Supreme Court

Liberal Pundit Says Damon Root's New Book Threatens 'the Foundation of Western Social Democracy'

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At The Washington Monthly, liberal legal pundit Michael O'Donnell has a review of my new book Overruled: The Long War for Control of the U.S. Supreme Court. According to O'Donnell, Overruled "is a sober, well-researched, and thoughtful case for the libertarian point of view on judicial issues ranging from gun control to economic regulation." What can I say? I'm grateful for those kind words. But in fairness to O'Donnell, he also added the following caveat: "Like most libertarians, Root cares more about principle than orthodoxy; hence his book is no partisan screed. Yet he is representative of libertarians in another way as well. His positions sound reasonable until you begin thinking through their implications, at which point you realize just how radical they are."

How radical are my positions? According to O'Donnell, Overruled threatens to tear the very fabric of civilized life. He writes:

[Libertarians] care more about themselves than about the community. Libertarians resent paying taxes, and they hate red tape and overreaching government. Fair enough: who doesn't? But then again, sometimes taxes fund important social goods and even red tape can serve a purpose…. This sort of trade-off is the foundation of Western social democracy. Some regulations are overbearing and some are pointless. The answer is to improve them, not to scrap all regulation. If libertarians get their way, there will be no more red tape, but also no more sunsets: just toxins and smog.

Notice the false dichotomy. Everyone must suffer "pointless" regulations or else the evil libertarians will "scrap all regulation" and everyone will die. But what about a third option? Why not just scrap the pointless regulations and leave the essential ones in place? That third option is the libertarian legal approach detailed at length in my book. Yet O'Donnell appears to have skipped those chapters—or at least failed to process the concepts they contain.

And I'm sorry to disappoint the anarchists out there, but Overruled does not in fact make the case for "scrap[ping] all regulation." What it does do is explain why the libertarian legal movement views the Constitution as a liberty document which protects a broad range of individual rights against arbitrary and unnecessary government infringement. What counts as arbitrary and unnecessary government infringement? In the context of economic regulation by state and local governments, the answer depends on whether the law in question serves a legitimate and verifiable public health or safety purpose. If the regulation fails to serve such a purpose, then the courts should strike it down for violating the economic liberty protected by the 14th Amendment. If the law serves such a purpose, it gets to remain on the books.

Here's an example from history. In the 1905 case of Lochner v. New York, the Supreme Court struck down a provision of New York's 1895 Bakeshop Act which capped the working hours of bakery employees. According to the Court's opinion, that regulation did nothing to improve the health or safety of those workers, nor did it do anything to improve the health or safety of the bread-eating public. It "is not, within any fair meaning of the term, a health law." Yet in that very same opinion, the Court went on to affirm the legitimacy of numerous other regulations imposed by the very same Bakeshop Act, such as "inspection of the premises," "height of ceiling," and "providing proper drainage, plumbing, and painting." In other words, under Lochner, a case widely celebrated by today's legal libertarians, the Supreme Court held that sometimes economic regulations are permissible under the Constitution and sometimes they are not. So much for "scrap[ping] all regulation."

It would appear that O'Donnell, in his rush to publish a cartoonish distortion of the libertarian legal movement, inadvertently revealed his own weak grasp of both history and the law.

NEXT: Moses Can't Go Home Again; Exodus: Gods And Kings Banned in Egypt

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  1. Well now i have to read it.

    1. I know, it’s sitting right there in my pile of to-read books, making me look smarter to all of my office visitors.

      1. It’s on my nightstand. Too bad I don’t read in bed.

    2. I killed it in 2 days. Its a quick and engrossing read.

      1. ..I should have pointed out that I am a notoriously slow reader.

  2. It would appear that O’Donnell, in his rush to publish a cartoonish distortion of the libertarian legal movement, inadvertently revealed his own weak grasp of both history and the law.

    Without their army of straw men, the left would have no arguments against libertarians.

    1. Once, when I told acquaintances that I am a libertarian, they immediately raised up an entire straw army. When I called one of them on it, he refused to acknowledge that there was anything wrong with doing so.

