Rand Paul

Rand Paul and the Libertarian Case Against Judicial Restraint

Sen. Paul takes sides in a libertarian-conservative battle over SCOTUS and the Constitution.

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When Sen. Rand Paul (R-Ky.) told an audience of conservatives last month that judicial restraint was a failed legal philosophy that harmed liberty and expanded government power, he took sides in a long-running debate between libertarian and conservative legal thinkers. As I explain in my new book, Overruled: The Long War for Control of the U.S. Supreme Court, this debate originated back in the second half of the 19th century when Progressive lawyers and activists began urging the Supreme Court to defer to the popular will and uphold democratically enacted economic regulations. That Progressive approach ultimately triumphed during the New Deal period and has been part of the American legal mainstream ever since.

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In the late 1960s, the influential conservative legal theorist Robert Bork embraced the Progressive approach. In Bork's view, the Progressives were right when they said the Supreme Court had no business overturning their economic agenda. But then Bork took the analysis one step further. The Supreme Court was equally wrong, Bork argued, when it sought to overturn conservative "morals" legislation, such as state laws that banned birth control or prohibited homosexual conduct. "In wide areas of life," Bork declared, "majorities are entitled to rule, if they wish, simply because they are majorities." For Bork, that meant the Supreme Court should defer to the will of those majorities and butt out of such disputes.

In the decades to come, numerous conservatives would rally to Bork's call, thereby forging something of a right-left consensus in favor of a deferential judiciary.

Libertarians favor a different approach. In the words of libertarian legal theorist Stephen Macedo, "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, the libertarians view the Constitution as a liberty document which places strict limits on majoritarian power while protecting a broad range of personal and economic freedoms. Whereas Bork (like the Progressives before him) wanted the Supreme Court to defer to most government action, the libertarians want the Court to actively police the other branches of government.

This debate is very much alive and kicking today. Writing at the Library of Law and Liberty, for example, conservative legal scholar Richard Reinsch recently complained that "the restrained vision of the federal judiciary that has for some time dominated the jurisprudence of right-leaning American legal theorists and lawyers in this country is now under fire." Why is it under fire? Because "many libertarian and classical liberal scholars" have persuasively championed a constitutional vision which asks the federal courts to protect unenumerated rights from government infringement. "Even George Will," Reinsch fretted, "has reversed his own prior position on judicial restraint to now favor 'judicial engagement' to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities."

Reinsch's colleague Greg Weiner, meanwhile, went on the offensive, making his own case for conservative judicial restraint.

"Rights are not inherently judicial claims. We are only accustomed to thinking of them that way," Weiner wrote. "It might be healthier and, crucially, ultimately better for liberty if rights claims were to be politically resolved."

In other words, according to Weiner, if a small business owner believes an arbitrary regulation is violating her right to economic liberty, that person should take her complaint to the ballot box, not to the courtroom. Let the majority decide if her right is worthy of political protection. The judiciary has no business getting involved. (Chief Justice John Roberts made the same fundamental point in his 2012 decision to uphold Obamacare. "It is not our job," Roberts declared, "to save the people from the consequences of their political choices.")

Writing at the Volokh Conspiracy, Georgetown law professor Randy Barnett offered a spirited libertarian rebuttal to Weiner's vision of conservative judicial deference:

[T]ell me a story about how an individual denied the right to braid hair without an expensive and time consuming cosmetology license can get her right vindicated in "the legislative process."…

What does this African American woman do who wants to braid hair for money? How does her right become part of the agenda of the state Republican and Democratic parties and their candidates for the state representatives or senators? How does she make "the rest of us" aware of her liberty being violated so they can vote Republican or Democrat accordingly? How does she get the public to place a greater weight on her lone right to pursue a harmless occupation than they do on the other policies advocated by Republicans or Democrats? When will "deliberate majorities" ever even hear her claim?…

I know of only one way for an individual to assert her claims against administrative government workers and boards and panels. By bringing a lawsuit that is then decided by a genuinely neutral magistrate. Bringing suit is hard. Bringing suit is expensive (unless supported by a public interest attorney). But bringing suit is possible. It is only possible, however, in a legal system that recognizes the existence of a third co-equal branch of government called the "judiciary."

What might this libertarian legal approach look like in practice? Rand Paul gave a good shorthand description last month. "If we believe in judicial restraint," Paul said, "we presume the majority is correct." But "maybe we should start with the presumption of liberty…. Maybe we should be presumed to be free."

For more on the long war over judicial restraint, check out my book.

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  1. The next post needs to be some Reason butt hurt over this morning’s Obama Amnesty decision. The juxtaposition would be perfect.

    1. I don’t think Reason writers would get upset about a presidential mandate being overturned. they might, probably, agree with the ends but disagree with the means.

      1. sounds like a bet to me.

      2. Well, whether the put up a post on it, I couldn’t say.

        But there have been plenty of pro-open-borders articles here that show no sensitivity whatsoever to the means used to obtain this goal.

