Antonin Scalia

Do Libertarians Have Too Much Influence Over the Conservative Legal Movement?

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In April the Federalist Society bestowed its ninth annual Lifetime Service Award on Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit. Appointed to that court by President Ronald Reagan in 1984, Wilkinson is a respected judicial conservative whose name was frequently mentioned as a possible Supreme Court nominee during the early years of the George W. Bush presidency.

These days, however, Wilkinson is perhaps better known for his barbed critiques of fellow judicial conservatives. For example, after the Supreme Court ruled in District of Columbia v. Heller (2008) that the Second Amendment secures an individual right to keep and bear arms, not a collective one, Wilkinson unloaded on Justice Antonin Scalia's majority opinion, describing it as a work of right-wing 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." Indeed, Wilkinson even compared Scalia's Heller opinion to the Court's recognition of a right to abortion in Roe v. Wade (1973), which, as I observed at the time, "is about the worst thing one judicial conservative could say to another."

Wilkinson sounded a similar warning on the night he received the Federalist Society's Lifetime Service Award. His acceptance speech has now been published in the legal journal The Green Bag under the title "The Lost Arts of Judicial Restraint," and it offers a fascinating perspective on the current state of conservative legal thought. As Wilkinson tells it, the conservative legal movement has reached a crossroads, with the longstanding "tension between libertarian conservatives and traditionalists" dangerously out of balance. "At present," he worries, "the libertarian view seems to be in the ascendency among conservatives." He continues,

Of course, this strain has a valued place, but I fear increasingly that libertarians seek that place at the expense of those who hold to a more traditional and communitarian faith. Today, we speak of individual liberty as if the word "individual" were the only adjective that could possibly modify the noun….

To see liberty purely in terms of individual rights is too cramped a view. Democratic liberty is no less real for reflecting a collective view. I am dismayed when I see conservatives leap to the vaguest of phrases in our Constitution such as "privileges or immunities," the Contracts Clause, the Ninth Amendment, and the Due Process Clause to establish their own set of textually nebulous bases on which to overturn enacted law.  

This emerging jurisprudence is nothing but a thinly veiled assault upon labor, social welfare, and environmental legislation, the infirmities of which are political, not constitutional in character. This assault further runs the risk of simply mimicking on the right what I always thought gave us greatest pause in the legal arguments of our opponents.

Setting aside Wilkinson's debatable assertion about what counts as a vague constitutional provision, he is undoubtedly correct that libertarian legal scholars and activists have pushed the conservative legal movement in a direction that's more friendly to individual rights and more skeptical towards government assertions of power. Like it or not, libertarians have become major players on the American legal scene.

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  1. What the hell is “collective liberty” if not the sum of the liberty of each individual member of the collective?

    Give me an example of a situaton where an individual is not free but the “collective” is, and I’ll give you an example of oppression.

    1. It’s the sort of freedom that allows a large group of people to force a smaller group of people to obey their will. The sort of thing that Tony advocates for, for example, when white voters were free to collectively force black people to ride in the back of the bus or use separate bathrooms.

      1. Wilkinson’s argument is that gun bans are illegal under the constitution ONLY for a well regulated state militia. Since D.C. is not a state, he’s basically arguing that gun bans in D.C. are completely constitutional.

        In other words, collective liberty is a liberty you only have if you join a special club run by the state! Hooray freedom!

    2. Might makes right.

    3. I didn’t understand that argument either. If only individuals had the freedom to choose who they associate with… we could call it Freedom of Association; no that’s stupid. How about “collective liberty”?

    4. Thanks HM. You saved me some typing.

  2. I am dismayed when I see conservatives leap to the vaguest of phrases in our Constitution such as “privileges or immunities,” the Contracts Clause, the Ninth Amendment, and the Due Process Clause to establish their own set of textually nebulous bases on which to overturn enacted law.

    This motherfucker is charged with fully understanding and interpreting the Constitution???

  3. Um, there is no such thing as collective liberty.

    It is physicially impossible for a group I belong to to have the right/power to do something which I may not personally do because if it did then I would defacto have that right as well.

    1. Might makes right.

    2. How about a requirement that only couples, and not single persons, be allowed to adopt children, so that they will have, at least at the time of their adoption, 2 parents? That’s not law everywhere, but it’s a law that could be justified on grounds that are not anti-liberty.

