Conservatives v. Libertarians

The debate over judicial activism divides former allies.

It's hard to imagine a greater victory for the conservative legal movement than the Supreme Court's 2008 decision in District of Columbia v. Heller, which overturned D.C.'s ban on handguns. Not only did the Court definitively settle the long-contested question of whether the Second Amendment secures an individual right to keep and bear arms, but it did so using the language of "originalism"—the school of thought, long championed by conservatives, that says the Constitution should be read according to its original public meaning.

It was therefore surprising when a leading conservative jurist, Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit, denounced the ruling as a shameful piece of judicial activism. Heller, Wilkinson wrote in the Virginia Law Review, "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts."

It was a classic conservative complaint, except that Wilkinson's targets sat on the right side of the bench. And this was no isolated incident. With John Roberts coming into his own as chief justice of a right-leaning Court, conservative anxiety about libertarian-flavored judicial activism has been heating to a boil.

In the 2010 campaign finance reform case Citizens United v. FEC, for example, the high court overturned parts of multiple precedents that had upheld restrictions on political speech. In response, Stuart Taylor Jr., a legal commentator widely respected on the right, said the Court's conservatives had "forfeited whatever high ground they once held in the judicial activism debate." By overturning precedents and nullifying portions of federal law, Taylor worried, the Court's conservative majority had set an example that liberals would be all too happy to follow.

The most visible split yet occurred in the run-up to the March 2010 oral arguments in McDonald v. Chicago, in which the Supreme Court considered the constitutionality of the Windy City's handgun ban. With the Court preparing to rule for the first time on whether the Second Amendment applies to state and local governments (Heller applied only to the federal government, which oversees Washington, D.C.), conservative and libertarian groups openly battled one another over legal strategy and constitutional interpretation. In the end, the conservative National Rifle Association successfully lobbied the Supreme Court to take 10 minutes of argument time away from the libertarian lead attorney, Alan Gura (who had successfully argued Heller), and hand it over to the NRA's Paul Clement, who as George W. Bush's solicitor general had angered gun rights activists (including the NRA) by urging the Court to adopt a relatively deferential approach to gun control. The oral arguments in McDonald, which highlighted differences over how the Second Amendment should be applied to the states, left many libertarians deeply angry at the Roberts Court and wondering if the conservative-libertarian legal alliance was finally coming apart.

"Now that conservatives form a majority on the Supreme Court and the lower federal courts, the fault lines are emerging between religious conservatives and libertarians, moderates and radicals, originalists, proponents of judicial restraint, and result-oriented conservatives," says Doug Kendall, the president and founder of the Constitutional Accountability Center, a liberal think tank that has worked with—and against—many figures in the conservative legal movement. "The challenge for conservatives, now that they are in charge, is to figure out what they truly believe in, rather than simply what they oppose."

They won't be reaching a consensus anytime soon. Although libertarians and conservatives are routinely lumped together, even by seasoned legal journalists, there are profound differences between them over matters of law. With both libertarians and conservatives increasingly turning to the courts to advance their agendas, and with major legal battles brewing over contentious issues like gay marriage, health care, financial reform, and terrorism, these fault lines have the potential to reshape the legal landscape and affect the life, liberty, and property of every American for generations to come.

A Big Tent

The conservative legal movement occupies one of the biggest tents in American politics, with a membership ranging from religious traditionalists to gay-friendly libertarians who shouldn't really be called conservatives at all. The movement's origins lie in the political backlash against the Supreme Court's perceived liberal activism during the 1960s and '70s, when it issued landmark decisions legalizing abortion, giving defendants procedural safeguards against self-incrimination, endorsing school busing, applying "heightened" judicial scrutiny to alleged sex discrimination by the government, limiting the scope of executive power, and loosening the eligibility requirements for federal welfare programs. In the eyes of many conservatives, the Court wasn't just fulfilling the liberal wish list; it was inventing new rights previously unrecognized in constitutional law.

As David Kennedy—a co-founder of the Institute for Justice, a libertarian public interest law firm—told Steven Teles, author of the 2008 book The Rise of the Conservative Legal Movement, there "was an enormous sense of political disfranchisement" among the opponents of those decisions. "With the lessons taught by the leftist activists of the sixties and early seventies in their use of the courts to obtain results which they were unable to obtain politically," Kennedy explained, "there developed a movement to use the same tactics on behalf of more traditional, more conservative, more libertarian causes."

Several organizations soon formed to carry out that mission, including the Pacific Legal Foundation (founded in 1973), the Landmark Legal Foundation (founded in 1977), and the Washington Legal Foundation (also founded in 1977). They filed amicus briefs, challenged various government regulations, and pursued conservative and/or libertarian policy goals—both in and out of court.

The most significant early development came with the formation of the Federalist Society. Founded in 1982, the Federalist Society functions as both a legal network, with law student and lawyer chapters around the country, and an academic seminar, sponsoring highly respected conferences and debates that draw top-notch speakers and participants from across the political spectrum. Much of the society's attention is focused on attracting and nurturing conservative legal talent. That focus has paid off with the placement of several former members in high-ranking government positions, most notably Supreme Court Justice Antonin Scalia, a former faculty adviser to the society's University of Chicago chapter. Since the Federalist Society doesn't take official positions on public policy questions, its membership is as wide-ranging as the conservative legal movement in general. As a result, even the most conservative member has been exposed to libertarian legal ideas.

Another important milestone came when President Ronald Reagan appointed conservative lawyer Edwin Meese III as attorney general in 1985. An aggressive critic of the liberal legal establishment, Meese made judicial restraint, which had long been a conservative rallying cry, into a central part of Reagan's domestic agenda. "What, then, should a constitutional jurisprudence actually be?" Meese asked in a 1985 speech to the American Bar Association. "It should be a jurisprudence of Original Intention." That meant judges should exhibit "a deeply rooted commitment to the idea of democracy" and to the choices made by voters and their representatives. Writing in The New York Law School Law Review a decade later, Meese said this approach was meant to undo "more than a quarter century of judicial activism, in which the text of the Constitution, precedent, and certainty were cast aside in favor of wild flings of judicial fancy."

The movement's first great legal victories came next, thanks to the formation of the Center for Individual Rights in 1989 and the Institute for Justice in 1991. In United States v. Morrison (2000), the Center for Individual Rights convinced the Supreme Court that portions of the 1994 Violence Against Women Act exceeded Congress' constitutional authority to regulate interstate commerce, while in Gratz v. Bollinger (2003), the group persuaded the Court to strike down the University of Michigan's race-based admissions policy for undergraduates. The Institute for Justice won key victories in Zelman v. Simmons-Harris (2002), where the Supreme Court rejected an Establishment Clause challenge to Ohio's school voucher plan, and Granholm v. Heald (2005), where the Court nullified Michigan and New York laws prohibiting out-of-state wineries from shipping their products directly to consumers on grounds that the laws were unconstitutional barriers to interstate commerce.

Uniting against a common liberal enemy turned out to be much easier than agreeing on controversial political issues once the movement gained enough clout to start winning cases. In particular, conservatives and libertarians during their decades in the wilderness papered over profound divisions over one of the most fundamental questions in American law: the proper role of the courts.

Majorities Rule

Article III, Section I of the U.S. Constitution vests "the judicial power" in "one supreme Court, and in such inferior Courts as Congress from time to time may ordain and establish." Most supporters of ratification understood the judicial power as including the authority to decide whether acts of Congress were consistent with the Constitution. "If a law should be made inconsistent with those powers vested by this instrument in Congress," constitutional convention delegate James Wilson explained to the Pennsylvania ratification convention in December 1788, "the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void." This is the power of judicial review.