      1. I try to avoid the subject. So many people have so many misconceptions about libertarianism that it is rarely worth the trouble in trying to clear things up. Especially because they forget everything you tell them once they return to the hive.

        1. A good way to tell who is honest, and who isn’t, in your life.

          1. Commas:

            A good way to tell who is honest, and who isn’t in your life.

            1. Grammar:

              A good way to tell who is an asshole on the internet.

            2. A good way to tell who is honest from who isn’t in your life.

              or

              A good way to tell, in your life, who is honest from who isn’t.

              And I LOVE commas! And apostrophes used where they belong!
              🙂

        2. Same here, it’s not worth the trouble of trying to explain what libertarianism really is to mouth breathing morons who will be back tomorrow spouting the same strawman arguments like an alzheimer patient.

        3. I told my mother in law i was a libertarian. She responded, “What’s that?” I simply stated the non aggression principle. She said that makes sense, and then later went on about how she doesn’t think it’s a bad thing that California is banning plastic bags and taxing paper bags. facepalm.

      2. Yep. It’s always “fun” to tell a person that I’m a libertarian, and then let them tell me what it is I believe.

        1. I enjoy telling people am a libertarian and then NOT explaining why or defending against strawman arguments if they’re brought up.

          I’ve converted several people with this strategy. Given, they were all young men – people who are, imo, prone to embrace libertarianism.

          Plant seeds. People who are curious and open inevitable ask questions.

          1. Sure, I usually let people get their righteous anger out, and then say, “No, I don’t believe that at all!” I don’t know if I’ve really converted anyone out there, but I have gotten some partisans to show a little respect and understanding.

            1. but I have gotten some partisans to show a little respect and understanding.

              For how long? A day? An hour?

              Thing is, once you correct them and they go back to their social group, they are faced with a choice. They can correct their peers (and face the possibility being ostracized), or forget what you told them. More often then not they choose to forget.

        2. ^This.

          I always ask them to define the two principles of libertarianism, then tell them I’m happy to debate them once they can demonstrate even a basic understanding of the philosophy.

          1. Anybody that doesn’t know what the NAP is when they go on a rant about my being a libertarian gets immediately ignored (like I literally turn my back to them or pull out my phone and start playing a game).

            1. It’s hard enough already for the rest of us to try to win people over to our side; it’s hard enough already to try to educate them about our actual beliefs, as opposed to the cartoon version they’re taught by our enemies every day. So in that light — thanks so much for your efforts! Your derision and rudeness to those we would try to embrace only makes an already herculean effort that much more difficult.

              I understand that evangelism isn’t for everybody, and while I wish more people were willing to stand up and defend our principles and educate our neighbors, I won’t excoriate those who’d rather keep to themselves. But those who go out of their way to antagonize everybody that we need to recruit if we’re ever to restore a little bit of liberty and dignity to our lives? You’re really not helping.

      3. That’s what torches are for.

      4. I get stuff like, “so you just want poor people to die”

        1. You should reply: Certainly, if they think they can make a living at it.

  3. Another apologist for the Goon State, intentionally (or stupidly, who really cares which?) conflating minarchism with anarchism.

    1. Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

      We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.
      Bastiat

      Since libertarians don’t want stuff to be done by the government, they don’t want those things to be done at all! And furthermore, since libertarians don’t want the government to do stuff, they don’t want the government to do anything at all! Duh! Libertarians are anarchists! All thinking people know this!

      1. The more i think about this argument, the more i’m afraid it is a strawman. I think the socialists don’t so much believe that we don’t want these things at all if we don’t want government to do them, but more they don’t believe they’d be done well or as well as the government can do them. Hence the idea of public goods.

        1. “Since libertarians don’t want stuff to be done by the government, they don’t want those things to be done at all! And furthermore, since libertarians don’t want the government to do stuff, they don’t want the government to do anything at all!”

          If you exist in a state of mind where you cannot imagine people doing things for themselves, then that IS the natural conclusion, is it not?

        2. “but more they don’t believe they’d be done well or as well as the government can do them. Hence the idea of public goods.”