      How about the requirement that legal disputes be settled by a jury, so that a minimum number of persons, not fewer, will decide cases? How about the rules of evidence observed in some places & times in certain cases requiring a minimum number of witnesses to an act?

      I bet you can think of more now that I’ve shown you the way.

  4. This emerging jurisprudence is nothing but a thinly veiled assault upon labor, social welfare, and environmental legislation, the infirmities of which are political, not constitutional in character.

    I’m not legal expert, but a lot of those issues DO have constitutional problems with them.

    1. Not with the SCOTUS to wave the magic “Commerce Clause” and make the constitutional problems disappear.

      1. No, no, it’s all a tax these days.

        1. Taxes all the way down.

      2. Because, obviously, the founders took the time to write the Constitution only to nullify it in its entirety with the CC.

        1. That’s what passes for logic these days.

    2. Moreover, libertarians already have answers to those issues grounded in contract law and property rights.

      I can’t stand people who constantly argue as if under a libertarian system there would be NO environmental protection or labor rights whatsoever.

      An employment contract is a CONTRACT. The equal protection clause means that both employer and employee have to live up to their ends of the contract. Equally!

      Polluting someone’s ground water is a violation of their property rights. They can sue! Isn’t that what we do half the time already?

      (Arguably, coastal landowners could in theory file a collective class-action lawsuit against the coal industry for global warming.)

      1. In theory, our system of government is a kind of contract, embodied in writing in the federal and state constitutions. Granted, the acceptance of its terms was initially by other people, but the idea is that we supposedly consent to its application by not doing anything to change it or remove it altogether.

        Of course, the terms of the agreement have been unilaterally changed outside of the prescribed methods for making changes to it, so the government is in material breach. I say we sue or send a termination notice.

        1. Exactly. If the constitution is a “social contract”, then the idea of arbitrarily reinterpreting the meaning instead of going through the process of amending the constitution as they are supposed to, is a violation of the rights of every America citizen.
          If the government can’t be held to it’s end of the contract then the people have no obligation to follow the law.

          That means that effectively all of the economic regulation that came out of New Deal jurisprudence is invalid. They could have amendeded the constitution to allow this level of federal control of industry, but they didn’t, because it wouldn’t have passed. That’s a violation of the “social contract” that’s been going on for 70 years.

  5. Now the right is saying Libertarians control everything.

    Libertarianism are to the current political class what the Illuminati were a century ago: A convenient bogeyman on which everything can be blamed, no matter how contradictory the claims.

    1. I prefer to see us more as the Free Masons. At one point there was was actually an anti-Masonic party, so Free Mason paranoia is the best kind of paranoia.

  6. To see liberty purely in terms of individual rights is too cramped a view. Democratic liberty is no less real for reflecting a collective view.

    You’re depriving me of my right to deprive you of your rights!

    1. Exactly!
      Libertarians seek to force those who use force to stop using force!
      Libertarianism is oppression!

      1. THIS IS WHAT TONY ACTUALLY BELIEVES.

  7. Just in case Tulpa doesn’t read this in the homeless guy thread:

    Complimentary use of electrical outlets is implied in many public and private places these days. You can go in to a private McDonalds or a city owned train station, or a library and see people with laptops and shit plugged in. I have never seen any formal indication of whether it is okay or not, people just do it. The proper police response would have been first to tell the bum not to plug shit in. Tulpa is a cocksucker.

    1. Electricity should be free for everybody.

      1. It is, just go rub a balloon on your head….

        Viola Free Electricity

        1. I have always found that there are too many musical instruments in my electricity…

  8. libertarians seek that place at the expense of those who hold to a more traditional and communitarian faith.

    Fuck you and the “communitarianism” you rode in on, Bub.

  9. This emerging jurisprudence is nothing but a thinly veiled assault upon labor, social welfare, and environmental legislation

    Tell me again what makes this bozo a “conservative”.

    1. He hates teh gayz

  10. This emerging jurisprudence is nothing but a thinly veiled assault upon labor, social welfare, and environmental legislation…

    Wait, this guy is a conservative, and he’s complaining about that?

    1. Not sure what this guy is.

      1. Statist.

  11. I suppose some people consider “judicial conservatism” to be exactly the same thing as “judicial deference”.

  12. Wilkinson and the Federalist Society can both have carnal relations with themselves.

    At least the *National Review* conservatives knew that social conservatives and libertarians stood or fell together. Frank Meyer even said that the two movements were fundamentally connected at a philosophical level, so that if either one abandoned the other, it was selling out its own principles.