    2. John,

      Why do you spend so much time on a libertarian website when what you espouse cannot be remotely considered libertarian? There’s a whole political party out there that routinely gets at least 40% of the vote so, rejoice!, you don’t have to slum it with people that can’t get a dog catcher elected.

      1. Why do you spend so much time on a libertarian website when what you espouse cannot be remotely considered libertarian?

        Fucking self-awareness, how does it work?

        1. You mean like when I support the right to have an abortion, to kill yourself, to take drugs, to have a vigorous legal defense and think we should be wary of cops and the military. I know, I know… I’m out of the club because I don’t care if rich people pay high taxes. Boohoohoo.

          1. So liberty for some, just not for all?

            Christ, you are a retard.

          2. There is no individual freedom without economic freedom. It is that simple. there is also no economic freedom without individual freedom.

            One can’t take one and dismiss the other as a “boohoohoo” cindy lou.

            1. Your freedom doesn’t end at your bank account. If you don’t believe in economic freedom you don’t believe in freedom.

              1. “Your freedom doesn’t end at your bank account.”

                It just ends at borders, amirite?

                1. shouldn’t there be a useless hashtag in there?

                2. It just ends at borders, amirite?

                  no, you are wrong. Again. It ends when you begin to impose on the freedom of others. We’ve been through this ad infinitum – open borders and a welfare state cannot co-exist. Since the dismantling of the welfare state is not likely, open borders will not happen.

                  1. What other freedoms are you willing to chuck if they are found to be tied to this inevitable welfare state? If drug use leads to a significant number of people being penniless and qualifying for welfare state benefits is it out the window too?

                    1. What other freedoms are you willing to chuck if they are found to be tied to this inevitable welfare state?

                      there is no freedom to cross the borders at will as it is, so that’s a moot question. But it’s interesting that you are willing to chuck the NAP when it suits your hobby horse.

                    2. How is crossing a border an act of aggression?

                    3. Is that what he was getting at? Good grief.

                    4. “there is no freedom to cross the borders at will as it is, so that’s a moot question. ”

                      And there is no freedom to do drugs as it is. What’s your point?

                      “you are willing to chuck the NAP when it suits your hobby horse.”

                      Where did you get that from?

                    5. “you are willing to chuck the NAP when it suits your hobby horse.”

                      Where did you get that from?

                      from your steadfast support for open borders while conveniently ignoring the costs imposed on others by illegals via the welfare state. The two things cannot coexist.

                3. Well, yes, the freedom guaranteed by the US government is going to end at the US borders, Bo. You might want to refresh your understanding of “sovereignty” and “jurisdiction”.

            2. There is no individual freedom without economic freedom.

              there is also no political freedom without economic freedom. There has never been a politically free nation that did not also have economic freedom. The opposite, meanwhile, has not always been the case and Hong Kong is one example.

            3. “There is no individual freedom without economic freedom. It is that simple. there is also no economic freedom without individual freedom.

              One can’t take one and dismiss the other as a “boohoohoo” cindy lou.”

              So, economic freedom as defined by libertarians means that taxes on rich people should never be raised? If I wasn’t too busy reading my Little Red Book, I would of thought that we had political freedom (and robust economic growth) in the 1950s when marginal tax rates on rich people were 90%.

              1. That no one anywhere was actually paying.

                The effective tax rate wasn’t anywhere near 90%, moron.

                Or lower. Marc Linder, a law professor at the University of Iowa, has shown that a more comprehensive interpretation of income that includes capital gains suggests the real effective tax rate for millionaires was 49 percent in 1953. The effective rate dropped throughout the decade, reaching 31 percent by 1960. That 31 percent is just slightly higher than the 29 percent level a Congressional Budget Office report figures the average effective tax for the top quintile will be in 2014. And that number for 2014 doesn’t include taxes in Obama’s health-care law.

              2. So you immediately switch from cheap attempts at making moral arguments about personal freedoms (only the ones you want of course) to utilitarian arguments based on your ignorance of history? Really sealing that ‘being unprincipled scum’ title. Least Lenin was consistent.

                1. You mean you can’t be class conscious and believe there is too much government? I’m suspicious of government power and aggregations of wealth. That’s unprincipled? I never claimed to be doctrinaire about my personal brand of libertarianism. I just wish right wingers who talk about border security would stop being so sanctimonious about limited government.

                  1. You’re suspicious of government power but want to use it to steal from people you don’t like. That’s about it, huh?

                  2. I’m suspicious of government power and aggregations of wealth.

                    And yet you seek a government that is both incredibly powerful and incredibly wealthy.

                  3. “I’m suspicious of government power, that’s why I want the government to have the power to take wealth from people I don’t like.”

                    Congratulations, you’re arguing a contradiction. It’s almost like your position is based on unprincipled emotional responses. Rights for me but not for thee.

          3. Holy shit, shreik, is that you?

          4. You believe we should be wary of cops, nonetheless, you also believe that only they should be armed, and they should have an unlimited number of laws at their disposal to use as an excuse to rough you up.