          That’s precisely the big government argument. I’ve been asked to “prove” before that big government is less efficient than small government. All examples are derided as cherry picking, but of course examples of bad corporate behavior is never considered cherry picking from their point of view.

          When you point out such large scale disasters as Communism, you invariably get the implied (sometime explicitly stated) thought that it would have worked if “they” had just done it right.

          Frankly, anyone that still advocates Socialism, despite the near universal failures of the 20th century of Socialist states, is beyond reason. If you can turn a blind eye to those atrocities and yet still claim that Socialism is Better, you’re capable of ignoring any data that conflicts with your world beliefs.

      2. “We disapprove of state education. Then the socialists say that we are opposed to any education.”

        This literally happened to me.

        1. I forgot the best part. When I brought up private schools replacing public schools, the person said that then nobody except the rich could send their kids to school.

          After a quick lesson in Econ 101 about how there would be enough private schools to fill the demand for them, I did get an “I guess”. So a small victory in the Progtopia of urban Jersey!

    2. Well, RC, it is useful to remember that when one has an unexamined and deeply statist mindset that there is no difference between those two things.

  4. Progressives tend to have a difficult time understanding any arguments that differ from prog orthodoxy. That’s how you end up with someone claiming libertarians don’t care about ‘the community.’

    What libertarians actually believe is that people should be free to choose their communities and communal responsibilities without being forced to be part of a community or group they dislike or disagree with.

    It’s an issue of consent, not of selfishness. I thought progressives were supposed to be strong believers in consent, or does consent only matter when someone’s sticking their penis in something?

    1. Consent only matters when it furthers their agenda, Irish.

      1. ^This. The illusion of consent rather than actual consent.

    2. When you vote then you consent to government force! If you don’t vote, then your inaction is implicit consent! So government force is consent! Do as you are told! You consented!

      1. It’s spelled out very clearly in the social contract. Can’t you read?

      2. If you don’t like it, why don’t you move to SOMALIA!!!!!

        1. Because Somalia is in no way libertarian?

        2. “I’m organizing a charity to transport refugees from Somalia to North Korea. Can I count on your support?”

      3. Well I did apparently consent to the Social Security program when I was about 3 years old, and I am also not allowed any take-backsies.

    3. Consent is a concept that is used to bludgeon others with. There is little in modern Progressive thought that respects consent.

      Proggies want rules for all situations, they want rules that favor their world beliefs and they want the government to enforce those rules on everyone. They believe that the “government” is mystically fairer and more knowledgeable than all other organizations and that anyone who disagrees is stupid and/or evil.

  5. [Libertarians] care more about themselves than about the community.

    Bullshit. We care about our communities, which is why we don’t want fuckheads in Washington D.C. trying to run them.

    1. But if government doesn’t run communities, who will? The KKKorporations? Libertarians, by not wanting to be ruled by government, want to be ruled by the KKKorporations!

      1. Everything is clearly black and white! There is no gray! No compromises!

      2. How does KKKorporation “rule” us ?

        Government has a legitimate role – securing our natural rights.

        It is obligated to protect us from the use of actual force by KKKorporation to “rule” us.

        KKKorporation is left only with attempting to persuade us not rule us.

    2. That’s another good point. Even if you believe in necessary regulation, why must such regulations come from a hyper-bureaucratized organization in Washington, D.C. which is bound to be less responsive to the needs of localities?

      If you believe in community, then decisions ought to be made by the actual community, i.e. by people who live together and know each other. The idea that we’re part of a 300 million person community and all decisions must be made by a national congress is a total absurdity.

      1. Even if you believe in necessary regulation, why must such regulations come from a hyper-bureaucratized organization in Washington, D.C

        Because those people are The Experts in the field in which they are regulating. They, by definition, know more about your problem then you do.

        1. It’s not just because of the Top Men syndrome. It’s also because Proggie’s are afraid that some locality might do something that they don’t like. All Proggie’s are inherently busy bodies who want to be involved in other peoples’ decisions.

        2. and how well have those “experts” done ?

