Supreme Court

Libertarianism at the Supreme Court: Obamacare Under Fire, Gay Marriage on the Rise


In my new book Overruled: The Long War for Control of the U.S. Supreme Court, I chronicle the libertarian legal movement's 30-year campaign to persuade judges and lawyers on both the left and right to view the Constitution as a broad charter of individual rights that simultaneously places strict limits on the exercise of government power. Last week's big legal developments in the areas of gay marriage and Obamacare confirm that the libertarian legal movement is now helping to set the national pace.

On Thursday, conservative Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit voted to affirm gay marriage bans imposed by four states. With that decision, the federal circuits are now split over the legality of gay marriage. Translation: The Supreme Court is likely to step in. One day later, the Supreme Court returned to the fray over the Patient Protection and Affordable Care Act, agreeing to hear a statutory challenge to the legal basis on which more than 30 federally established health care exchanges are offering tax subsidies to individuals who purchased health insurance under Obamacare.

The common denominator here is that the libertarian legal movement has played a leading role in challenging both instances of government action. As I explain in my book, libertarian lawyers have been at the fore of the gay rights fight for the last decade, including in Lawrence v. Texas (2003), where an amicus brief filed by the Cato Institute's Center for Constitutional Studies played a key role in the Court's decision to invalidate Texas' ban on "homosexual conduct." As for Obamacare, the libertarian legal movement has been central to its opposition from day one.

With gay marriage on the rise and Obamacare facing yet another deadly legal threat, 2015 is shaping up to be a very libertarian year at the Supreme Court.

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  1. ...2015 is shaping up to be a very libertarian year at the Supreme Court.

    And it could all come to a screeching halt as the statists on the court have their say.

  2. If the Supreme Court rules the way it should on the Burwell case I look forward to angry, hysterical outpouring of grief directed at conservatives and libertarians.

    Just look at how much they are losing their minds over the simple fact that it's been agreed to be heard by the court. That's how disconnected they are from reality.

    1. "rules the way it should"

      It's a PENALTAX! I'd pretty much lost faith in the court before - Roberts' "reasoning" in the initial PPACA decision sealed it.

      I have no trust they'll EVER "rule the way they should". Half this shit shouldn't be going to the Supremes anyway. The country federalizes EVERYTHING now. It's all US constitution (mostly perversions of it) when 90% of this shit is none on the US govt's business and is properly decided at the state and local level (even when I disagree with the outcome).



    2. Burwell is one of those cases that should be 9-0. "The law says, in plain English, that only state exchanges get subsidies. We have public statements of Obamacare architects that this was intended. No contest."

      But there will a faction of the Court, hopefully a minority one, that will twist themselves into knots to justify the administration's desires. I'll bet every one of them was appointed by a Democrat, which is one reason it matters which party the President is from.

      (Yes, I know: Roberts. But at least with GOP nominees, they often make the right decisions. With Democrats, they rarely do.)

      1. "But there will a faction of the Court, hopefully a minority one, that will twist themselves into knots to justify the administration's desires. "

        You should see Bo's post from yesterday where he twisted himself into a pretzel trying to explain how the Feds have a reasonable argument, despite the wording, and the intent of the wording, being clear as day.

  3. Lawrence v. Texas had nothing to do with gay marriage, the judicial institution of which didn't take place until very decidedly un-libertarian activists got involved in the issue, and libertarian lawyers were unsuccessful in challenging Obamacare. You'd be better off trying to force this meme wrt issues where libertarians can at least ambiguously take credit for something.

  4. What exactly is a "Libertarian" Supreme Court and how would it be different than a court committed to reading the document in the way it was intended? It seems to me that the size and scope of government would be greatly reduced if the Court would just go back to reading the document, the necessary and proper and commerce clauses in particular, as it was originally intended. And that is not a "Libertarian" interpretation. It is an originalist one.

    If a "Libertarian" Supreme Court means creating a results driven judicial doctrine to torture the document in whatever way necessary to give the Libertarian result, I don't think Libertarians are going to like the results as much as they think they will. Such decisions rather than setting a firm far reaching precedent, are more likely to be limited to their facts and leave lower courts the freedom to do decidedly illiberal things.