"Judicial review is doubtless the main issue that separates conservative and libertarian jurisprudes," says Roger Pilon, an influential legal thinker who serves as director of the Center for Constitutional Studies at the Cato Institute, a libertarian think tank. "But that divide is rooted in turn in more fundamental differences about the American system of government."

Libertarians typically favor an aggressive judiciary that is willing to overturn mistaken precedents and strike down unconstitutional state and federal statutes. The Georgetown law professor Randy Barnett, for instance, has argued that the courts should adopt a "presumption of liberty," meaning that the government should be required "to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow 'fundamental.'?"

That position is almost the exact opposite of the judicial restraint advocated by Meese and other conservatives. As Ramesh Ponnuru of National Review has put it, judicial restraint "is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments."

Clark Neily, a senior attorney at the Institute for Justice and, in his private capacity, one of the winning attorneys in the Heller gun rights case, describes the source of disagreement this way: "What level of skepticism do you bring to government?"

It's common to assume that conservatives bring a very high level of skepticism to government. But when it comes to legal theory, that's not necessarily the case. Consider the Supreme Court's decision in Lochner v. New York (1905). At issue was a provision of New York's 1895 Bakeshop Act that banned bakery employees from working more than 10 hours per day or 60 hours per week. Writing for the majority, Justice Rufus Peckham nullified the law for violating the right to liberty of contract protected by the Due Process Clause of the 14th Amendment, which says that no state shall "deprive any person of life, liberty, or property, without due process of law."

Unsurprisingly, liberals denounced Peckham for striking down this economic regulation and later cheered the Supreme Court when it rejected liberty of contract in the landmark New Deal case West Coast Hotel v. Parrish (1937). Since the Constitution doesn't mention liberty of contract, the liberal argument went, the Court had no business overriding the wishes of the New York legislature. Ask virtually any liberal law professor about Lochner, and he'll tell you it's a blatant example of judicial activism. Cass Sunstein, who teaches law at Harvard and the University of Chicago and currently serves as head of the federal Office of Information and Regulatory Affairs, has even compared Lochner to Plessy v. Ferguson (1896), the notorious case that enshrined the vile doctrine of "separate but equal" into law.

What's surprising is that many of today's most prominent legal conservatives share this hostility to Lochner. Foremost among them is Robert Bork, the former federal appeals court judge whose failed 1987 nomination to the Supreme Court galvanized conservatives and set a template for future judicial confirmation battles. A distinguished Yale law professor, bestselling author, and popular speaker, Bork has had an immeasurable impact on the conservative legal movement. Indeed, he is arguably its most influential figure. And in Bork's opinion, Lochner represents "the symbol, indeed the quintessence, of judicial usurpation of power," as he put it in his bestselling 1990 book The Tempting of America.

As Bork sees it, the "first principle" of the American system isn't the protection of individual rights. "In wide areas of life," he writes in The Tempting of America, "majorities are entitled to rule, if they wish, simply because they are majorities." That means that in the vast majority of cases, the courts should give lawmakers the benefit of the doubt and presume the constitutionality of the disputed law, including economic regulations. In other words, courts should adopt a pro-government posture of judicial deference.

Chief Justice John Roberts offers an instructive example of the problems this approach can cause. During his 2005 Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and consensus that he extended even to the abortion-legalizing Roe v. Wade (1973), a case Roberts described as "the settled law of the land."

Yet as Citizens United later demonstrated, Roberts' judicial modesty has limits. In his concurrence in that case, Roberts argued that the Court was perfectly justified in overturning its decisions "if adherence to a precedent actually impedes the stable and orderly adjudication of future cases"—when, for example, "the precedent's validity is so hotly contested that it cannot reliably function as a basis for decision in future cases."

That formulation leaves a lot of wiggle room for a self-described champion of judicial modesty. Many liberals would say Citizens United is hotly contested and therefore deserves to be overruled. Most conservatives would say the same thing about Roe v. Wade. And that's precisely the point of judicial restraint; it eliminates all that picking and choosing by requiring judges to defer to the will of the majority.

Roberts tried to have it both ways, employing the standard conservative rhetoric of judicial restraint while selectively wielding a more libertarian form of judicial review. That's what prompted Stuart Taylor to lambast him for forfeiting the high ground. It's now anybody's guess whether, in cases where conservatives prefer a particular outcome on policy grounds, the Roberts Court will flex its judicial muscles or defer to precedent and the popular will.

'A Sea of Individual Rights'

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?"

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 ([e-mail]) is an associate editor of reason.

Comments

[Suki]

Good morning reason!

[Resident Smartass]

Good morning Suki!

[Alan Vanneman]

"Another important milestone came when President Ronald Reagan appointed conservative lawyer Edwin Meese III as attorney general in 1985."

I remember Ed Meese. Here's an exchange with Big Ed and the US News & World Report.

US News & World Report: You criticize the Miranda ruling, which gives suspects the right to have a lawyer present before police questioning. Shouldn't people, who may be innocent, have such protection?

Meese: Suspects who are innocent of a crime should. But the thing is, you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect.

"If a person is innocent of a crime, then he is not a suspect." I love that.

Meese also gave us asset confiscation and the "War" on pornography. A great conservative, I guess.

[Kolohe]

He is a great conservative. And a shitty libertarian. And the principal reason why Reagan veneration leaves me cold.

[Untermensch]

Wow. I knew Meese was bad, but the presumption of guilt surpasses my memory. It's like that spoof on "Cops" called "Troops" with Imperial Storm Troopers where they say that "All suspects are guilty or they wouldn't be suspects" at the end. (Someone will indubitably figure a way to say that I've Godwinned the thread with a comparison to Storm Troopers and that I'm like all the bleeding heart liberals out there? blah, blah, blah)

[Pro Libertate]

Godwin said nothing about Star Wars comparisons.

[Some Guy]

I was think that exact same thing when I saw the quote.

[Wegie]

Exactly, another thummper asshole.

[Wegie]

Exactly, Meese just another thumper asshole.

[AlmightyJB]

All these really does is point out the fallacy of labeling people and trying to sort individuals into boxes.

[Suki]

Try file folders and piles.

[AlmightyJB]

I've tried file folders but it's to much work to keep the blade sharp enough for those thin slices.

[Suki]

Diamond has more uses than girlfriend bait.

[William Walsh]

To the extent that Libertarians and Conservatives have a falling out is the extent that liberty has a shot.

I've never understood this Republican/Libertarian alliance. Are John McCain or Rudy Giuliani people with whom we can make common cause? George Bush?

Indeed it is the very fact or such an alliance that is part of the reason most people to laugh at libertarianism. "Yeah sure. Freedom all the way. Except for gays and immigrants. ha ha ha."

Guilt by association.

[ed]

Don't forget the anarchist fringe of libertarianism, which does much harm in discrediting the "movement," such as it is.

[Suki]

Or that fringe that accuses everybody else of being stateist if they see a need for driver's and marriage licenses.

[The Libertarian Guy]

Gonna have to disagree on the marriage license part, Suki. IMO, requiring competent, consenting adults to get what amounts to a permission slip for marriage, is not necessary and should be discouraged as a goal for the gay community.

[The Libertarian Guy]

"and should also be" or something like that. My diction not so muchly good today.

[Tony]

It's a permission slip for the benefits of marriage conferred by the issuer. Let's argue about the necessity of marriage licenses once everyone has equal access to them, how about?

[#]

if there wasnt a necessesity then treatment would be equal in that no one would need them.

[faithkills]

Yeah neither of those things are good ideas, and only the result of previous statist institutions.

But I don't lose sleep over them, there are much bigger fish.