            1. “You believe we should be wary of cops,”

              Yes.

              “nonetheless, you also believe that only they should be armed,”

              Not necessarily.

              “and they should have an unlimited number of laws at their disposal to use as an excuse to rough you up.”

              No. Where do you get this shit? I guess I’ll go out on a limb here and say that there should be taxes, and that there should be consequences for not paying your taxes. Apparently, this makes me a bloodthirsty tyrant.

              1. Yeah, Eric Garner knows all about those consequences.

                The Federal Criminal Code is so massive that the government can’t even quantify it. Who knows how big the administrative code is? The tax code is over 80,000 pages. How much of either of those do you support repealing?

                1. Eric Garner was killed because he didn’t pay his taxes?

                  1. Yep:

                    Chief of Department Philip Banks ? the highest-ranking uniformed cop in the city ? sent a sergeant from his office at 1 Police Plaza in July to investigate complaints of untaxed cigarettes being sold in the Tompkinsville neighborhood, a source close to the investigation told The News.

              2. I guess I’ll go out on a limb here and say that there should be taxes, and that there should be consequences for not paying your taxes. Apparently, this makes me a bloodthirsty tyrant.

                Depends on if those taxes are to fund legitimate government functions, like protecting the border, providing courts, and enforcing criminal law, or if you think taxes should be used to punish people for being productive (getting rich by providing goods and services to willing customers).

                I suspect it’s the latter, which indeed makes you a tyrant.

          5. Way to prove my point, half-wit.

          6. Eh. I liked it better when it was Bo saying it…

            1. ??? I’ve never supported raising taxes at all.

          7. So you’re primarily driven by your selfish and envious emotional responses to reality. Openly admitting that fact reveals the truth: You’re out of the club because you’re unprincipled scum.

        2. Yeah because there is nothing Libertariian about my loathing of the drug war, belief in an armed populace and a deregulated economy.

          Why do you post on any site considering that you openly embrace an evil murderous ideology?

          1. “Murderous ideology”

            I hate to break it to you, john, but I didn’t see any gulags in Denmark– nor for that matter did I see any homelessness since the government guarantees a minimum standard of living. I wasn’t there long enough so maybe Copenhagen was just a Potemkin Village. They sure sproused that place up, I’ll tell you.

            Does a deregulated economy mean I can hire anyone I want without seeing their identification papers? Let me know what glenn beck thinks, would you? Thanks, man.

            1. You don’t know anybody who voted for Nixon, either, right?

              Yes, Even Denmark Has A Homelessness Problem

            2. How are things in Venezuela?

              1. So, in order to score a point for their economic agenda libertarians have to resort to a comparison between a third world country and the United States. Can I go back to asking libertarians how it’s going in Somalia, now?

                1. A third world country which became significantly worse after embracing socialism, yes. Or please tell us how it’s not real socialism.

            3. “but I didn’t see any gulags in Denmark”

              This is like saying “I know some people who smoke who lived a long time, so smoking is good for you!”

  2. Judicial restraint basically says the government has unlimited and unenumerated powers, while the people only have the rights that the government says they have. Liberty and justice for none.

    1. Not to beat a dead horse, but this is the only world I’ve ever known.

      1. In practice there of course has never been strict enumerated powers and unenumerated rights because government’s got the FYTW power, but it at least existed in spirit for a little while.

  3. Hi Damon,

    Maybe we should promote more people like this to the bench?

    http://en.m.wikipedia.org/wiki…..#Decisions

  4. The entire reason we are a Republic and not a Democracy is that people have inalienable rights that may NOT be voted away by the tyrannical majority. Should the Legislature ignore that feature, it is not only within the power of the Judiciary to rein in the offending branch, but it’s duty.

    Judicial Restraint is an abomination.

    1. Republic vs. democracy is a bogus distinction, either etymologically (res publica, the people’s thing; democracy, rule by the district, i.e. the people of the district) or in practice. It all comes down to rule by the ruled. And as soon as you have that, you have no inalienable rights, because the supreme law is always within the command of the ruled. If there’s any rule that cannot be altered by those ruled, it can’t be a republic or a democracy.

      1. Let’s put it this way.

        In reality, no one has the power to vote away your rights. They are inalienable.

        Government is a model to that end.

        In a Democracy, a simple majority may vote away your rights. In a Republic, such as ours, it requires 2/3 of the elected representatives and then 3/4 of the states to do so. The Republic more closely models the intent, than does the Democracy.

        If you have a model that protects the rights of the individual better…serve it up.

        1. It’s important to note the constitutional differences that create this scenario as well.

          In a republic like the United States, they rather specifically discuss rights as a natural concept free of government that should not be infringed upon…i.e. the state is an aggressor against the people if they undermine their natural rights. Compare that to, say, the Canadian Charter of Rights and Freedoms:

          “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

          Rights are something to be given and taken away by the government in a democracy. ‘Democracy’ itself supersedes any concept of rights.