    1. And that is not a "Libertarian" interpretation. It is an originalist one.

      The two are not mutually exclusive.

      1. Are they? That was my question. And I didn't ask it to be a smart ass. I am not sure if they are because I am not seeing just exactly what a Libertarian interpretation is.

        1. I don't know what an EXACT libertarian interpretation is (if I thought about it I might tell you what THIS libertarian's interpretation is), but it generally falls on the side of less government. Which is where many originalist interpretations fall as well. That's where they overlap. They're not mutually exclusive.

          1. I think the Constitution as written allows the government, the state governments in particular, the ability to enforce a lot of lousy laws. For example, I don't see how the Constitution prohibits states from making drugs illegal or the Feds from making the importation of drugs into the country illegal.

            I do, however, think if properly read the feds have no business enforcing drug laws of any kind that don't involve the importation of drugs into the country or taking them across state lines. That still leaves a lot of room for prohibition though.

            1. Like I said, not mutually exclusive, meaning there is some overlap.

    2. how would it be different than a court committed to reading the document in the way it was intended?

      The constitution isn't, strictly speaking, a libertarian document, so an originalist reading wouldn't necessarily lead to the ideal libertarian outcome. But then ensuring a particular outcome shouldn't be the job of a court to begin with. Theoretically speaking, judges should be unbiased, so there shouldn't be any such thing as a justice with an ideological prefix. Or rather, the ideological prefix shouldn't determine their ruling - only the rules of the system they are using to adjudicate should matter.

      1. The constitution isn't, strictly speaking, a libertarian document, so an originalist reading wouldn't necessarily lead to the ideal libertarian outcome. But then ensuring a particular outcome shouldn't be the job of a court to begin with.

        Both of these things. If we don't like the was the const works, there are ways to change it (that have been used before).

        But I fear the bending and twisting of one TEAM or the other has gone on for so long that it won't abate now...


      2. I agree. I don't think the Constitution is a "Libertarian Document". But nothing in it prohibits a Libertarian government.

        Take the example of gay marriage. I don't think the Constitution mandates the states recognize gay marriage. I do not however see any reasonable way to say it prohibits it either. If Court went back to reading Constitution as it was intended rather than as an evolving document, a whole lot of rotten government overreach would go away. And Libertarians would be free to argue for and hopefully win their policies through the democratic process.

        If Libertarians take the short cut and embrace results driven interpretation, they might win a few issues the easy way. But it will come at the cost of leaving the current interpretations of the commerce clause and such in place and losing a lot of moral standing when objecting to Progressives using a results based jurisprudence to get their policies.

        1. I'd more or less agree with that. An originalist interpretation of the constitution probably wouldn't even find grounds for SCOTUS to hear marriage issues. Article IV Section 1 would probably be the extent of the issue from an originalist perspective. We're so far removed from a constitutionally constrained government or court that even debating the point is mostly theoretical. The ideal justice, though, wouldn't necessarily rule a libertarian outcome into every case, because a consistently-applied constitution won't always lead to libertarian outcomes, and the justices should be neutral arbiters. So I'm not sure what a theoretical "libertarian court" would look like, and frankly I find the term a little creepy because it sounds, as you point out, like a results-driven approach to law.

          1. If being Libertarian means embracing judicial tyranny that shoves various "good results" down the throat of an unwilling public, I pass.

            It really comes down to what you value you more, the consent of the governed or liberty itself. At some point all of us will fall to one side or the other on an issue. No matter how big you are on consent of the governed, if a law is truly immoral the courts need to step in and tell the majority to get bent.

            The question is where is that line. I think the line is somewhere short of every good libertarian policy or result. I hate the drug war but I don't see how the courts have the right to tell the public they can't ban drugs if that is what they want. I think the courts can absolutely limit how those laws are enforced (i.e. consistent with privacy, autonomy and the 4th Amendment) but not that they can exist.

            Others would say no. That personal autonomy is so supreme that the courts should step in and stop it even if doing so involves telling the majority to fuck off and using whatever means of Constitutional interpretation necessary to do the job.

