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"?