          And how is it we decide who an expert is ?

          Libertarians score significantly higher in variety of tests – such as IQ or economic knoweldge.

          Does that make us the experts you all have to defer to ?

          Absent my actions actually harming others why must I defer to an “expert” ?

          Is there an expert in what color I should paint my house ?

          If the experts say I should drive a Prius, does that mean I can not drive a corvette ?

          If it is my problem – how can you ever be sure someone else knows more about it than me ? Particularly more about what I want to do about it.

      2. Though in the case of Lochner, the question is more about why “caring about the community” means allowing the local government to make any regulations it wants. Are we going full General Will here, where we must accept any law as the proper will of the community?

        And, of course, you can care about the community and think all government meddling harms the community. But it can never be an honest disagreement, it must be about our low moral character.

        1. The most local community is the individual household.

    3. Bullshit. We care about our communities, which is why we don’t want fuckheads in Washington D.C. trying to run them.

      I was listening to CNBC this a.m. while driving the kid to school. Eric Cantor was discussing the minimum wage issue with the hosts. One host brought up recent studies that claimed minimum wage laws don’t damage job growth and that was a reason to allow a federal minimum wage. Cantor argued the accuracy of the studies (fine) but never mentioned the idiocy of a federal law.

      This is why conservatives fail. The appropriate counter point is that a federal law cannot consider the very idiosyncratic economies of states, cities and municipalities, and if local governments want to pass minimum wages they should go ahead and do so, and suffer the benefits or negative consequences that result.

      If we care about our communities – aren’t we better equipped to make decisions for them?

      1. But but but, then all the KKKorporations will move to the places with the lowest minimum wages and it will be a slippery slope race to the bottom. Right? Amiright?

        1. No you are not right.

          Where has he “slippery slope race to the bottom” ever actually occured ?

          Reality is that economic freedom is invariably resulted in prosperity and higher standards of living.

          I love hearing the left rant about the abysmal conditions in factories in bangeledesch.

          When I was a child we put pennies and nickels into milk cartons for the starving millions in bangeledesch.

          Now we must destroy the very system that raised them from starvation – because the working conditions in facotries do not live up to our western ideals.

          And those factories ? Used to be in China, but they are not any longer – why ? Because the chinese are too prosperous and will not work for those low wages.

          And soon enough those same factories will leave bangeledesch for elsewhere.
          When the bangeledeschi standard of living his risen too high for bangeledeschi’s to work for those wages – the factories will move again.

          Wages do not race to the bottom.
          They naturally rise with increasing productivity and value.
          Then jobs that can not afford those wages go where the available skills can not command those wages.

          That is a slow race to the top, not the bottom.

      2. The local government won’t be the people suffering the consequences.

      3. “and if local governments want to pass minimum wages they should go ahead and do so, and suffer the benefits or negative consequences that result.”

        Absolutely. I’m one of those people (nasty heretics) that believes that minimum wage laws when kept to less than the prevailing starting wage are relatively harmless. That being said prevailing starting wages are vastly different across the US and the idea of a National minimum wage being useful and harmless seems outlandish. It’s either low enough that it’s pointless in 90% of the country or it’s high enough to be economically harmful in 10% of the country. [Figures arbitrarily made up, because they make for better propaganda. 😉 ]

    4. Exactly! That’s why I try so hard to take care of my local community. You have far more impact that way.

  6. This sort of trade-off is the foundation of Western social democracy.

    Right, *trade-off* and *foundation*.

    1. Last I checked, glorious European social democracy has resulted in Europe having an economic growth rate of about 1.5% over the last 5 years – about half that of America. And German energy policy has pretty much obliterated their energy grid and caused spiking electricity prices.

      How’s that for a ‘trade off?’

      1. But they have mass transit and “free” health care!

    2. The whole system was rationally designed to maximize communal well-being. It’s not a clusterfuck of conventions, conquests, revolutions, political gamesmanship, etc.