        2. If nobody had the power, it wouldn’t be a subject of discussion, would it?

          You’re using the terms republic & democracy (capitalizing them for some reason) in a peculiar way not borne out by their general definitions. Look them up in some dictionaries.

          1. http://en.wiktionary.org/wiki/republic
            http://en.wiktionary.org/wiki/democracy

            Not a dime’s worth of dif between the words. If you want to refer to forms of gov’t to distinguish them, you’re going to have to do better than this.

            1. United States

              Main article: Republicanism in the United States

              A distinct set of definitions for the word republic evolved in the United States. In common parlance, a republic is a state that does not practice direct democracy but rather has a government indirectly controlled by the people. This understanding of the term was originally developed by James Madison, and notably employed in Federalist Paper No. 10. This meaning was widely adopted early in the history of the United States, including in Noah Webster’s dictionary of 1828. It was a novel meaning to the term; representative democracy was not an idea mentioned by Machiavelli and did not exist in the classical republics.[45] Also, there is evidence that contemporaries of Madison considered the meaning of the word to reflect the definition found elsewhere, as is the case with a quotation of Benjamin Franklin taken from the notes of James McHenry. Where the question is put forth, “a Republic or a Monarchy?”[46]

              1. So? The “United States” passage you bolded distinguishes “republic” from “direct democracy”. It could just as easily distinguished direct republic from indirect republic, or direct democracy from indirect democracy. The distinction is direct vs. indirect (or representative), not republic vs. democracy.

                1. Same with your “Republic” quote.

                  1. You gonna make me define every word before I use it? What about the words I use to define the words? You must be a lawyer.

                    The premise of a republic is that you don’t get to vote away right with a simple majority.

                    A democracy is two wolves and a lamb voting on what’s for dinner.

                    1. Not every word. It’s just that this pair of words has been picked over very pretentiously for the past 50 yrs. or so by people who are in some cases equivocating, in other cases snobs. Republic vs. democracy tells you nothing unless the person you’re talking to is already so well versed in this code talk that the convers’n is superfluous. People who actually discuss gov’t objectively with the object being to analyze & inform use them synonymously. If you want to specify criteria such as direct/indirect, limited/unlimited, constitutional/traditional, etc., do so by those words, because they’re not jargon, they can be looked up, rather than being used as points for equivocation or group signaling.

                    2. Republic vs. democracy tells you nothing unless the person you’re talking to is already so well versed in this code talk that the convers’n is superfluous.

                      Like here at H&R?

                      I’m willing to bet, the vast majority of the commenters here understood my meaning.

                      But, fair nuff.

            2. Republic

              Main article: Republicanism

              The term republic has many different meanings, but today often refers to a representative democracy with an elected head of state, such as a president, serving for a limited term, in contrast to states with a hereditary monarch as a head of state, even if these states also are representative democracies with an elected or appointed head of government such as a prime minister.[91]

              The Founding Fathers of the United States rarely praised and often criticised democracy, which in their time tended to specifically mean direct democracy, often without the protection of a Constitution enshrining basic rights; James Madison argued, especially in The Federalist No. 10, that what distinguished a democracy from a republic was that the former became weaker as it got larger and suffered more violently from the effects of faction, whereas a republic could get stronger as it got larger and combats faction by its very structure.

              What was critical to American values, John Adams insisted,[92] was that the government be “bound by fixed laws, which the people have a voice in making, and a right to defend.” As Benjamin Franklin was exiting after writing the U.S. constitution, a woman asked him “Well, Doctor, what have we got?a republic or a monarchy?”. He replied “A republic?if you can keep it.”[93]

  5. “In wide areas of life,” Bork declared, “majorities are entitled to rule, if they wish, simply because they are majorities.”

    If you wanted a check on the other branches, you should have written it into the Constitution somewhere.

    1. But majorities wrote those too.

  6. “Even George Will,” Reinsch fretted, “has reversed his own prior position on judicial restraint to now favor ‘judicial engagement’ to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities.”

    Opposing party super majorities will do that to you.

  7. But “maybe we should start with the presumption of liberty…. Maybe we should be presumed to be free.”

    Not free to use certain substances, mind you, but generally free.

    1. Free to ask permission and take orders.

  8. I realize I’m being naive, but the sole consideration in any review of a law should be “Does it comply with Constitutional limits on the power of the government?”

    As for the number and political importance of those who might be inconvenienced, tough shit.

    1. In the next Constitution, there should be a requirement for the SCOTUS to do a judicial review on EVERY piece of legislation BEFORE it can become law..

      1. What difference if the rubber stamp comes before or after the fact?

      2. No, the next Constitution should, at the very least, allow states to challenge federal laws, and preferably allow anybody to do so.

        Ambition against ambition is a fine theory. To make it a fine practice, it needs to be extended outside government.

        1. I actually propose both. Many laws are clearly unconstitutional, but have simply not been challenged. So, IOW, I gotta follow a bullshit law until someone spends a not so small fortune in legal fees getting it thrown out.