[Squirrel]

Drivers licenses can and should be replaced by certification cards issued by private organizations like the American Automobile Association or like groups, after completing a drivers ed class. It would work much the same way as scuba diving certification works: issued by private organizations recognized in the field, and just as no reputable dive shop will sell gear or refill tanks for someone not certified, no reputable auto dealer will sell a car to someone not certified.

There is nothing fringe about this - it's easily something liberals, conservatives, and libertarians should get behind.

As it stands, drivers licenses have become de facto ID cards, which nobody should ever have to carry or show...for anything...in a so-called free country. Privatize both drivers licensing and vehicle registration, and one of the main sources of the State's control over its people goes away.

[faithkills]

Exactly. Similarly you would be much safer if your food was inspected by businesses who had actual liability in the case of contamination and a market reputation to maintain.

[ABC]

You mean the folks who are actually intellectually honest?

[Draco]

Good luck with that. Your tent is very, very small. In fact, it's probably more of a port-a-potty in the grand scheme of things.

There's more of a chance (due to unstoppable cultural change) that the conservatives will loosen up on social liberties over time than progressives will on economic liberties.

Oh, and by the way, a gay man should have the same right to marry a woman who wants to marry him as a straight man has (here I believe Walter Williams agrees with me). And any immigrant should have the same right to immigrate legally as other immigrants do, according to the laws which cover immigration. These are two positions that libertarians and conservatives can agree on.

[Some Guy]

And any immigrant should have the same right to immigrate legally as other immigrants do, according to the laws which cover immigration. These are two positions that libertarians and conservatives can agree on.

Actually, most "conservatives" wouldn't go that far (other than those who are against all immigration.) They usually support caps on immigrants from certain areas. And nobody cares aboot Canadians.

[Subsidize Me!]

You meant to add that a gay man has the right to marry any gay man that wants to marry him, or that the state's involvement in any "marraige" should be limited to the enforcement of property rights contractually agreed upon by the parties involved.

Sure, I think we could all agree with a limited-government approach such as this.

[Draco]

No. Just to be clear, that's not what I meant (but I think you know that). Marriage is a unique relationship between a man and a woman that involves legal, religious, and cultural components. That's the definition of a marriage. And as I said, gay men have just as much right to marry women (even gay women!) as straight men do. Whatever two gay men or women want to do with each other is fine with me (honest), except you can't force the culture and the religious people among us to accept it as marriage - because that would be forcing man's mind - a very evil and unwise thing to do.

I used to agree with you that the state should just get out of the "marriage business" and enforce contracts (that was my pure libertarian solution). But then I realized that it's more complicated than that.

[Ray Pew]

Whatever two gay men or women want to do with each other is fine with me (honest), except you can't force the culture and the religious people among us to accept it as marriage - because that would be forcing man's mind - a very evil and unwise thing to do.

Ummm....your argument is contradictory, since the establishment of legal structures that "define" marriage and limit it's access is an example of "forcing man's mind".

[Robert]

So language -- a result of a process by which custom settles on meanings, defining words -- forces man's mind? I suppose so, but what's the alternative? Language as a product of gov't?

Words like "spouse" came about thru custom, not gov't. No gov't decreed the meaning of marriage, custom did. It's up to custom to undo meanings, not gov't. Those who want gov't to redefine marriage are asking for a usurpation of the result of custom, a usurpation of spontaneous order in favor of privilege. It's too bad so many fail to see this and think just the opposite.

[Some Guy]

I was actually giving you the benefit of the doubt and assuming you were just pointing out how incredibly diametrically opposed conservatives and libertarians are on gay rights. It turns out you weren't nearly that clever. Thanks for clarifying.

[faithkills]

But then I realized that it's more complicated than that.

It's no more complicated than that, and no one as bigoted as you ever held that opinion.

Marriage is a unique relationship indeed. I feel sorry for people who don't really think that and think their relationship needs state or church sanction, so it can be special.. like everyone else.

My marriage is special, and the government nor the church has anything to do with, nor contributes in any way, to that.

[CJ]

I used to agree with you that the state should just get out of the "marriage business" and enforce contracts (that was my pure libertarian solution). But then I realized that it's more complicated than that.

It certainly isn't.

[Tony]

Society can certainly redefine marriage, via the application of legislation and/or appeal to constitutional protections of equal rights.

Religious beliefs only influence policy unconstitutionally, and the convictions of people are what are supposed to influence policy. Gay marriage will be accepted enough in due time, and what particular religious sects have to say about it should be irrelevant.

[Robert]

But marriage predates both religion & gov't. Marriage is not a result of religious belief, and it's not a result of legislation or decree. The most religions and laws did was recognize marriage, which pre-existed them.

People of the same sex shouldn't have a constitutional protection of equal rights in that bogus sense any more than there should be equal rights to dog licenses for cat owners.

[Thomas O.]

So if marriage predates religion, why continue to define it with religion? Why differentiate between the terms "marriage" and "civil union" then?

It just sounds to me like you're looking for an excuse to discriminate against homosexuals. If two people of the same sex love each other enough to forge a lifelong commitment to each other, they very well deserve all the perks that man-woman married couples enjoy, like hospital visitation rights and tax breaks.

[Tony]

Robert,

So retaining the traditional definition of a word trumps equal protection of the law?

[Subsidize Me!]

So rather than enjoy a right that exists but is being denied by social convention, it is better to legislate new social conventions.

Gay marriage thru affirmative action... Fabulous.

[Some Guy]

I'm going you assume you're stupid and not sarcastic, as I should have before.

Social conventions != civil law. You can personally believe whatever you want, you can deny that gay marriage exists just like some hardcore Catholics deny that divorce exists. Have fun with that.

[JT]

And no one's mind is being forced. Nobody can make you, the individual recognize their marriage. That's very collectivist thinking to think that we all have to see marriage the same as the government does.

[faithkills]

Agreed JT. I think some conservatives are individualists who just haven't thought things all the way through.

Then there's just religious collectivists who want to impose their beliefs on others just like a progressive does.

[TheFuCkinGLORD]

"Marriage is a unique relationship between a man and a woman that involves legal, religious, and cultural components"

No, you are wrong, and are a motherfucking scumbag. Go marry your mother.

[Punk]

Yea. I never quite understood that either. Just because I tend to align myself with the economic tendencies of my "conservative/Republican" friends doesn't mean I have much in common with them. Yet, they talk to me like I agree with their imperialist world view. When I start to dig into what their core beliefs are, I find them being just as much in the statist camp as my lefty friends.

The reality is that I find little critical thinking on either side. Then I just laugh at them.

[Untermensch]

We laugh because if we did not we would weep.

[Suki]

I hate that too. Not quite as bad as my soon to be ex friends who think my abandoning the Democratic party after the disaster-in-chief showed his true colors means I went KKK and Nazi or something.

[Tim]

Leftists don't seem to want or actually be able to differentiate between "right wing" and libertarian.

I'm thinking of one leftish person who said; "I can't believe you're a republican..."
I'm not, but try explaining that to people whos see the world as left or right.

[Some Guy]

A bunch of my friends think I'm a Democrat because almost everyone I know is a Republican, and I'm always explaining why they're wrong.

Also because I don't think Obama is a secret Muslim terrorist Marxist from Kenya. Or that he is substantially different from Bush.

[Tim]

That makes you enigmatic...

[faithkills]

Leftists see anyone who thinks we have some sort of natural rights is bad. Or anyone who thinks government is not the source of all good.

Most conservatives do, they just haven't thought it all the way through.

[LarryA]

I'm not, but try explaining that to people who see the world as left or right.

Actually most liberals see the world as left or wrong. To them it doesn't make any difference what you believe if it isn't liberal. Conservatives are much the same, only right. (As in conservative, not correct.)