    3. You know who else believed in statism and “Foundation”?

      1. Ima say, AQ (which means base or foundation) offshoot ISIS.

          1. The Mule was a Libertarian. Amirite?

      2. Marx Factor?

  7. If libertarians get their way, there will be no more red tape, but also no more sunsets: just toxins and smog.

    Impressive. I didn’t know it was possible to pack so many logical fallacies into one sentence.

    1. Well, you just lack understanding of this man’s vast talent.

    2. You’ve never read one of Tony’s posts then?

      1. I almost posted that very same comment.

  8. Fair enough: who doesn’t? But then again, sometimes taxes fund important social goods and even red tape can serve a purpose…. This sort of trade-off is the foundation of Western social democracy.

    Didn’t the Tories and English crown deploy this argument against a certain group of dead, white slaveowners? That taxes were the price they paid to continue the glory of Britannia and their rights as Englishmen? How did that work out, I wonder?

    Some regulations are overbearing and some are pointless.

    Then why engage in meaningless ritual? Surely we are modern and enlightened enough to strip our interactions with government of empty formalities.

    The answer is to improve them, not to scrap all regulation.

    How, pray tell, did you bounce from some regulations are bad/pointless to “libertarians want “CHAOS”?

    If libertarians get their way, there will be no more red tape, but also no more sunsets: just toxins and smog.

    Doom. DOOM. DOOM!

    1. You ever notice a lot of these kinds of “DON’T LET THE EEEVUL LIBERTARIANZ IN!!! THEY’RE HARBINGERS OF DOOM!!!!1!!!” type pieces are a lot easier to read and not get pissed off about if you picture the author as a tin-foil hat wearing stragly looking homeless lunatic wearing a “THE END IS NEAR!” sandwhich board and screaming at brick walls?

  9. my buddy’s mother-in-law makes $61 an hour on the internet . She has been out of work for five months but last month her pay check was $19835 just working on the internet for a few hours. linked here………
    ????? http://www.netjob70.com

  10. Ultra-advanced squares like this O’Donnell Fuck who resents not having their infant butts lovingly cleaned, powdered, and diapered everyday by a chosen collective of law-obsessed similars with jello for brains would, of course!!, vomit their warm tit milk when a dapper Libertarian swaggers in from the rugged geovectors of self-interpretation, adult thinking, and hardcore individualism.

    Like most people who haven’t a clue how to help sustain an open and free society O’Donnell just doesn’t understand how to be an adult.

  11. Social Democracy – “Social democracy is a political ideology that officially has as its goal the establishment of democratic socialism through reformist and gradualist methods.”

    Very telling that that fuckstick commie would use that term. O’donell wants us to be a european style pit of folly and despair. Does anyone wonder why alcoholism is so rampant in Social Democracies?

    I say ‘go for it’ Root, rip it to shreds.

  12. [Libertarians] care more about themselves than about the community.

    *pounds head on desk*

    1. See my advice about about picturing fucksticks like this O’Donnell halfwit as raving lunatic prophets of libertarian DOOM. It makes it easier to ignore the dipshits if you just picture them as what they really are.

    2. Because nothing says “I care about the community” more than gifting the community with squadrons of armed enforcers, armed with tens of thousands of pages of rules, and empowered to punish disobedience by any community member with assault, kidnapping, and/or death.

      1. I like my town government. When a new grocery store came in and there was a budget surplus, they lowered our property taxes. When a woman at a town meeting asked for a noise ordinance, the town council informed her that enforcing such an ordinance would require a police force which the town residents do not want. It’s nice having a town government that will not pass ordinances that it can’t enforce, and wants to keep it that way. (Some of our property tax money goes to the state police and sheriff so state law can be enforced, but they don’t give a shit about local ordinances.)

        1. Where is this Valhalla of which you speak?

          1. A small town in Maine.

            1. “A small town in Maine.”

              Those are the type of places that are always over run by vampires, sea monsters and evil aliens in Steven King novels.

              1. “Write what you know.”