            1. "I believe the Constitution should be amended with a clause which states that neither the federal nor any state government shall make any activity that does not violate, through force or fraud, a persons right to life, liberty or property, a crime."
              -Neal Boortz

              That would be a good place to draw the line.

              1. It would be. I think that the only proper sphere of government is in the commons. That means government can do things like provide for a common defense or for fair adjudication of disputes among people. No government has a right to go beyond that sphere. So no government has the right to regulate what someone thinks or what they do within the privacy of their own home or out of the public sphere.

                So for example, if the government wants to ban the sell of drugs or the importation of them or being intoxicated in public, have fun. But no one government should be able to make possession of drugs in the home or use of drugs in private illegal. Same with porn. You want to zone out a strip club, that sucks but such is life. But no government should be able to ban the viewing of any material, even child porn, in the privacy of one's home or the obtaining of such over the internet or via private mail. Sales, distribution to other people, fine. But there should be an absolute hard line between what people do in private and what people do with other people or in public such that it becomes a matter for government.

                1. How does zoning, or restricting trade not violate private property rights?

            2. Well, the court's job is precisely to decide whether or not laws comport with the rules laid out in the supreme governing document of the legal system, which is the constitution. There may be good-faith disagreements as to what that entails, but the process shouldn't be concerned with the outcomes from an ideological standpoint.

              For an extreme example, even an abolitionist judge shouldn't have ruled to overturn slavery during the time when it was still authorized by the constitution, despite his views of the actual morality of the law.

          2. Also, to the extent that there might conceivably exist a "libertarian court", whatever that might entail, from a results-based libertarian activism to a neutral originalism, this one certainly isn't it, and Root knows it since he's reported extensively for Reason on the court's long string of liberty-shredding rulings.

            The "libertarian moment" meme is pathetic when Gillespie pushes it, but he may at least be sincere (if retarded). There's no way Root actually believes this court is swept up in a "libertarian moment", and it's fairly insulting that Reason thinks its readers are stupid enough to buy that. Stick to the millennials' affinity for highly-taxed recreational pot and public accommodations for gays, it plays to the narrative better than a SCOTUS that has done precisely fuck all to advance liberty in the last 2 decades.

            1. The problem with a "Libertarian Court" is that without a very strict understanding of what constitutes a "right", such a court would quickly devolve into tyranny. Right can very easily turn from negative restraints on government to positive and coercive obligations on other people. One person's right to "gay marriage" can easily become another person's obligation to recognize it. One person's right to take drugs can easily become another person's obligation to accept that use (as in hire the person regardless of it) or worse pay for it.

              1. A theoretical libertarian court would presumably reject the entire class of positive rights, but here again, that's not necessarily a good thing - the constitution makes room for certain positive rights, and the proper venue for correcting that is the amendment or political process, not the judicial process. As I said, this court isn't libertarian in any conceivable sense of the word anyway, but I'm uncomfortable with the term for precisely that reason. It seems to entail a libertarian coup d'?tat via the judiciary, which isn't the proper venue for it (and again, isn't happening anyway - but even from a purely theoretical/philosophical perspective).

                1. I have come to the conclusion that there is no such thing as a positive right. Rights are totally restraints on government. They are either things that government can't do or they are things the government can only do if they provide you with some kind of due process.

                  So for example, you don't have a "right to a jury trial". The government is prohibited from taking away your freedom without giving you a jury trial. You don't have a "right to privacy". The government cannot violate your person or possessions unless they have probable cause to believe you have committed a crime and so forth.

                  I think once you start referring to rights as positive things, people quickly turn them into affirmative obligations on other people rather than the government. It also creates the false impression that freedom is not the default position and instead of being free to do whatever we like we are only free to do things which we "have a right to do". No. We are free to do anything we like. It is just sometimes the government is also free to stop us from doing those things or punish us for doing them. The entire issue is about the government not us.

                  1. I think once you start referring to rights as positive things, people quickly turn them into affirmative obligations on other people rather than the government.