    Now the mutual cannibalism is proceeding, for the enjoyment of statists and cultural revolutionaries everywhere.

    1. Eddy, FUCK the Social Conservatives. If it wasn’t for their dickery, I’d be a Republican.

      1. You’d be cool with their big spending, so long as they didn’t discuss abortion?

        1. If only we had a party that was willing to offer a more frugal, dime-store version of the New Free Shit Deal.

        2. You’d be cool with their big spending

          Again, for emphasis: If it wasn’t for their dickery. If you think someone like Santorum, a darling of social conservatives, is a small spender, you’re out of your mind.

          1. I didn’t say Santorum was a small spender.

            In fact, he wants to do what I rejected above – purge one of the members of the former socon/libertarian coalition.

            I might as well say, “if you think Attila the Hun was a pacifist,” etc.

        3. 1. No. Until recently, about the time the SCs took over, the Republican party was the party of small government (not saying the two are related).

          2. I don’t give a SHIT about abortion. I see both sides of the argument and I could care less how it resolves itself.

          BUT, here are my problems with social conservatives:

          Gambling, prostitution, drugs, alcohol, gays, women in combat, Muslim hate, and any other social issue that the statist right thinks they need to control.

          Let’s get something straight Eddy. I don’t give a fuck what you believe. If you want to live your life devoted to some invisible man who lives in the sky and a 2000 year old book. GOOD, have a nut. That’s your business. When you try pushing your fucking self proclaimed “moral” bullshit on me through legislation, I draw the line.

          There is NO common ground between myself and socons. They are as immoral as the left is on fiscal policy.

          1. To borrow something I said on another threat:

            When the Scarecrow from the Wizard of Oz held his family reunion, there weren’t as many straw men as in your post.

            My whole point is that people like Wilkinson and Santa-orum are idiots for trying to separate their socon cause from the cause of liberty, just like libertarian who reject the “social issues” are idiots for mirror-image reasons.

            The people trying to put gamblers in jail are covered by my critique of Wilkinson, Santa-orum and their ilk.

            1. …Wilkinson and Santa-orum are idiots for trying to separate their socon cause from the cause of liberty…

              And my point is, there is no overlap. Socons are anti-liberty. The two positions are mutually exclusive.

          2. No, actually about the time so-cons got to be big in the GOP (late 1970s) is when that party changed from basically a moderate party to one that was both more libertarian and more traditionalist. And that’s largely because the trads were also against redistribution and in favor of looser regulations on business in general than the moderates were.

    2. Those were the same conservatives who advocated for a totalitarian government at home to fight the scourge of communism; I think their judgement was so flawed as to be utterly worthless.

      1. Given their premises – that the Soviets and ChiComs wanted to enslave the entire world – then a militant response is not automatically to be ruled out. Not that I approve of all the NR folks endorsed in the name of anticommunism.

        And even at the height of the Vietnam War, Meyer was for abolishing the draft, and WF Buckley was for ending the War on Dope. So they didn’t fully let Communism blind them to the value of liberty.

        1. then a totalitarian response is still to be automatically ruled out

          Fixed.

          So they didn’t fully let Communism blind them to the value of liberty in regard to their pet issues.

          Fixed again. You sure make a lot of mistakes in your posts.

          1. liberty was one of their pet issues.

        2. No, W.F. Buckley was not against the war on dope at that time. That came about 2 decades later.

    3. What the fuck does disapproving of naked breasts and rap lyrics have to do (philosophically) with libertarianism?

      1. If you’re talking about pure libertarianism in the strictly philosophical sense, then the answer is “nothing.”

        But to someone who recognizes the link between statism and (say) the growth of single motherhood, then these “cultural issues” aren’t as sealed off from libertarian issues as one might think.

        1. Ahhh, so you are a believer in the notion that wet roads cause rain. I see.

          1. see below.

        2. And what is wrong with single motherhood?

          1. Only that guys from broken homes are more likely to go in for crime and similar antisocial behavior which in turn leads to demands for greater social controls by the state. And girls from broken homes tend to repeat the cycle.

            1. Is a single-parent home necessarily “broken”?

            2. If that’s so, how come the increase in single parent homes has coincided with a decades long decline in the levels of violent crime?