          I put it to you that over half the laws on the books would never have made it there if they were forced to undergo judicial review beforehand.

          An additional option, outside of federal jurisdiction, is also highly desirable. How would you do it?

          1. First, allow states to challenge bills; legislatures should be able to appoint a hired prosecutor and not have to rely on the state attorney general, who might have different political ambitions.

            Second, there has to be some way for ordinary citizens to challenge laws, but just opening it up to everybody would invite a flood of duplicate lawsuits, and as much as I relish the idea of a paralyzed government, that’s not going to win any favors. So do it by petitions, like initiatives: if anyone can get 1% of a state’s voters to agree, the petition owner gets to sue over the constitutionality of federal laws.

            Where would state laws fit into this? Extend it down to the state/county analogy.

            As for counties, well, I dunno.

          2. Something else I have considered is to cancel all government benefits for every legislator who voted for any law subsequently found unconstitutional, retroactive to the day they voted for the bill. This drops their pension, Secret Service protection (if they went on to that kind of job), Medicare, Social Security, all contracts, all government employment of any kind.

            Shun the treasonous bastards. I want unconstitutional laws to hurt the perpetrators and the punishment to provide salutary lessons pour encourager les autres.

            1. some way for ordinary citizens to challenge laws

              Interesting. I like the concept, but need to think more about how one would go about implementing it.

              And yes, actual punishments for not adhering to the Constitutions are a must.

              1. In my fictional world, victims prosecute, losers pay, and no new lawsuit can be filed where restitution is less than what is owed in other verdicts. If I lose a court case and refuse to pay the $10,000 verdict, I can’t even file for less than $10,000, let alone collect. It would mean, for instance, that an employer could stop paying me and I would have no recourse.

                So in that world, anyone could sue for unconstitutionality, and if they lost, they’d owe all court costs; if they refused to pay, not only would they face a much higher bar trying to file again, they’d probably be victimized by every punk in the area, stealing their hubcaps etc. (They are perfectly free to defend their hubcaps, but the need for sleep and work makes it more difficult.) It’s a proportional outlaw status. Of course they could pay the verdict, and unless they were Daddy Bloomberg, that alone would probably chastise them enough to prevent many more frivolous lawsuits.

                1. This is good stuff.

                  I’ve been tinkering with what a libertarian Constitution would look like. I’m fascinated with the concept of what could be done better to mitigate the issues that the Founders didn’t foresee.

                  1. I have other ideas 🙂

                    Legislators vote the number of popular votes they received, thus eliminating the excuse for a government census. Also let owners shift parcels on the border of a voting district shift to a neighboring district if it had fewer votes; this tends to equalize district size, further lessening the need for the census.

                    Elections are for contracts, not candidates directly, so voters can sue for breach of contract. Of course contracts would end up full of nothing, but it would at least put them on record as promising nothing. Also select the three highest winners from each district to eliminate the need for primaries and to antagonize two party system advocates.

                    Change the ways bills are proposed and passed: Each legislator posts his own bills, and if a majority of proxied popular votes approve by the end of a static 30 day review period, it is approved. The author can revise his bill at any time, which restarts the 30 day review period. Each chamber must similarly approve the same bill. A bill is approved early if it garners 90% of popular proxied votes.

                    Any law can be repealed instantly if 50% of popular votes in any chamber sign a repeal petition.

                    All laws must be renewed yearly.

                    Any law found unconstitutional is immediately voided in its entirety, including all pending cases and convictions. This is partly because it’s the right thing to do, but also because it discourages lumping a zillion laws together for easier renewal.

                    1. And I think it would be fun to have a volunteer legislative chamber. When you vote, tick a box to volunteer, and one volunteer is chosen from each district. Volunteer legislators vote the number of people who volunteered in their district, encouraging voting. I personally vote primarily to add weight to letters to legislators, but think it is a practical wasted effort. However, for those statists who tout voting as a civic duty, this would force them to put up or shut up. The extra bills they would propose would probably be mostly nonsense and unpopular. But they would be an extra chamber needed for approval, and an extra chamber ready to repeal existing laws.

                      The volunteer chamber would also provide a way to get complete rookies into politics instead of the standard kiss-ass statist-fuck sort which are inevitable today.

                    2. I’ve addressed a number of these issues, however implemented the solutions differently. I’ll keep them and consider if your implementation is better.

                      This is partly because it’s the right thing to do, but also because it discourages lumping a zillion laws together for easier renewal.

                      I limited them to a length.

                      2. ALL laws will sunset after a period of 10 years. Expired laws can be re-passed via the legislative process described in Article II G.1.

                      3. Laws must be passed on their own merit and Congress may NOT vote to reinstitute them in groups.

                      4. No law may be more than 11628 characters in length (Approximately two pages, 8 x10, Times New Roman, 12 font, single spaced)

                    3. I thought about length limits and something similar to your ban on group renewal, but decided that’s the kind of definition that makes lawyers happy they charge by the hour.

