government and supposed political and legal eagle, really not know what "libertarian" actually means.

What a jackass! You should at least have to pass the equivalent of a political science exam to toy with people's lives.

[Mark P Neyer]

Please don't flame me; I'm not trying to sound arrog ant or anything.

Call me old fashioned if you wish, maybe my view on the constitution is pre-1865. /shrug

As for the 14th ammendment, it's worded in a very vague manner, as are a lot of the ammednments. The ninth ammendment says "even though we may have delineated rights here in the constitution, that doesn't mean that the federal government can tell you not to do something else that wasn't mentioned on the list;" it doesn't say that citizens have a right to do pretty much everything they want.

I'm sorry for starting this whole argument; I just saw the sodomy decision as a case of the federal government legislating a specific morality (that anti-sodomy laws are wrong) to the states.

[mediageek]

Not being as well read as many of the others here, I still have to say that on a gut level, I have a hard time believing that the framers would have written a constitution that strongly ties the hands of federal powers while allowing the states to be run like petty fiefdoms.

[Ayn_Randian]

Ewww, joe and cross-posted... and we agreed

Weeeirrd...

[Ayn_Randian]

should be "and I"

[MikeP]

The ninth ammendment says "even though we may have delineated rights here in the constitution, that doesn't mean that the federal government can tell you not to do something else that wasn't mentioned on the list;" it doesn't say that citizens have a right to do pretty much everything they want.

There were a considerable number of framers who believed that no Bill of Rights was needed at all. After all, the Constitution bloody well says what the government can do -- see Article I, Section 8 in particular. Any attempt to delineate what it can't do would be distracting. Worse, it would imply to future generations that it was a complete enumeration of the rights of the people.

The 9th and 10th amendments were included to handle those objections.

As evidenced by the discussion here, the objections were clearly justified. Whether rights would have been better protected without a Bill of Rights than with one is an open question.

[MP]

mediageek,

The framers original version of the Constitution gave little thought to restraining states rights. My favorite example of this is the fact that CT (and I believe many other states) had an official state religion until the early 1800's.

[MP]

Mark,

I strongly suggest reading the book previously mentioned by Eric the .5b. As you appear to have no background in the theory of rights incorporation under the 14th amendment, that book is a great place to start.

[Eric the .5b]

I think it's worth noting that the United States is fortunate -- perhaps uniquely so -- to have a libertarian Constitution.

Not strictly libertarian (Post Office, anyone?) so much as classically liberal. The political mainstream, even in the US, has wandered so far from that idea that the Constitution just sounds like our brand of kooky minimalism. 🙂

[grylliade]

I suppose I take a very different view of the constitution than everyone else here; I interpret the document literally as it is written.

Shouldn't we take into account what the writers of that amendment intended? If we're going to do that with the Second Amendment, to try to figure out what they meant by the language, shouldn't we do the same with the Fourteenth?

[MP]

No. Intent is too nebulous. You are better off relying on the commonly accepted usage of the words chosen at the time they were written. That's the difference between Original Meaning and Original Intent.

[kevrob]

I agree, mp, except that, when the textual meaning is somehow clouded, referring to the ratification dialogue - by which I mean the Federalist and Anti-Federalist papers, and such minutes of the debates of the ratifying conventions as exist - to see what the people voting on the new Constitution and the first 10 amendments thought that text meant is important to me.

Many of the famous Federalist arguments are answers to accusations by Antis that thus and so in the Constitution will grow into an instrument of oppression. Hamilton, Madison & Jay used a lot of ink explaining why the perceived wide grants of power were no such thing. We moderns should hold the centralizers to the Federalits' promises.

Kevin