[mad libertarian guy]

I had a friend say that libertarianism was a made-up philosophy by the tea party to make them appear to be against the republican establishment.

[Draco]

As a critical thinker, perhaps you can define "imperialist."

[Suki]

I thought he was talking about the R's who say "we should invade" when the price of something goes up. Reminded me of that as soon as I read it. No different really than those D's who hate the success of some people and want the government to take their money away.

[Tim]

I thought that the last wave was based upon our moral duty to bring democracy and grooviness to all nations...

[Suki]

That's a different thing. Liberation from tyranny would sound a little better than the usual "gas is $4.00, invade" that I and I think Punk hear these days.

[Aelhues]

Strange. I have never heard anyone say anything remotely similar to "gas is $4.00, invade", and I'm a conservative, with mostly conservative friends.

[Draco]

Right, and neither have I. In my experience, the cry of "imperialist" is usually the sign of sloppy thinking - or no thinking.

[faithkills]

When libertarians say that they usually mean 'corporatism' but they assume most conservatives and liberals won't understand the term. But you do understand imperialism, and it's not an inappropriate use.

You've probably heard of the progressive era, but have no real idea what it means. Go read some Rothbard.

The left thinks the government is good and 'big business' is bad.

The right thinks 'big business' is good, and government is bad.

Those things are the same, and on purpose.

Government maintains the oligarchs' cartels with regulations which create the monopolies they couldn't maintain in a free market.

The only good thing is at least conservatives have a more correct solution. Government power is the key, reduce that and the attraction of corruption is reduced.

The solution of the left, empowering government more, always makes things worse. It just tempts and corrupts even more business.

In a free market you have to compete with other business to be the best and cheapest.

In a planned market, as we have, you just have to compete for government influence.

[aelhues]

All of the actual information here, faith, I agree with, and strikes me as accurate, but the condescension is off-putting. I would say that in my experience, only a small portion of Republicans are for "big business", and those are the ones who gain from that support. The rest of us normal working class Republicans are simply pro-business. We wish for government to get out of the way so business can succeed or fail on their own merits, not on how well they can lobby congress.

[Astropud]

"Big business" is actually anti-business. Combined with big government you get cartels and monopolies that drive out competitors (both of that business and government). Hence the outcry over "too big to fail".

[faithkills]

@aelhues condescension was not targeted at you, it was at Draco's glib dismissal of the term 'imperialism'. however it's still a fair critique.

How do you keep a free market free?

You make it impossible to cheat by removing the mechanism, government intervention in markets. The intervention is always used to benefit government and the renter of government. IE OPA90 was supposed to protect us from oil spills. What it really did is create a tax fund for congress to waste and set a liability cap for spills. Ag Bill.. supposed to protect little farmers, actually is a corporate welfare bill that maintains big ag de facto monopoly. FCC basically creates big media's monopoly.

All regulation eventually is used to protect large powerful business from competition. That's what the progressive era was about. Regulation. Regulation essentially tacks on an artificial economy of scale that can never be innovated around. Large businesses can more efficiently abide regulatory regimes, and these regimes set a very high bar of entry.

In return the profits gained from this government protected market advantage are paid to the monopoly protection system, the government.

The Federal reserve itself is basically a monopoly on money creation and price controls on credit. Which price controls are destroying the economy as we speak.

Crony capitalism. We haven't had anything approaching a free market for a long time.

[Hate Potion Number Nine]

And the million dollar question is: How do you keep a free market free? I'm sorry but I really don't think that the honor system is going to work.

[Doc Merlin]

Agreed. I have almost never heard anyone using the price of gas as a justification to invade. I have heard people accusing others of such, though.

[Punk]

Yea, what Suki wrote. My Republican friends think somehow we should be the police of the world and take what we want or need by force. When I tell them we should close just about every military base in other countries, they just give me a confused look.

[Suki]

I thought the way they express it was something new, but older L-ish friends can cite examples from the 1970's.

[Tim]

Arabs may hate us but who the hell else are they going to sell oil to? Martians? And if they don't sell oil how are they going to pay for Cadillacs and luxury homes?

[mad libertarian guy]

Because the Chinese and Russians aren't looking to appropriate every drop of oil they can sniff. Or something.

[Aelhues]

I suggest we close over seas bases and bring troops home, as well as dramatically reduce the size of our forces, and almost never get strange looks...except from liberals.

[SIV]

Are John McCain or Rudy Giuliani people with whom we can make common cause? George Bush?

Libertarian/Strawman alliance?

[Aelhues]

As a conservative, I have major difficulties with such so called Republicans as those you named. I'll somewhat grant you the gay freedom...although I don't agree that they are less free than any others, but how are we limiting immigrant freedom? They have the same freedoms I do. Oh...wait...you mean illegal immigrants. Silly me.

[Some Guy]

but how are we limiting immigrant freedom? They have the same freedoms I do. Oh...wait...you mean illegal immigrants. Silly me.

And that's why you can never be trusted. Anyone who uses the "because it's illegal" argument to justify why something should be illegal has no place in a free society.

[aelhues]

I didn't do what you said I did. I didn't justify illegality by saying it was illegal. I simply acknowledged that there is a difference between people that immigrate with respect for our law and those who simply come on in, uninvited. Or put another way, I implied that those who come here without following our laws, don't deserve equal consideration/freedom as those that do follow our laws.

[capitol l]

So, you are saying that our rights aren't natural, or God given if you prefer, rights? They are conferred by the state at the pleasure and whim of the state?

[Some Guy]

Seems like that's exactly what he's saying to me.

[aelhues]

No, but natural rights, are not unlimited. You don't have the right to invite yourself into my home and eat my food, do you? People born in other countries don't have the natural right to move into another country, regardless of the countries laws. If you want to have that kind of argument, don't you think you should state what natural right you feel is violated by having immigration laws?

[Charles Hueter]

"You don't have the right to invite yourself into my home and eat my food, do you? People born in other countries don't have the natural right to move into another country, regardless of the countries laws."

Your analogy would hold if you assumed you are the legitimate owner of the land the immigrant crossed to get into America. Do you have that assumption?

Because I certainly don't. If a rancher in Arizona is willing to let Mexicans cross his or her land, then there's no crime there. Telling the rancher he or she can't let someone enter their property is not at all respectful of individual liberty.

[aelhues]

I think you are ignoring the national border...We as the United States, have the right to determine the standards and procedures required for entry into our country, just as any other country, company, or individual does. Someone entering private property, with permission of the land owner has nothing to do with entering the country as a whole.

[capitol l]

You don't have the right to invite yourself into my home and eat my food, do you?

This is a fallacious argument, and you know it, I will disregard it.

People born in other countries don't have the natural right to move into another country, regardless of the countries laws.

I would argue that people do have the right of movement beyond arbitrarily drawn lines.

Do you think that people should have the right to leave a country, to an inviting country, even if their government deems said emigration illegal?

If you want to have that kind of argument, don't you think you should state what natural right you feel is violated by having immigration laws?

Well, obviously, I see free movement as right of the individual.

It seems kind of silly that I have the right of free association, but only with people born in a certain area of the world or who enter that area via the proscribed method. Or that one has these natural rights, but they are null and void if you cross this line in an unapproved manner.

But, force shits upon reasons back, so what are you going to do.

As a practical matter, I do see that some immigration laws are needed, though. It is the extent of these laws which should be a policy debate, now.

[aelhues]

I'm not going to write a book in response. I'm just going to say that you make me laugh. If my argument was so obviously fallacious, I wouldn't have made it.

What really made me laugh, is that other than your philosophical freewheeling, you sound like you agree with me, as stated at the end. I'm all for discussing what our immigration laws should look like. After taking into consideration national security, I'd want laws that were as open as possible. I'd just want some provisions for new citizens to not be allowed to initially leach off the entirely too progressive (expensive) social system.