                      My primary protection against wordy and hard-to-comprehend laws is that anyone can bring suit for defective, such as internally inconsistent, inconsistently enforced, vague, unclear, etc — and they have to be judged by a jury. If a jury can’t even agree on whether a law is clear, it is defective, and there are no appeals — laws must be clear in order to be obeyed and enforced, and if any jury can’t agree it is clear, then it doesn’t matter what other juries say.

                    4. I thought about length limits and something similar to your ban on group renewal, but decided that’s the kind of definition that makes lawyers happy they charge by the hour.

                      Ah, but I go on:

                      5. All laws will be written in the common language of the day so as to be understood by the common man without the assistance of a lawyer.
                      a. There are to be no special legal definitions and all words not specifically defined in this document will be defined as in X dictionary dated Y?

                      I figure the people to whom the laws apply, should be able to understand them without the need for a $300/hr lawyer.

                    5. I see a difference here. I assume that the more definitions used, such as character counts or a specific dictionary, the more it opens things up to quibbly abuse by lawyers and politicians. So I leave everything to juries, that if they don’t understand a law, it is defective. It doesn’t matter what the government lawyers say; in fact, that would work against it. If I were on a defective law jury and a lawyer started lecturing us on what some legal definition meant, I’d figure that was prima facie evidence of how unclear the law was.

                      I reverse the current paradigm that shields juries from questionable evidence during a trial (“Objection!” “Sustained. The jury will disregard that remark.”) yet they are gods during deliberation. My juries are in control of the trial, hear all the evidence, can ask any questions they want, but their verdict must mention all evidence, what they thought of it, and, crucially, the chain of logic that goes from evidence to conviction. I expect most appeals would be for this faulty chain of logic and how it certifies certain evidence as credible, such as the Mississippi bite mark coroner. It would probably get by juries and defense lawyers for a while, but sooner or later some defense lawyer will ask for the proof that bite marks can be compared, athe chain of logic will fail.

      3. Some countries have constitutional courts for that purpose.

    2. I don’t really like to speak of Constitutional limits, because that could be interpreted as “Government can do anything as long as the Constitution says it can’t.” That basically nullifies the idea of enumerated powers, while only limiting the government to that which is explicitly forbidden by the Bill of Rights.

      Rather I think it should be “Put your finger on the part of the Constitution that gives the government the power to make this law.”

    3. Not the sole consider’n, because there may be other things it conflicts with too. It may be self-contradictory or too vague to understand. If it’s a regul’n, it may not be in accord with the statute it purports to effect. It may be out of compliance with something in the relevant constitution besides limits on the power of gov’t. It may conflict with something in a superior gov’t (such as state vs. federal) that overrules it.

  9. majorities are entitled to rule, if they wish, simply because they are majorities

    The Great Conservative Hope. It’s a fucking tragedy we didn’t get three or four decades of this sort of genius on the court.

    1. Don’t worry… We’ve still got Thomas and Scalia.

      1. Bork had much more in common with Ginsburg than with either of those two. Utilitarianism and all.

        1. I don’t see much in common between Thomas and Bork, but Scalia and Bork, yeah, a lot.

          1. If Scalia wakes up on the right side of the bed, he will uphold the Constitution. It seems like he’s been waking up on the wrong side a lot lately, though.

  10. Again, I say discuss this in terms of how anyone, judges, legislators, or avarage Joe and Jane Six-Pack, should interpret the Constitution (federal and state).

    Leaving the courts a monopoly on constitutional interpretation encourages the phenomenon where Congress passes a bill and shrugs, saying “if it’s unconstitutional, the courts will inform us.” The very courts whose judges were approved by the Senate!

    So if the Supreme Court upholds a law 5-4, that doesn’t let Congress off the hook or allow them to pass similar laws in future.

    And the President is obliged to decide for himself whether bills presented for his signature are constitutional, not just whether a panel of judges would *think* they’re constitutional.

    And voters should hold representatives accountable for voting against the Constitution, not just hope some judge will spare them the trouble.

    1. Oh, and don’t forget the President’s pardon power. Jefferson pardoned the victims of the Sedition Act, though the judges thought the law was fine and dandy.

      1. Oh, and Thomas Woods would add, “don’t forget the role of the states in opposing unconstitutional laws!”

    2. Time to drag out one of my favorite hobby horses again: appeals court rulings should be unanimous, or they throw out the law as too damned vague. If highly educated judges can’t agree on what a law means, how can ordinary slobs have any hope of complying?

      As for criminal cases, some spirit: if appeals courts can’t unanimously uphold a conviction, it is overturned.

      1. Agreed.

      2. Ignorance of the law is no excuse for non-compliance.

        Unless you’re a lawyer or a judge. Then ignorance of the law is fine and dandy.

      3. I’ve thought that for a long time too. It’s bad enough that you need a lawyer. If you need to get a big sample of lawyers, you’re really fucked.

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  12. I don’t really like to speak of Constitutional limits

    I see your point, and I think it’s mostly a semantic difference. I prefer to think of the Constitution as imposing limits (I know…) on the government, as opposed to the Tonytarian view that it “creates and grants rights” to citizens.

