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.