[capitol l]

First, what we agree on:

The nature of things demands that we have a controlled border for national security's sake. Also, the enormous welfare state we have deems it impractical to allow hordes of people in, that would bankrupt us(more).

If someone wants to work though, and someone wants to hire them, I see no problem letting them in...provided they are not an imminent national security threat.

On what we disagree upon:

While I do say that humans have a right to free movement, they don't have the right to come into this country with a bomb strapped to their chest.

On the "fallacy":

The reason that I deemed it such was that; Although I have no right to enter your home and eat your food, you have no right to tell me whom I can have in my home to eat my food.

[aelhues]

Or in short...we agree. I would love to say we should allow people to move about on public land as they wish, that is not practical.

That isn't a fallacy, as I didn't say you couldn't allow people on your property. The point is that we as a republic have the right to restrict access to our country. If you can get people onto your property without them having to enter our country, you can have anyone you want there. I won't stop you. 🙂

[nanda]

capital is really saying the US should not be a nation.

[Adonisus]

+1

[Adonisus]

To capitol l, that is

[Hate Potion Number Nine]

Natural Rights = The right wing version of "If it feels good, do it".

[aelhues]

Hate Potion Number Nine = Troll?

[Hate Potion Number Nine]

I'm disappointed. Even Chad can do better than that.

[capitol l]

Hate potion, if you wish to add to the conversation, by all means do so.

If you want make idiotic statements with no basis, that is you right as well.

But remember, "Better to remain silent and be thought a fool than to speak out and remove all doubt."

[Hate Potion Number Nine]

okay Mr. I. How is my statement idiotic? What is the basis of natural rights? Can you prove them through an independently verifiable and repeatable test? Can you show me where they're written in stone by hand more powerful than mans? Can you give me any evidence that doesn't require absolute faith to believe? I'm sure I can find plenty of examples in Lew Rockwell and Stormfront to back up my assertions, how about you?

[capitol l]

Well seeing as how natural rights are a precept to a school of governance philosophy, I really don't think that there is anything to verify.

One either believes that people, as reasoning creatures, have certain rights and immunities accorded to them by their very existence...or one doesn't. You, obviously, belong to the latter school of thought. Though how you came to equate Age of Enlightenment ideas with Stormfront is beyond my ken.

If we allow for relativism, and agree that force shits upon reason's back, anything goes as long as it does the most good for the most people. Your rights and your body don't belong to you, rather they are the property of society at large.

The left and right in this country vacillate from one extreme to the other on this very issue, they are strident in their defense of some untouchable rights and self-ownership...when it suits their purpose.

[Draco]

What in God's name does saying that our rights are natural, or God-given, have to do with the ludicrous proposition that any number of aliens be allowed to enter the country at will? I concede all of your liberty rights, but your right to swing your fist ends at my nose.

There is public and private property in the nation (hey, I wish a lot more of it were private!), but either way, you can't just decide "Hey, I'd like to immigrate onto that public or private property on the other side of that national border there -- and you can't stop me. I have rights you know."

[Kroneborge]

As a nation, we should still have the right to decide who gets to come in, and who doesn't.

Some pure libertarians might not like that idea, and that's fine. But for the rest of us that aren't trying to disolve the nation state, we like being able to control our borders.

Also note that border control IS one of the specific items mentioned in the consitution.

[capitol l]

your right to swing your fist ends at my nose.

This statement is meant to show as rights conflict, that your rights are inhibited in that they don't infrigne on the rights of others. If you could show that increased immigration infringes your rights I will happily concede(barring logical fallacies).

"Hey, I'd like to immigrate onto that public or private property on the other side of that national border there -- and you can't stop me. I have rights you know."

If it is private, I think that should be up to the property owner. Just like a landlord should be able to choose whom he rents to, or a business owner whom he wants to hire or sell to.

[faithkills]

I'm as libertarian as it comes. I would love to have open borders but it's a non-starter so long as we have a welfare state.

There is a solution however and the solution is simple. Immediate grant amnesty to all illegals (barring violent criminals) on the condition they may never avail themselves, or be subject to any public redistributive program. None.

This would eventually subvert the whole welfare system as former illegals became the most productive, and free, group of americans.

[EMp]

Would your amnesty grant include the right to vote in our elections? If so - then the chances of populist, axe-to-grind, grievance group-think political representation being elected to office increases exponentially, hence your desire that former illegal aliens *presto* now recognized as upstanding american citizens will vote themselves bounty from the local/state/federal coffers. JMO!

[faithkills]

No. That's the point. They are legal aliens, forever.

The penalty for claiming amnesty is permanent legal alien status.

[JoshINHB]

aelhues

One major divide between conservatives and libertarians is that conservative care about this country.

To libertatarians "country" is an illegitimate abstaction. Hence the obsession with "illegal" immigration.

[faithkills]

Bullshit. We care about the country. We care about the country where freedom was essentially made a reality.

The problem is the country has mostly undone this.

Freedom made America. (free market) Capitalism made America.

America isn't making those things anymore.

So yeah, at some point Liberty will have to be more important than loyalty to what has become a fascist state.

One would definitely hope to reverse it, but it may not be possible.

[Michael Ejercito]

I've never understood this Republican/Libertarian alliance. Are John McCain or Rudy Giuliani people with whom we can make common cause? George Bush?

With whom should you people ally?

Barack Obama?

[doofus]

Evidently. In a past thread five out of five Reason editors admitted voting for Obama. Think of that.
A community organizer is someone who agitates government long enough until government gives someone something. It was the guy's only qualification.
I'll remain suspicious of Libertarianism until one can solve the simple issue of zoning for me. The landslide Obama voting editors pretty nearly seals the deal.

[wayne]

In a past thread five out of five Reason editors admitted voting for Obama.

I have to admit, that is astonishing. I think there is a retro-virus that infects "journalists" that simply controls their minds at crucial junctures.

[faithkills]

It's called cosmotarianism.

[doofus]

Called libralism.

[faithkills]

not really. it's libertarians who want a hug from liberals.

[EMp]

Yes - have Paco pour me another martini, mmmmkay? Just love the help around here...hm..hmm..hmmmmm! 😉

[JT]

I don't think it is. After what Bush did, there would be something seriously wrong were the Republicans to win again.

[tenletters]

Then you are in the camp of those that espouse the theory that there is absolutely nothing philosophically different between the two parties?

Keep in mind, conservative repubs loathed Bush's fiscal policies, no brat left at the door, his tepidity re; McCain/Feingold and the illegals issue.

Obama was/is the biggest empty suit to enter politics since Ross Perot. What was there about the constantly repeated phrase "fundamentally change American politics", spoken by a "community organizer" backed by every avowed Marxist on the planet, that you and the five Reason editors didn't get???

[faithkills]

There is a difference, but the difference is much more the rhetoric they give when they are out of power than the amount they spend when they are in power.

The GOP is talking a great game now that they can't spend anything on themselves.

[the dip]

I believe Tenletters' point would be to intellectually select from the GOP those that would not spend. Doubtful you would also have to select from those in the GOP that would confiscate, as is our present situation with the Dems. Ergo, the difference.

[Doc Merlin]

Reason editors seem to think so, hence all the articles such as this one attacking the right, and the articles during the campaign saying that Obama wasn't so bad.

[Kroneborge]

@William Walsh

You don't have to agree with people all the time, just work with them on what you agree with and oppose them on what you don't.

Sometimes you just have to do the best you can.

[tenletters]

Then, at other times, you need to fucking think.

[Tim]

I'm trying to think of a list of libertarian "policies" that just cut against the right/left axis.

Gay people should be free and own guns?