    1. Again I must disagree.

      A Constitution that imposes limits on government power assumes unlimited power, and then tacks on limitations. Those limitations likely being based upon rights authorized to the people by the government/Constitution.

      Whereas a Constitution that authorizes government power assumes no power unless it is authorized. The unenumerated rights of the people are then only violated when explicitly authorized by the Constitution.

      It’s more than a semantic difference. One assumes unlimited power and authorized rights, while the other assumes authorized powers and unenumerated rights.

    2. You’re missing the point. Tony says the Constitution grants rights to people, you say it limits governments. Sarcasmic (and I and many others, if not most libertarians) say the Constitution grants only specific limited powers to governments. There’s a huge vital difference, which goes right to the core of why courts have moved away from the 9th and 10th amendments which espoused this.

  13. The argument for restraint is that in a democracy the consent of the governed is the legitimate source of governmental power and so, to the greatest extent possible, unelected judicial officials should not trump that.

    But when a judge strikes down a law as unconstitutional they are in fact following the orders of the majority. They are following what a Super-Majority of the people wanted in the form of Constitutional Amendments and provisions.

    1. Hey, somebody else who noticed that.

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  15. I suspect the “next” Constitution will be based on the premise,
    In order to form a more perfect citizen…

  16. But when a judge strikes down a law as unconstitutional they are in fact following the orders of the majority.

    That may be the case in practicality. But it isn’t the intent.

    No percentage of voters gets to vote away my inalienable rights. SO, when a judge strikes down an unconstitutional law, it’s because the government was granted no power to make such a law in the first place.

    1. I think Botard is saying that because it takes a super-majority to pass a constitution and to amend it, that when a judge rules something as unconstitutional, they are following the will of the super-majority who wrote and amended the constitution.
      Then if the majority still wants that law, then they need to put together a super-majority to amend the constitution in such a way as to allow it.

      1. Yes, that’s about it. The argument for judicial restraint I noted seems to me to break down because striking down a merely majoritarian law when it breaks a provision agreed upon via a super-majoritarian process is not trumping the will of the people, it’s the opposite.

      2. As I said, sarc, that is how it works practically speaking. But the intent is that no one may vote away your rights. Not 51%, not 67%, not 75%, not 100%. Which is the intent of enumerated powers. Some things, government may not do. EVER.

        If they try, you are justified in throwing off said tyranny.

        1. And who made those rights? You?

          1. Right’s don’t need to be made. They simply are. They are bounded only by the rights of others.

            1. No such thing, then. Humanity didn’t come into existence after rights. People had to make them.

              1. No, people had only to claim them.

              2. We all have the right to do any damn thing we please so long as we don’t interfere with the life, liberty, or property of others through force or fraud.

                That’s the essence of natural rights. That’s not a list that can be enumerated. It’s pretty much limited only by our imaginations.

                While the restrictions on these unenumeratable rights are clearly listable.

                1. So then “natural” is your code word for this right or set of them. Why do you use the word “natural” for it, what justifies your use of the word, and what makes you think they exist anywhere but in your head (where they do you no good)?

                  1. Natural as the day is long. Where would you set the limits? Got a better solution? Let’s hear it.

                    There is no reason to restrict liberty where the rights of others are not violated. It doesn’t get any more basic than that.

                    If liberty for all is the goal, there can be no other limits.

                  2. The word “natural” is used because those rights exist even if they are not recognized. The fact that you do not recognize them doesn’t negate their existence. I have a natural right to defend my family. Heck, that’s as much a duty as a right. And it doesn’t matter what you or the government says. The right exists, even if I am sent to prison for exercising it.

                    I understand the pragmatic argument. I just reject it since I have no respect for pragmatists.

                2. The two tenets for maximization of liberty:

                  1. A person may do as they choose, PROVIDED in doing so they do not infringe upon the rights of others.

                  2. The ONLY legitimate function of government is to protect the rights of the individual.

                  PS sarc, fraud is force. 😉

                  1. But in what sense are those law? If they are law, why is this even a worthy subject of discussion? If they aren’t law, how does your assertion settle anything?

                    1. Law and legislation are not the same thing.

                      There are many laws that society follows that are not legislated (first come first serve in a parking lot for example), and much legislation that is routinely ignored (speed limits on the highway for example).

                    2. More philosophy than law. Law should be based upon philosophy.

                      Philosophy should be adopted based upon desired outcome. My desired outcome is to be as free as possible. What’s yours?

                      1. State your desired end state
                      2. Develop a philosophy that achieves that end
                      3. Make law that adheres to the philosophy

                      = utopia

                      Granted, there are problems if people have a different desired end states. But this one “liberty” allows people to live as they desire, so long as they don’t bother anyone else in the process.

                  2. Fraud is deception, not force.

                    1. Fraud is deception, not force.

                      Nope.

                      Fraud is the taking of my property without consent (not adhering to the agreed upon terms). IOW…theft. Taking my shit, against my will is force.