                    That's the traditional definition of a "positive right", which is why libertarians and classical liberals reject them. It's basically the difference between the American and French revolutionary ideals. I've always liked the way this piece handles the subject and differentiates between the two.

                    1. It is very semantic PM. I don't think there is any "right" that can't be conceived strictly as a prohibition or obligation placed on government. Since the entire debate is about government, I don't see any reason why it shouldn't be phrased that way.

                      In the private sphere I really don't have and shouldn't have a right to anything that I can't pay for or do on my own. My "rights" all relate to the government and limiting its ability to stop me from doing something I would like to do.

                  2. Well put, John.

      3. The first time I read the Constitution, I was struck by how bland and technical it was. I'm not sure exactly what I was expecting, but I think I expected more of a philosophical tract outlining how great limited government and personal liberty is.

        But the Constitution is not a philosophical treatise. It's a legal document and it is decidedly federalist.

        However, it was written by classical liberals and it undeniably seeks to promote/protect classically liberal values. So to the extent that classical liberalism belongs under the libertarian umbrella, the Constitution certainly strikes a libertarian tone.

        1. I think the entire document should be interpreted in light of the Declaration of Independence and the Preamble. The Declaration gives the philosophy behind the Constitution. And it says in particular that

          We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

          All men are created equal and thus must be treated so by the government and the government and every person has the right to pursue happiness as they see fit. The entire bill of rights should be intrerpreted as a means of achieving that general goal.

          And the preamble tells you how to interpret the rest of the document because it tells you the purpose of it.
          It says

          We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity

          If the government action doesn't strictly speaking fit one of those purposes, it is not authorized under the Constitution.

          1. I would say if the action doesn't fall within one of the 17 enumerated powers listed in the Constitution AND fit one of those purposes its unconstitutional.

            1. I would agree. But even if it does fall under one of those powers, it still isn't valid if it isn't for the purposes listed in the preamble. The preamble should be in addition to the restrictions listed in the rest of the document.

          2. We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.

            I literally cannot read that without singing it in my head!

            /70's kid

  5. Gay marriage is a good example of this. If the Supreme Court is going to go "Libertarian" and declare that a state refusing to recognize gay marriage is no different than a state refusing to recognize interracial marriage, then discrimination based on sexual orientation will now be considered with the same level of scrutiny as discrimination based on race or religion. If that is the case, then except to see the CRA applied to discrimination based on sexual preference just like it applies to race religion and sex now. If the government is going to decide to provide protection against discrimination on those factors, it cannot leave gays off the list if discrimination based on sexual preference is treated the same as racial discrimination under the equal protection clause.

    1. Here in Maine about ten years ago they added sexual orientation to the list of protected classes, swearing up and down that anyone who claimed that was the first step towards changing the legal definition of marriage was an unhinged nutter. Before the ink was dry, the very same people launched a court challenge to the legal definition of marriage.

    2. I fail to see what's "libertarian" about gay marriage. The last I heard, libertarianism only requires the state not interfere in your business. It doesn't require society to endorse it or enable it.

      1. I agree. To me the Libertarian fight was already won when the Supreme Court struck down the sodomy laws. The marriage debate is about people's ability to get access to government sanction of their relationships not about the freedom to have those relationships.

        I have never understood why Libertarians have jumped on the gay marriage cause so hard. The Libertarian issue is the issue of being able to live in peace under whatever relationship you like. And that battle was won when the sodomy laws went down.

        1. I have never understood why Libertarians have jumped on the gay marriage cause so hard.

          To impress their progtard friends I'm guessing. I don't have any progtard friends (lost the last one over a minimum wage debate), so I don't give a shit. Not that I would if I did.

        2. It seems to fundamentally derive from a confusion of legal equality for liberty. Civil marriage is inherently anti-liberty. There's an egalitarian argument to be made about access to the institution, but it's along the same lines as universal occupational licensing or equal access to welfare.