[Suki]

Gay people should be allowed to carry concealed guns and shoot people who assault them.

[Tim]

Yes, that offends both ends.

[Aelhues]

How would that offend conservatives? I'm confused.

[Tim]

There's a good many who will tell you you are going to Hell just for believing that.
If there are Biblical literalist libertarians I have yet to hear of one.

[Tim]

Hell as in

http://www.boston.com/ae/celebrity/more_names/blog/hell.jpg

[aelhues]

What, that I think a person who has a sexual preference I find abominable has the right to carry a weapon and defend themselves against assault? I doubt that highly.

[Kroneborge]

Christians might think gays are going to hell, but that mean that they all hate gays.

Love the sinner, hate the sin.

Same applies for adulters etc.

[CJ]

The mere fact of humans having free will allows for no contradiction between being a Biblical "literalist"* and a libertarian, but if that wasn't enough then there's also the consideration that Jesus didn't attempt to overthrow the political establishment.

With that said, group-think ruins everything and the majority of modern Christianity is no exception. I'm a Christian and consider myself a libertarian (I can only say "consider myself" because notions differ), but organized religion, or at least the form it takes place in today, kind of creeps me out.

*I've never met a literal Biblical literalist, i.e. someone who would take Jesus' words to Peter that he should forgive someone who's sinned against him seventy times seven times to mean that you should forgive a person for exactly 490 sins. And I've only met a few people who believe that these two verses mean what they literally say:

11 Then God said, "Let the earth bring forth grass, the herb that yields seed, and the fruit tree that yields fruit according to its kind, whose seed is in itself, on the earth"; and it was so.

24 Then God said, "Let the earth bring forth the living creature according to its kind: cattle and creeping thing and beast of the earth, each according to its kind"; and it was so.

[Hate Potion Number Nine]

Conservatives would be getting shot then.

[Astropud]

How would that offend conservatives? I'm confused.

It's astonishing what some people think 'conservatives' believe. I tend to chalk it up to the typical ignorant stereotyping you find all over the political spectrum.

[WTF]

See Pink Pistols

[prolefeed]

I'm trying to think of a list of libertarian "policies" that just cut against the right/left axis.

Gay people should be free and own guns?

Bad example. Conservatives who believe in the 2nd are OK with heavily armed gays.

[Gabe]

Free Trade with Cuba, Iran, North Korea etc

End the Drug War
End the farm subsidies
Fuck the corn syrup lobby

End the Regressive FICA/ SS tax
End the Af/Pak/Iraq wars

Bring troops home from South Korea/Germany and Japan

Audit the Fed

No Carbon Tax - the conspiracy nuts were right...it was a scam to fuck the little guy.

Disrupt the cozy relationship between big pharma and government...see the swine flu scandal? the conspiracy nuts were right it was a scam to enrich big pharma at teh expense of the little guy.

[JT]

I don't think North Korea actually produces anything legal. It's mostly bombs and counterfeit currency.

[DWCarkuff]

All this confusion about the meanings of political designations and the distortion of those meanings is a good reason to keep it simple. There are those who believe in and advocate liberty and those who do not. Obviously, both "conservative" and "liberal" do not mean anything close to what they meant 80 years ago. Obviously Ghouliani and Dr. Paul can not both be conservatives and still have the word mean anything, though both would describe themselves that way. To some "conservative" means to conserve the principles of liberty and independence and non-interventionism on which the country was founded. To others it means whatever it is someone like Ghouliani or Dubya is. The same is true for "liberal" using other examples.

[Corduroy]

Trying to simplify something that isn't simple is not justifiable.

I think it attests more to the mendacity of politicians who intentionally warp the meaning of words. They have no connection to the truth, because the only truth to them is what will get them elected, i.e. bullshit.

[ed]

Let's not let political journalists off the hook. They confess their ignorance (and biases) daily when they equate Republicanism with libertarianism. They simply aren't very well educated, or they're liars, or both.

[Astropud]

Let's not let political journalists off the hook.

I have to agree with this. The first step to enlightenment is to recognize the journalists are people, too, with no special insight (by virtue of their profession). It's just that they are a little better at putting more than two words together.

[DWCarkuff]

Well, my view has always been that being "liberal" or "conservative" should be personal attributes and not political ones. If you accept the premise that the only legitimate purpose of government is to protect our self evident rights as described in the DOE, then there are really only two sides to the issue - the pro-liberty side and the not pro-liberty side. Now, there may be legitimate debate with respect to particular issues in terms of what constitutes protecting liberty and what does not and those are the debates we need to have, but, really, most debates these days are between those with authoritarian inclinations and those who are anti-authoritarian.

[R C Dean]

Leftists don't seem to want or actually be able to differentiate between "right wing" and libertarian.

Why should they? Right wing, conservative, libertarian, they are all benighted and malicious enemies of The People.

[DWCarkuff]

It is worth remembering that the right detests us just as vehemently as does the left. "Conservatives" in the current incarnation of the term are no more friends of liberty than are "liberals". And, in fact, are not pro-free market (unless you consider crony capitalism and the erection of barriers to entry and government protectionism for their interests and that of their friends to be free market.) I am very uncomfortable with the commonly held delusion that liberals are pro-personal liberty and that conservatives are pro-economic liberty, neither of which is actually, particularly true.

[R C Dean]

I'm trying to think of a list of libertarian "policies" that just cut against the right/left axis.

If you're looking for policies that are held pretty uniformly by libertarians, you're already down to a pretty short list.

Abolishing the FCC would be on there, for example. Getting rid of McCain-Feingold, also.

Where we differ with the lefties on economic and fiscal policy, we have at least philosophical common ground with the righties.

Where we differ with the righties on social issues, ditto with the lefties.

Unfortunately, there seems to be no appetite for coalition politics in this country. Most politicos seem to think if you're not with us on everything, we won't team up with you on anything. Otherwise, as a swing bloc, libertarians could get some things done.

[Corduroy]

Where we have achieved coalition politics, we always seem to get the exact opposite result of what libertarians would desire in a given situation.

[Some Guy]

Abolishing the FCC would be on there, for example.

Keep the FCC as a spectrum cop, just take away the unconstitutional powers that it invented for itself besides that.

[Jickerson]

That is an unconstitutional power.

[Astropud]

If you're looking for policies that are held pretty uniformly by libertarians, you're already down to a pretty short list.

It shouldn't be about specific policies, but about general principles that can be applied to various situationa. This is also true for liberals and conservatives. Too often I see some that's supposed to be about defining what some political ideology actual *is* devolve into policy prescriptions.

[Barry Loberfeld]

Conservatives and liberals have the same "judicial philosophy" ? whatever will get them the result they desire at that moment.

[Corduroy]

This.

[Aelhues]

That article was a mess. But then maybe it's because I actually think that we shouldn't be allowed to have laws that are unconstitutional. Clearly the author disagrees with me. There is after all, a provision for amending the constitution.

[Some Guy]

I have never in my life heard of someone who argued for "judicial restraint" in a case where they disagreed with the law in question.

[A is Awesome]

It's a shame to see conservatism get away from, well, actually conservative government. I think the title "conservative" should be taken away from neo-conservative big-government supporters/deniers and they should be referred to as "anti-liberals", since they support big government, but in the opposite ways of liberals.

[capitol l]

I would argue that these shifting alliances to either restraint versus activism come from fundamental differences regarding one's philosophy of government and its origin.

Basically a judge must decide where sovereignty lies and where to show deference; these are most likely to be coincidental.

Is our government the sovereign in its own right? Does the state derive its powers and purview by its mere existance? Or, is it granted certain authority by the people via the constitution and the powers enumerated there within?

