Supreme Court

The Ever-Expanding Commerce Clause vs. "Libertarian Anti-Government Activism"

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At the blog of the American Constitution Society, Simon Lazarus of the left-wing Senior Citizens Law Center praises conservative 6th Circuit Judge Jeffery Sutton for his judicial restraint in upholding the constitutionality of ObamaCare's health insurance mandate. No surprise there. But check out this little jab Lazarus took at the libertarian legal movement. According to Lazarus, Judge Sutton

clearly recognizes that, at bottom, this litigation is the latest phase of a fierce three decade-old war between two schools of conservative constitutionalism: on the one hand, the long dominant mainstream conservative vision celebrating judicial restraint, respect for precedent, and deference to elected decision-makers; on the other, libertarian anti-government activism, which had been confined to a small cadre of fervent but marginalized enthusiasts until 2010, when the tea party mobilized and opposition to ACA became Republican Party orthodoxy.

Lazarus is correct that conservatives and libertarians have been battling over legal ideas for the past few decades, but unless my calendar was printed incorrectly, District of Columbia v. Heller and McDonald v. Chicago, two landmark Supreme Court victories won by libertarian lawyers using libertarian legal arguments, both predate the Tea Party movement and its electoral success. In those two cases, the libertarians won by citing the text and history of the Second Amendment and the 14th Amendment, respectively. Since when is relying on the Constitution's explicit guarantees of individual liberty an example of "anti-government activism"?

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  1. Since when is relying on the Constitution’s explicit guarantees of individual liberty an example of “anti-government activism”?

    Since it became a very convenient pogrom against anybody who became a bit tired of ever-expanding government.

    1. Right. They always call citing the constitution “anti-government activism.” See also Citizens United. If Kelo or Gonzales v. Raich had gone the other way, it would have been used there, too.

  2. “conservative 6th Circuit Judge Jeffery Sutton”

    He must be conservative, because he was appointed by George “When someone is hurting, government has got to move” Bush. That may be the attitude of *some* conservatives, but if so it hardly represents all conservatives, or what used to be considered the conservative philosophy.

    Remember the GW Bush administration, when people like Lazarus were praising the President for his moderate, responsible conservatism and all the good policies to which this led? You don’t? Come to think of it, neither do I. I seem to recall that, when he was in office, GW Bush was a radical right-winger.

    1. (At least according to his critics on the left).

  3. The Constitution is anti-government because it puts limits on government.

    The people who wrote the Constitution and founded our central government were obviously anti-government.

    Same with anyone who references the Constitution to limit government.

    If you don’t want government to do everything, then you want government to do nothing, and you are anti-government.

    1. I doubt the anti-Federalists would agree with you….

  4. Responsible conservatives like David Brooks support Obama!

  5. What’s even funnier is that Lazarus is implicitly denouncing the “libertarian activism” in not only Heller and McDonald but in Citizens United as well. I thought conservatives were supportive of those decisions.

    1. And, related, I’m curious if he celebrated Kelo and/or Gonzales v. Raich.

  6. Since when is relying on the Constitution’s explicit guarantees of individual liberty an example of “anti-government activism”?

    Since 1789.

  7. Man it’s great to see social democrats really get behind the whole “Liberaltarian” program! Things are finally starting to come together!

    http://lewrockwell.com/gregory/gregory217.html

  8. Since when is relying on the Constitution’s explicit guarantees of individual liberty an example of “anti-government activism”?

    Freedom is slavery!!

  9. “Since when is relying on the Constitution […]”

    That old thing?

    1. It is over 2000 years old and written in Sanskrit. How is anyone supposed to know what it means?

  10. Liberals for Borkism!

    Well, perhaps we shouldn’t be too surprised. From HERE:

    Another recent demonstration of this can be found in Reason: Why Liberals Will Win the Battle for America by Clintonite Robert Reich, who explains that “Radcons” — radical conservatives — “believe in virtuous behavior. People should act in ways that promote the public good. Robert Bork warns of the ‘radical individualism’ of those who ‘wish to be unhindered in the pursuit of pleasure.'” And Reich responds how? Does he condemn this viewpoint as a quintessential conservative evil? Does he counter that respecting the rights of all people to act in ways they choose promotes — indeed, constitutes — the public good? Does he affirm, as a quintessential liberal alternative, the unalienable right of each man to the pursuit of his own happiness? On the contrary: “Bork is right. But rather than worry about the unhindered pursuit of carnal pleasure, Bork and other Radcons should worry about the uninhibited pursuit of wealth and power.” So, whereas radical conservatives want to punish the indulgence of lust and worldly pleasures with laws that violate the First Amendment, reasonable liberals will win the battle for America by punishing the indulgence of greed and worldly goods …

    1. So, whereas radical conservatives want to punish the indulgence of lust and worldly pleasures with laws that violate the First Amendment, reasonable liberals will win the battle for America by punishing the indulgence of greed and worldly goods …

      One side wants to control your spirit and the other wants to control your ass. The spiritual and the material realms.

  11. “Since when is relying on the Constitution’s explicit guarantees of individual liberty an example of “anti-government activism”?”

    When quoting history and facts out context, or ignoring important facts to do it as was the case in Heller.

  12. Since when is relying on the Constitution’s explicit guarantees of individual liberty an example of “anti-government activism”?

    Tony? What say you?

    1. Do you need to be bored ?

      1. Actually I’m in a good mood today, so I don’t know why I’m stirring the hornets nest…

        I should leave it alone.

  13. …a small cadre of fervent but marginalized enthusiasts…

    This sounds suspiciously like the mainstream media explanations for Ron Paul’s continuing success in winning straw polls, raising funds, and organizing volunteers nationally, compared to media-anointed top tier contenders like Tim Pawlenty and Jon Huntsman.

  14. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true.

  15. …on the other, libertarian anti-government activism, which had been confined to a small cadre of fervent but marginalized enthusiasts until 2010, when the tea party mobilized and opposition to ACA became Republican Party orthodoxy.

    Hmm. Now it dawns on me why the left hates the tea party so much – they associate it with libertarians and fear that libertarian ideas are becoming more widespread and influential.

  16. So, what are the odds that we could get an amendment passed that eliminates the commerce clause altogether?

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