        3. I won't speak for others, but this libertarian supports gay marriage because

          1) I don't think government should be in the business of enforcing morality
          2) I've never heard a good argument for denying marriage licenses to homosexuals; it always circles back to enforcing morality
          3) I think the government should apply the law equally. There are certainly valid exceptions to that (children, etc.), but equal application of the law is the goal. And more to the point, given 1) and 2) homosexuality is not a valid exception to equal application of the law.

          It really is that simple. The consequences are not simple, but that is the fault of decidedly unulibertarian aspects of our current system.

          1. 1) I don't think government should be in the business of enforcing morality

            Neither do I but marriage licensing doesn't do that. Family laws are practical laws for how to create and dissolve private unions. The SOCONs who claim they are moral laws are wrong.

            2) I've never heard a good argument for denying marriage licenses to homosexuals; it always circles back to enforcing morality

            Not true. It goes back to religious liberty. State sanctioned marriage is all about making people recognize unions. When the state does that it necessarily forces people who object to gay marriage to recognize them. Also, the debate is not about whether gay marriage is a good idea. It is about does the Constitution require it. Maybe it is a great idea but something that the states don't have to do.

            3) I think the government should apply the law equally.

            Sure they should. But that doesn't mean they can't make any distinctions. The states are perfectly free to say "since recognizing gay marriage requires us to violate some people's religious freedom and we don't want to set up a two tiered marriage system by making special exceptions for gay marriage, we are not recognizing gay marriage" under the equal protection clause. They only are not free to do that if you consider sexual preference to be a distinction like race or religion and thus subject to greater scrutiny.

          2. " The consequences are not simple, but that is the fault of decidedly unulibertarian aspects of our current system."

            But given those aspects of our current system, I think libertarians should be much more cautious about the positions they take. Gay marriage through judicial fiat means that gays are automatically a protected class under public accommodation laws and therefore people will be threatened with the loss of liberty and property for refusing service. Gay marriage via state legislation wouldn't force other people to violate their conscience. No matter how much gay marriage and PA laws should be separate issues, pursuing it through the courts joins them at the hip.

            Think of it this way, the drug war and gun control are separate issues, but if there was a bill in congress that would end the drug war but criminalize all gun ownership they would be tied together as it relates to that method of ending the WOD. Would anyone here actually advocate for that bill to become law?

          3. 1) I don't think government should be in the business of enforcing morality

            You most certainly do, unless you're an anarchist. Every law enforces some common notion of morality. The goal should be to enforce a morality as minimal and universal as possible to prevent potential conflicts. Prohibition of murder and rape tends to be pretty uncontroversial, for instance. Sanctioning certain people's relationships with government benefits arguably violates this tenet outright by definition.

            Your 2 and 3, while possibly valid and interesting points of argument, have exactly nothing to do with libertarianism. Ironically, 3 is a moral judgement that you would like to see imposed by the government that you don't think should be in the business of enforcing morality. Egalitarianism is arguably a noble moral judgement, but you should still recognize it for what it is.

  6. I'm all for letting the gays get as married as they want to. But I'm not for them being able to force me to let them get married on my property.

    1. This, exactly. I'm with Walter Williams - you wanna discriminate on the basis of ANYTHING in your business? Go ahead.

      Far too radical for most humans these days. We're far more civilized than that, and will cage you if you don't bake a cake for all who ask it.

    2. The thing is that when sodomy laws were stuck down, gays could get married. Gays were getting married in states that don't have gay marriage all of the time. They just couldn't get a license. But they could live as married couple and call themselves married.

      The other thing is that once some states recognized gay marriage, the P&I Clause and the Full Faith and Credit Clause limits what the other states could really do in terms of not recognizing gay marriages.

      For example, lets say a gay couple in Texas went to Vermont on a long weekend and got married. If they later divorced, I don't see how a Texas Court could refuse to recognize the Vermont marriage. Since there would be no gay marriage law in Texas, the court would probably under choice of law just apply Vermont law to the Divorce. I don't see how Texas consistent with the Full Faith and Credit clause could refuse the recognize the marriage if one of the parties died intestate. And no state could consistent with the P&I clause declare a gay couple living as married to be illegal.