This is where things get tricky, though. Most would agree that the government is of the people, with the people being the sovereign that gives the government certain powers, with restrictions, to protect the natural rights of the sovereign.

Firstly, how do we define "the people"?
Are "the people", persons;i.e. the entire population comprised of individuals?
Some, like Bork above, argue that the sovereign lies in a simple majority who enact laws through elected officials and therefore must be shown deference. A more liberal interpretation of the people only take this one step further. In that the sovereign is the government, but not by its existence, rather by the fact that, like Bork believes, the government is comprised of the elected and their proxies. The proxies could be construed as the executive branch's regulating bodies.

Also, the nature of rights is important in this discussion. Rights are either to be seen as god given, secularily as natural rights, or as granted by the government. Once one starts believing the latter abdication of so-called "natural rights" is soon to follow.

These disputes of thought are the basis for these arguments over the role of the courts. To pretend it's about the reading of the constitution is just more heat without light that passes for intelligent discourse anymore.

[James C Bennett]

"Rights" are just an awkward way of defining tyranny. Rights are ideas and, like all other ideas, they spring from human brains--not from abstractions like God or Nature, but from actual physical brains in actual physical people.

Rather than wasting time arguing about where rights come from, we should just change the way we talk about them. Rather than asserting "I have the right to free speech and freedom of the press" and getting "where did that right come from" in response, assert "governments have no legitimate power to take tyrannical actions, and prohibiting people from speaking, publishing, or otherwise expressing themselves is a tyrranical action."

[capitol l]

Well it could be argued that rights, governments, societies, etc are the abstractions themselves.

The reason for arguing that certain rights are natural rights is to avoid the tyranny of cultural relativism and majority opinion. If we have no natural rights than what matter is it if the government is tyrannical? If a majority prefer despotism who are the minority to contradict them?

The main problem with social contract theory is that eventually the wants of the majority are going to infringe on the rights of the individual. That is why Locke and others included the caveat which is the right to rebellion; i.e. renegotiating the contract.Which in a round about way begs the question as to where the sovereign lies.

If the government's powers are arbitrarily restricted than they can be arbitrarily widened.

Much greater minds than ours have pondered these exact same things for over three hundred years, I don't think it will be resolved today.

[Tony]

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[Tony]

I don't quite see how libertarians deferring to courts are being more skeptical of government than conservatives deferring to Congress. When you get down to it, one is made up of appointees and the other is elected. Both are government.

[Kroneborge]

first, I love that Reason does these longer articles like this and really digs into a topic. The topic really makes me think, what is the method of judicial prurience (hopefully that's the right word), that I would like judges to use. I think judicial restraint is an important part of that, but the most important part is making sure that it's constitutional, according to the original meaning. IMHO, that meaning requires a limited government, and lots of individual liberty. New laws should have to justify there constitutionality, instead of plaintiffs having to demonstrate their unconstitutionality. If a case was decided wrongly the first time, then it should be overturned. For example, separate but equal, was decided wrong, it was good for it to be overturned, same thing with the slaughterhouse case. There should be a presumption of liberty, NOT of government power. If the people decide that something is so important that we now need federal government, and it's not covered by the constitution, then we should amend it.

[Draco]

I completely agree with this, Kroneborge. Bravo. They should need to show where in the Constitution it grants government the power to enslave some to provide health care for others, before passing laws that require just that, for example.

Of course, given the sad state of the citizenry, they'd probably vote to amend the Constitution to make health care a "right."

[Subsidize Me!]

If the Supreme Court follows 80 years of precedent, the law will be declared constitutional under the Commerce Clause.

[capitol l]

While I agree with your comment in general,Kroneborge, prurience doesn't mean what you think it does.

Kinda funny, actually.

[Kroneborge]

I blame spell check. I thought it was giving me the wrong word.

[Kroneborge]

Next time I will just say judicial philoshpy, and stop trying to use the $2 words, lol

[capitol l]

You should have just left it and said "That is what I meant".

Make people wonder.

[Mongo]

Back in the late 80s, when I would mention that I'm a libertarian, I was always accused of being a Lyndon LaRouche-backer even though I would point out that he was a Democrat. I would, then in turn, be shown articles from major newspapers/magazines stating that LaRouche was a libertarian! Only when the presidential voting day arrived could I point out the obvious mis-information proffered by those media numbskulls. It still plays out today....

[ChrisO]

I have no doubt that the Founders drafted the Constitution primarily with the intent to limit the power of the federal government over the states.

To the Founders, the states had a greater degree of sovereignty than we credit them with today, and the federal government was more akin to the modern European Union than to the current behemoth on the Potomac.

Their working assumption was that the states were a repository of liberty against a tyrannical central government. So what happens when the states themselves become a haven of tyranny? I don't believe the U.S. Constitution has the answer to that.

When the public's appetite is so much strongly in favor of regulation and coercion than for liberty (on both left and right), there is no form of government that can safeguard liberty. The notion of judicial review as the ultimate "thin black line" protecting individual liberty against both state and federal tyranny is untenable, when governments in the country have gone so far beyond their originally intended scope--and almost completely with the consent of the governed.

[aelhues]

The advantage to states having enough room to be tyrannical is that there are 50 states. I can fairly easily move to another state that I think has more fair and reasonable laws. When it's the federal government being tyrannical, I don't have the same easy option to escape. State governments have to compete for people, and businesses. So do the feds, to some much lesser degree, but they don't act like it.

[ChrisO]

The states as 'laboratories of democracy' is a valid point, but in a nation full of people willing and eager to oppress and steal from their neighbors, I'm not sure that the laboratory is going to function effectively.

When the federal government crashes spectacularly in a few years, it will be interesting to see how the states respond. Do we become Switzerland or Argentina?

[Astropud]

The advantage to states having enough room to be tyrannical is that there are 50 states. I can fairly easily move to another state that I think has more fair and reasonable laws.

That's why I tend to be a strong federalist (if that's the right term). Power should be pushed as local as possible. If California , for example, becomes a basket case because of unions, over-spending, etc. Anyone can just move to another state and let nature take its course. If some group wants to impement their own ideas, let them. If it doesn't work, people can move. If all 50 states go down the drain, we're screwed anyway.

[Subsidize Me!]

So what happens when the states themselves become a haven of tyranny? I don't believe the U.S. Constitution has the answer to that.

Sure it does - the Priveleges or Immunities Clause of the 14th Amendment (when properly interpreted).

From the article:
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 conservative interpretation of P&I (and the ninth amendment) leaves a lot to be desired, to say the least.

[ChrisO]

I think you can pin your hopes on the Privileges & Immunities Clause at this point.

I agree that it might have been a better roadmap for protecting individual liberties than the incorporation or substantive due process doctrines have been.

One problem is that the Civil War amendments effectively distorted the structure of the original Constitution. An expansive reading of the Privileges & Immunities Clause basically renders the Fourteenth Amendment redundant, and there is no way the Supreme Court is ever going to go for that.

[ChrisO]

It should say, "I *don't* think you can pin your hopes on the Privileges & Immunities Clause at this point."

[Doc Merlin]

Once the idea of positive rights was invented, P&I became a tool that could be used to oppress, by forcing redistribution.

[Kroneborge]

I really don't think so. People don't have privleges or immunities to other people's property. Only their own.

[ChrisO]

You apparently don't understand the entitlement mindset. People think they have a 'right' to health care now. It wouldn't be that difficult to interpret the P&I Clause in that direction if you wanted to.

That was my larger point. In a society of entitlement whores, original intent is probably a moot point, and relying on judicial review as a bulwark against oppression is probably futile. We may be beyond the point of turning this thing around without a crisis.