              1. When do you start measuring? What if you started, say, at the time of the Moynihan Report, when the great and the good pooh-poohed any link between family structure and crime? How did things work out since then, taken as a whole?

            3. Having a bitch ass “housewife” mother who doesn’t work and stays at home and is annoying and is an envious cunt is far worse than having a single mother who works even if she is a bitch also.

            4. I don’t care what anyone is LIKELY to do. I only care after they’ve actually DONE it. This is EXACTLY why I hate socons. They are more than willing to legislate based on likelihood, never taking the rights of those who WON’T commit a crime into consideration.

      2. Nothing. Conservatism, in its purest form is literally a reactionary movement trying to halt change. They may have an ethical system they are trying to preserve, or they can have no rationale at all other than “change bad”

        It’s not the first time I’ve encountered social conservatives trying to yoke their movement to libertarianism to try to give it a moral justification.

        And it’s really farcical: non-initiation of force has nothing at all to do with your sex-life and entertainment choices.

        1. It’s difficult to miss the “coincidence” that the Sexual Revolution coincided with a spike in out-of-wedlock births and a corresponding growth in demand for government services to fill the gaps left by the collapse of traditional family structures. And the growing single-woman vote relying on government to serve the functions traditionally performed by a husband (financial support + screwing).

          1. Correlation != Causation

            Tell me which is more likely to be the cause of the explosion on out of wedlock births?

            The sexual revolution, in an era where the Pill came into existance and abortion was legalized.

            Government welfare programs subsidizing the and to some extent even outright encouraging out of wedlock births?

            1. That is what the Frank Meyers of the world would say – that statism and immorality go together. It’s not the job of the govt to enforce or subsidize morality, so by extension it shouldn’t be enforcing or subsidizing immorality, either.

              1. Morality and immorality are subjective.

                1. Is stealing moral or immoral?

                  1. Is sex out of wedlock moral or immoral?

          2. Or, you could argue that the increased individual liberty of women over the last century resulted in more of them choosing to raise a child alone rather than remain in a loveless (and often abusive) relationship with a man.
            That’s an increase in individual liberty, not a decline in “traditional values”.

            I also don’t see a necessary connection between more freedom for women to become single mothers and more welfare. It’s our entitlement culture and the welfare state in general that makes any hardship a claim upon other’s resources, whether it involves single motherhood or a bad back. Given that old-age retirement programs (not WIC) are our biggest entitlement problem, you can hardly blame the rise of the entitlement culture on single mothers.

            1. I simply suggest that with more kids raised in traditional homes – the mom-and-dad kind – there’d be less crime and dependency, not that it would solve all problems.

              I am also suggesting that straights should not be so quick to be insulted at the suggestion that they might behave anti-socially in response to govt incentives, since they sure seem to have done so with the normalization of single motherhood and the like.

              1. Are you saying “single-motherhood promotes welfare” or “welfare promotes single-motherhood”?

                If it is the former, then you’ve got the cart before the horse, if the latter, then the problem is the incentives, not the act of being a single mother.

                People have every right to be single mothers if they are willing to pay for their kid themselves, and not foist it upon society. Which two-parent families are equally good at.

            2. More women becoming single mothers did not drive more welfare, but welfare did drive more women to become single mothers if for no other reason than it made it economically possible for them.

              Also remember, we are not talking about today, but rather the 1960’s and 1970’s when old age programs were not the largest forms of welfare.

              One of the very few things that government actually got right in our lifetimes were the welfare reforms of the Clinton administration. While the steriotype of the “welfare queens” was overblown in the 80’s it was a large enough phenomon to be a problem and with the welfare reforms of the 90’s the system is largely one not worth complaining about. Sure it could be reformed further and made even better, and from a purely theoretical standpoint we’d be better off if it was replaced by private solutions but it is a reasonably effective solution to poverty as it stands and there are far worse programs to be tackled first.

              1. Personally i’m of the opinion that the Clinton welfare reforms did not go far enough. There’s still a HUGE dependency culture, as the welfare-to-work requirement only applies to PART of the program.

                Moreover Social Security Disability has risen up to replace the perpetual welfare of the 80s. Probably with many of the same people mooching of the latter as the former.

                Which again points out that it’s our old-age retirement programs that are the worst offenders right now.