      Once one state decided to recognize gay marriage, a whole lot of the issue could have been solved by courts just enforcing the P&I and Full Faith and Credit clauses. And it would have avoided a lot of the coercion issues associated with doing it universally in the name of equal protection.

      1. This. The proper federal response to gay marriage should have been that marriage recognition is a state power not a federal power. The federal government must recognize any state recognized marriage, and all states must recognize each others' marriages, but no state should be required to issue licenses for any marriages its citizens and legislature don't choose to. (SLD applies)

        Will this lead to 50 different definitions of marriage? Dam'betcha. That's the way the Constitution is written.

        1. And we already have 50 different definitions of marriage. States have all kinds of rules on things how long you must be a resident to get married, how distant of a relative you have to be to get married (first cousin marriages are legal in a couple of states but not in the others), if a blood test is required or what constitutes a common law marriage.

          The federal system has handled these sorts of differences fine. It could have handled uneven recognition of gay marriage fine as well.

  7. I support judicial checks on overweening govt power, but I don't like a judge-centric view of the Constitution by which legislative bodies andcexecutive authorities adopt policies and let the courts figure out if they're constitutional.

    Congress should repeal, or refuse to adopt, unconstitutional laws, even or especially if activist courts have upheld such laws, (upholding unconstitutional laws *is* activist).

    look at the way congress shows at least some respect for the second amendment without waiting for the courts. They should do thatvwith the rest of the Constitution.

    It's not about "h8w should the courts interpret the constitution," but "how should *everyone* interpret the Constitution?"

  8. RE: OCare, I work in a Hospital and sit near the cust svc area where people sometimes come in personally to talk about their bills.
    Today a black man, I believe in his 60's, came in, and he stated that he thought the Affordable Care Act (he used that term) would "take care of" the procedure he had. I also overheard him saying that now he knows what the Republicans are talking about. He also mentioned how he maintains a certain amount in his checking account to cover his $800 rent for the senior living apt bldg he lives in, and how that causes him to not qualify for something (I could not not follow what that something was"
    It was just an interesting conversation to overhear, and the second time I've overheard someone saying they thought they wouldn't have to pay anything because of OCare.

    I've said all along that OCare was going nowhere because of the free shit brigade and media propaganda. John, and some others, has (have) continually stated that as this hits more and more people in the real world the backlash will be big enough to possibly repeal this monstrosity. Hopefully the optimists are right for once.

  9. OK me again, since the article references The GAYZ.

    My prog friend has been ordered to take a tolerance and diversity class at work. Per my friend, the guy in the next cube over was talking to his husband about all the things he wants to do to him. After a while my friend walked over and asked if he could keep his personal conversations more personal. So the guy goes to my friend's boss. The boss, who is also gay, tells him he needs to be more tolerant and assigns him to said class.

    So between thsi and my above post, I should be in schadenfraude heaven today, but I'm not. I'm just annoyed and pissed.

    1. Wow. Seriously, do those two fuckers think they are helping themselves or other gays by making it such that hiring a gay person means having an employee whom the rules won't apply to? And as a bonus hiring a gay manager means ensuring unequal treatment for any straight managers? That is the lesson I would take from that. The next gay person that walks through the door can go fuck himself no matter how qualified he is.

      It is just so counter productive and appalling. Your employer better hope there are no women working in your section. There is as far as I know no "if its gay sex it doesn't count" exception to the sexual harassment and hostile work environment laws.

  10. Is Gay Marriage on the Rise? Or is the Medical Dangers of Sodomy on the rise?

    Why not have a public dialogue on the medical safety of Sodomy, gay and straight, and ask these two simple medical questions?

    That is, Doesn't the medical community recommend that you, "Wash your hands after you go to the bathroom."?

    Yet, now there are some in the medical community that now say it's OK to "Sleep with the waste that gets flushed down in the toilet?" and that it's possible to live a perfectly normal life.

    Additionally, the same can be said that there are some in the medical community that now say it's OK to "Lick the toilet bowl" and that it's also possible to live a perfectly normal life.

    1. Not all gays commit sodomy. And whatever the risks, that is their problem not the government or anyone else' problem.

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