[Tony]

Can't we invent new rights? It's been happening a long time. Women didn't have an inherent right to vote before they were legally granted the ability, and it's absurd to argue that they did. Most of the civilization on this planet has invented the right to health care, and the ones who have are very arguably better off than the ones who haven't.

"Entitlement whore" is not much better than "uppity negro." Hell yes we can and should be entitled to health care. And there's more of a moral case for that than the entitlement those with all the wealth claim they have for lower taxes.

[Robert]

Each state has its constitution too.

[otherhmm]

ChrisO, what about the 14th's Immunities?

[otherhmm]

OOps.. didn't read down far enough...

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[Han Solo]

Well, one thing conservatives have correct. If liberals have shifted the warzone to the courts they actually WOULD be stupid to not fight there as well. It would be handing defeat to the liberals.

[OhioOrrin]

judicial activism = decisions one doesnt agree with.

[Don Tremaine]

judicial activism is when the opinion does not agree with the constitutions meaning and purpose. It has nothing to do with agreeing with any side; it's about being right or wrong. In the case of the second amendment only a moron could really believe that "the people" in the second amendment means "the state". Whereas the tenth amendment speaks of both "the people" and "the states", and are clearly identified separately. The 14th amendment clearly states that the states are not allowed to make laws that infringe on any freedom in the bill of rights. I can not think of anything in the government that is spelled out more clearly.
Don

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[IAdmitIAmCrazy]

Full disclosure: I'm one of those dreaded Europeans, and, no, I am not a libertarian.
I really liked Damon's presentation as it fits into my world view that simple dichotomies aren't helpful at all. Thus how do you classify me: an economic communalist with strong libertarian tendencies when it comes to civil liberties. An oxymoron?
Sure, if you are a principled libertarian you can be extremely coherent. Thus, in a way I admired the bravery of Rand Paul when he tackled the imposed contract portion of the Civil Rights Act. He didn't explain himself very well but he stood by his principles even when confronted with the very unpleasant consequences of his stand. I'm not that principled, and while I am willing to suffer "hate speech" in defence of the gretaer goods of the First Amendment, I won't stand for discrimination in business dealings. (That Rand Paul practically caved - well, you need alliances if you want to get elected; you won't get the whole libertarian pie but you might get some part of it - thus, I don't really blame him).
Thus, on immigration I think the principled libertarian stand is that it is an individual right. And I wonder what unenumerated rights the Ninth Amendment holds for you. How about the right to privacy as one right in the "sea of liberty"?
Having said that, I think it is detrimental to view "the liberals" as monolithic, and I have a hard time to lump Elena Kagan together with Glenn Greenwald. Once you are able to appreciate nuances in your opponent and - most importantly - are willing to collaborate on specific issues (Fourth Amendment, anyone?) you might start to realize that there is the possibility of mutual respect for principled differences.
There are two viable ways of solving political differences: a majority vote and a court's protection of minority and individual rights. Therefore, the mere fact that a legislature or even the sovereign hirself voted for a law doesn't impede the rightful court to declare it unconstitutional.
However, the talk of the "tyranny of the majority" disregards a simple fact: While the preponderance of the Constitution is certainly on the side of the individual, there were battles already fought about the original document between libertarian and statists of the time.
It is therefore no surprise that even an "originalist" reading of the constitution will produce different results depending on the political outlook of today's "reader".
Declaring that the libertarian reading of the constitution is the only acceptable one and stacking SCOTUS with libertarians to avert the "tyranny of the majority", strikes me as highly problematic.
If you can convince others like me in a tedious day to day battle that there is merit on a specific point, the perceived legitimacy of the court will suffer. However much you dislike it, we live in some sort of a community, a "polis" and politics is unavoidable - and be it just politics to warrant the maximal realization of libertarian values.
Just dispensing others as statist morons is denying one basic human characteristic: most of the time, no: particularly when we are absolutely convinced that we are right, we are wrong. I miss the humility that goes along with recognizing this lementary truth in far too many libertarians - let alone conservatives and - horribile dictu - liberals.

[Chris]

What if you are both a conservative and a libertarian. Socially one thing but fiscally another.

[EMp]

I think this description, Chris, is a very large (not the majority, however...) percentage of what the TEA party consists of, and definitely the lions' share of Dr. Ron Pauls' followers...

[Dan]

either way their idiotic and pathetic, when will we cull conservatives, the stupid sad racist phenomenom that has plagued the minds of americans.

each time I hear about the tea party I laugh

[Jonathan]

Regarding McDonald v. Chicago: consider the Illinois State Constitution Article I, section 22:
"Right to Arms - Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."
So by their own constitution, neither Illinois nor the subordinate local governments may inhibit the right of the individual person to keep and bear arms, unless police power deems it necessary (martial law). Reasonably, that would also include handguns. Chicago, by preventing handgun ownership, is infringing the rights as guaranteed by the Illinois State Constitution.
This is a recurring issue. Most state constititions either spell out the individual citizen's rights or acknowledge the US Consitution as the superior document, adopting any rights de jure as listed therein. One could then argue that McDonald is not an issue of Federal rights being foisted upon the states as mandates, but that it is a suit for relief of the violation of guaranteed rights acknoledged by the states, in cases where said right is enumerated or inferred due to acceptance of the US Constitution.

[spintreebob schmidt]

Immigration and National Security/defense are the two main issues that divide. It is amazing the number of conservatives who rail against big government as being inept as well as unconstitutional. And then they place amazing faith in a big government solution on immigration and nation building.

That paradox illustrates that the real problem is with the logical inconsistency of conservatives.

On the other hand, libertarians would be well advised to compromise their logical purity for pragmatic solutions that move us in the right direction, even if they are a compromise from trying to reach utopia in a single bound.

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[Lisa]

It's not judicial activism for the Supreme Court to strike down a law that's unconstitutional.

[Don Tremaine]

The supreme courts role is to rule only on the constitutionality of laws. The proper way is to amend the constitution if needed. The majority or popularity has no place in rulings in the supreme court. There are 4 justices in the supreme court that should be taken to task for violating their oath to uphold the constitution. If they do not like the constitution they need to take that up using the proper venue, a constitutional convention, not the court.

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"America's beleaguered conservatives have kept so busy surviving that they have paid scant attention to an enormous fissure in their ranks," wrote William F. Buckley in 1954. This "fissure" Buckley spoke of was in regards to the Soviet Union, but the animus behind this rift ran much deeper: what Buckley called the "conservative movement" was, in reality an uneasy alliance between two groups, conservatives and libertarians, who forged a coalition in hopes of defeating the leviathan state. Once in bed, however, the two parties quickly realized their respective world-views made cordiality next to impossible ? foreign policy regarding the Soviet Union only brought this animosity to the surface. Buckley was correct, however, in that these two groups had worked so hard to survive, they had failed to realize the vast chasm that separated them.

[sbo]

The polite tone and tenor of Mr. Buckley's 1954 remarks had all but vanished by his 1971 New York Times commentary, "The Conservative Reply." Here, Buckley attempts to read Murray Rothbard and the rest of the "moral naifs" out of the conservative movement. "The ideological licentiousness that rages through America today makes anarchy attractive to the simple-minded. Even to the ingeniously simple-minded," opined Buckley. Obviously something had occurred during the course of these 17 years to prompt Buckley, and the rest of the "conservative" movement to distance themselves from the growing band of libertarians (anarchists and minarchists alike) ? the question is what?

[sbo]

Certainly anarchism was not a new phenomenon to the libertarian movement. Buckley was an early disciple of Albert Jay Nock, self-described anarchist. Frank Chodorov, one of Buckley's closest friends was, in some manner or form, an anarchist. F.A. "Baldy" Harper, who left the Foundation for Economic Education and later went on to form the Institute for Humane Studies in 1961, was an anarchist.

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