Peter Lawler, a conservative professor of government at Berry College, and Ilya Somin, a libertarian professor of law at George Mason University, recently conducted a fascinating debate inspired by my new book Overruled: The Long War for Control of the U.S. Supreme Court. Reviewing the book at the Volokh Conspiracy, Somin kindly described Overruled as "an impressive account of the conflict over judicial review between conservatives and libertarians." In a nutshell, libertarians think the courts should actively police the other branches of government and strike down overreaching laws. Many conservatives, by contrast, favor the philosophy of judicial deference championed by early 20th century Justice Oliver Wendell Holmes Jr., who declared, "a law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell."
Writing in response to Somin at the Library of Law & Liberty, Lawler stands up for the conservatives. Yes, he concedes, the libertarian view "maximizes individualism" by consistently championing both "social liberalism" and "economic conservatism" in court. But a problem arises, Lawler maintains, when "the judiciary interposes itself in political controversies while operating under an understanding of liberty that is deeply questionable and surely time-bound." As evidence of the judiciary's questionable defense of liberty, Lawler points to the Supreme Court's decisions in favor of privacy rights and gay rights, among other issues.
Lawler is absolutely correct that the libertarian and conservative legal movements have come to grips on these fronts. But as I argue in Overruled, the fissure goes much deeper than the debate over "social liberalism." Indeed, the fault-line originates with two very different interpretations of the U.S. Constitution. For example, according to the revered conservative jurist and legal theorist Robert Bork, under our system of government, "in wide areas of life, majorities are entitled to rule, if they wish, simply because they are majorities." For Bork, that meant the courts should butt out of most legal disputes and instead let the democratic process run its course. (Chief Justice John Roberts invoked that very sort of judicial deference when he upheld Obamacare in 2012.)
In comparison, here's how the libertarian legal theorist Stephen Macedo responded to Bork:
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.
In other words, it's a clash of constitutional visions between the libertarians and the Holmes-Bork devotees.
In his review of Overruled, Ilya Somin concludes that the libertarian legal movement is currently on the rise. But he also notes that the other side is "unlikely [to] give up without a fight." Peter Lawler's eloquent defense of old-school legal conservatism is further proof that this fight is not over yet.