  13. Til I looked at the bank draft that said $9222 , I didn’t believe that my father in law woz like they say actualey bringing home money part-time on their laptop. . there best friend has been doing this 4 only about 1 year and just now repayed the morgage on there villa and bourt a brand new audi .
    Check This Out ………….. http://www.jobsfish.com

  14. “If libertarians get their way, there will be no more red tape, but also no more sunsets: just toxins and smog.”

    He forgot the orphan-manned monocle mines.

  15. Some regulations are overbearing and some are pointless. The answer is to improve them, not to scrap all regulation.

    I see a man made of straw.

    Yet O’Donnell appears to have skipped those chapters

    He probably only read the sparknotes.

    in his rush to publish a cartoonish distortion of the libertarian legal movement, inadvertently revealed his own weak grasp of both history and the law.

    A disingenuous journalist is disingenuous.

  16. my best friend’s mother-in-law makes $88 an hour on the laptop . She has been without a job for ten months but last month her check was $12564 just working on the laptop for a few hours. check out here………
    ????? http://www.netjob70.com

  17. I think the description he used to characterize libertarianism is accurate. I have read and reread the following, but can’t find anything stating falsehoods:

    “[Libertarians] care more about themselves than about the community. Libertarians resent paying taxes, and they hate red tape and overreaching government. Fair enough: who doesn’t? But then again, sometimes taxes fund important social goods and even red tape can serve a purpose…. This sort of trade-off is the foundation of Western social democracy. Some regulations are overbearing and some are pointless. The answer is to improve them, not to scrap all regulation. If libertarians get their way, there will be no more red tape, but also no more sunsets: just toxins and smog.”

    Can someone show me please.

    1. “I have read and reread the following, but can’t find anything stating falsehoods:”

      Falsehood: “also no more sunsets: just toxins and smog”

  18. Lucy . you think George `s storry is impossible, on sunday I got a brand new Saab 99 Turbo after having made $8551 this past four weeks and just over ten-k last month . it’s by-far the most comfortable job I have ever had . I started this five months/ago and almost straight away began to bring home over $75… per-hour .
    CHECK FREELY … MAKE FREELY … http://WWW.WORK4HOUR.COM

  19. Yeah, as soon I read the line about scrapping all regulations, I thought of the conversation I just had with my step-dad (a Democrat) Sunday night. I told him “Some regulations are absolutely necessary, but some of them are totally pointless. Those are the ones libertarians want to get rid of.” And pointed out examples like some of the ridiculous anti-gun laws (he does love his guns, despite being a Democrat!). He completely agreed with me. And for the record, I haven’t read this book yet, but I may now. Synchronicity!

  20. EVERYONE cares more about themselves than the community, and anyone pretending otherwise is not to be trusted.

    -jcr

  21. I see a connection with the campaign against Uber worldwide. Uber circumvents the power of regulatory authority and therefore is evil and must be destroyed….or something.

  22. If “Western social democracy” is threatened by liberty, then it deserves to be threatened.

  23. my best friend’s ex-wife makes $84 /hour on the laptop . She has been out of a job for eight months but last month her pay check was $17026 just working on the laptop for a few hours. Go Here…..

    http://www.Jobs-spot.com

  24. my neighbor’s step-aunt makes $80 an hour on the internet . She has been laid off for five months but last month her payment was $12901 just working on the internet for a few hours.
    website here……..
    ???????? http://www.paygazette.com

  25. The real shame about Lochner is that it wasn’t fully applied to all state laws that infringe on liberty to contract. If it had the entire Jim Crow legal regime would have come crumbling down more then a half century prior to the Civil Rights Acts.

  26. I make up to $90 an hour working from my home. My story is that I quit working at Walmart to work online and with a little effort I easily bring in around $40h to $86h Someone was good tome by sharing this link with me, so now i am hoping i could help someone else out there by sharing this link… Try it, you

    won’t regret it!….

    w?w?w.?J?o?b?s?-?S?i?t?e?s??.c?o?m?

  27. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for 74 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least per hour. I work through this link, go to tech tab for work detail
    ————— http://www.paygazette.com

  28. The typical liberal straw man argument. Anyone who believes in a constitutionally limited government really wants no government. What hogwash from O’Donnell

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