            3. “I simply suggest that with more kids raised in traditional homes – the mom-and-dad kind – there’d be less crime and dependency”

              I suggest that’s a load of shit. All that really matters is the stability and responsibleness of the custodial figures, no matter whether the child is raised by one person or five. Douchebag moms or dads lead to douchebag children on ritalin.

          3. Like you, I blame the women’s vote for our long decline into an all-consuming socialist welfare-state leviathan.

      3. If there’s anything psychology has taught me Hazel, it’s that entertainment and women are always at fault. It’s always the mother’s fault, otherwise those kids wouldn’t get into any of that Devil music!

    4. I thought the Federalist society was libertarian. At lest in a kinda-sorta-wishy-washy way. By giving this dooshammer an award they have proven me wrong.

      1. You obviously weren’t paying enough att’n to them before. They’ve always been “conservatives” + libertarians. But this is a common combination; “conservatives” tend to count libertarians as among them, not so much vice versa but a little of that too.

  13. guys from broken homes are more likely to go in for crime and similar antisocial behavior which in turn leads to demands for greater social controls by the state. And girls from broken homes tend to repeat the cycle.

    Based on personal observation, this talking point was not well received when spouted by Romney. How many votes did it actually change? I cannot say.

    I definitely heard people bitching agitatedly about what a horrible thing it was to say.

    My advice? STFU on the So Con talking points.

    1. I didn’t vote for Romney, so I don’t care how many votes he lost.

    2. So-Con observations are fine, and often correct, as long as they have no contribution to any discussion about public *government* policy.

      “Young single teens should really be aware that getting pregnant is a solid way to make yourself poor forever”. – this obvsersation is inoffensive and correct.

      “Government should do something about single-moms.” – FUCK OFF SO-CON

      1. I’m okay with NOT INCENTIVIZING single motherhood by not handing out welfare.

        But as for bitching about how single-motherhood is some vast social ill that needs to be remedied by government-promoted marriage, you know, fuck off social cons.

  14. I didn’t vote for Romney, so I don’t care how many votes he lost.

    You wrote in George Wallace, right?

    1. George Wallace was a big-government guy, as WF Buckley pointed out at the time.

  15. Thanks for the article. This guy needs to understand Libertarianism is about rights and voluntary mutualism, not his straw man.

    For info on people using voluntary Libertarian tools on similar and other issues worldwide, please see the non-partisan Libertarian International Organization @ http://www.Libertarian-International.org ….

  16. “more friendly to individual rights and more skeptical towards government assertions of power.”

    Except when that power is exercised by an unelected handful of geezers who take it upon themselves to decide what society ought to want.

  17. This redefinition of “judicial activism” is just as nefarious as the modern redefinition of racism. Judge Wilkinson’s charge would only be true if conservative justices created constitutional law to support their preconceived political positions (ie…declaring the 14th Amendment outlaws abortion.)

    Libertarians and Social Conservatives can find some small common ground where the left uses force and the public purse to push it’s social agenda. It is silly to make permanent enemies (or permanent friends). In today’s America, social conservatives can be used to progress freedom, though sadly, only in limited ways.

    1. Well, this is true, for example, the contraception mandate is an offense to both religious freedom and individual liberty.
      The problem is that by mixing it up with the social conservatives who honestly think birth control is some sort of devil’s brew designed to turn women into lacivious succubi and corrupt our morals, we’re only giving ammo to the leftists who are running around going “OMG!!!! OMG!!! They want to BAN BIRTH CONTROL!!!! OMFG!!!”

      1. The problem is most social conservatives do not oppose birth control (there are a couple other sects, but anti-BC is a Roman Catholic thing.)

        School choice (want prayer in school? teach creationism?), privatizing art, taking science off the public teat also come to mind as issues that motivate SOCONS could be used to actually advance liberty.

        “OMG!!!! OMG!!!” was left’s reaction to the mere suggestion that they should pay even a dime to their own BC needs, I’m supposed to take them seriously?

        1. People on the other side often fail to distinguish between different factions of the opposing camp.

          Thus … by associating iwth people like Santorum who actually do want to ban birth control, Republicans enable leftists to portray ALL of them as wanting to ban birth control.

          The only way to stop this is to make it LOUD and CLEAR that you don’t share their opinion by disassociating oneself from those social cons who do.

          1. Big mistake to concentrate on defining yourself by what you’re not. You wind up running away from this faction and that faction much that eventually you can’t stand near anybody.

  18. “libertarians” and “influence”? HAHAHA

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