                      I argued this the other night but you left. You might have a point that it’s not violence (arguably), but it is certainly force.

                    2. Taking my shit, against my will is force.

                      But it wasn’t against your will at the time. You agreed to the terms and willingly participated in the transaction. No force was involved. It was later that you discovered that you were deceived by a fraudster.

                      Kind of like the distinction between self defense and vigilante justice. Both involve a crime being committed against someone, and that someone shooting the criminal. The difference is that self defense happens while the criminal act is being committed, while vigilante justice involves hunting down the criminal after the fact. Same acts, different time frame.

                    3. But it wasn’t against your will at the time. You agreed to the terms and willingly participated in the transaction. No force was involved. It was later that you discovered that you were deceived by a fraudster.

                      I wasn’t deceived if they abide by the terms of the contract.

                      The deception is the theft and thereby the force. Doesn’t matter when it happens, I’m still not getting what is mine by right.

                    4. How is it force? You weren’t coerced. You did it willingly. You were deceived into entering into the transaction, not forced. Tricking someone isn’t force, it’s deception. Equating fraud/deception with force is like saying magicians force their audiences into believing their tricks.

                    5. The deception is the force.

                      Tricking someone isn’t force

                      It is if it was done to obtain the property of another without their consent. Absolutely, positively force.

                      When I go to see a magician, I get what I contracted for. If I pay and he skips out before adhering to the terms of the contract, he has stolen my property (money). Theft is force. Fraud is theft. Fraud is force.

                    6. It is if it was done to obtain the property of another without their consent.

                      But at the time there was consent.

                      I guess we can agree to disagree. I just fail to see how fraud can be considered force if everything is voluntary and there is no coercion or violence.
                      The way I see it, that’s why the word “fraud” exists: To draw a distinction between theft by force and theft by deception.

                    7. It’s no longer voluntary when they don’t live up to the terms of the agreement.

                    8. I’m not saying it isn’t theft. I’m saying that not all theft is force. If you willingly hand something over, even if you are deceived into doing it, you’re not being forced. You could argue that once you’ve learned of the deception that force is being used to keep you from your property, but even that isn’t entirely true because at this point the only way to get your property back is with force. Legitimate government force. But the fraud itself was not force.

                    9. I’m fighting with K-Mart (a company with which I will never do business again) over a bogus charge to my checking account. When I tried to purchase the item online this weekend, the website said there was a problem with the debit transaction. When I checked my checking account I found the money had been withdrawn anyway. But I had no order number, so the idiots I called at their customer service center said they couldn’t do a thing. So now I’m working with my bank to send the right paperwork and get my money back.
                      Was that force on the part of K-Mart? I willingly entered into the transaction and willingly gave them my debit information. Then they took my money, again with my permission, but didn’t hold up their end. That’s fraud, not force.

                    10. It sounds like a mistake on Kmart’s part.

                      BUT…if you contracted with them, they took your money and didn’t provide you with that which was contracted for, yes, they have taken your property by force, as they never provided the agreed to remuneration.

                      Your participation in a transaction is predicated upon them providing a good or service. You wouldn’t have agreed otherwise. When they don’t live up to their end, it is theft, as sure as if they’d broken into your house and taken the money from your wallet. Theft is always force.

                      Deception, however, is not always force, as the purpose of the deception may not be to acquire your property, as is the case you point out with the magician.

                    11. Theft is always force.

                      That’s where we disagree.

                      Yes, the end result is the same. You have been deprived of your property. But the method determines if it was force or fraud.

                3. All this arguing about where rights come from is arguing to false analogy. Rights are a metaphor; they come from Scotland. Since British law was so good at dealing with property issues, Scottish philosophers took a backwards route to defining tyranny by creating the idea of rights: a virtual piece of property that is supposedly taken away from someone when government engages in an act of tyranny. While that made tyranny into something the courts could comprehend, metaphors are an imprecise tool of communication. We would be better off if we just defined tyranny directly. You don’t own a “right to freedom of speech and of the press”; when a government forbids or restricts communication, that government has committed an act of tyranny. You don’t own a “right to keep and bear arms”; when a government attempts to disarm the populace, that government has committed an act of tyranny; etc. Unfortunately, we have centuries of tradition of doing things backwards to contend with. It derails the conversation, and it’s irritating.

                  1. Unfortunately, we have centuries of tradition of doing things backwards to contend with. It derails the conversation, and it’s irritating.

                    You will be sooner laughed out of court for calling a “mundane” government action tyrannical than for stating you have a right to do the thing which the government has stopped you from doing.

                    It may be a fluke of our own history, but the notion of the “common good” has so thoroughly overtaken jurisprudence that the only appeal left to you is to your rights. Even then, it is hit or miss.

                    Furthermore, as pertains to the individual, the only objective at court should be to win the case. People who hang their hats on espousing a philosophy of government in a court of law do not, as a general rule, win their cases.

    2. I agree with you on this one. The Declaration makes two points. Yes, it says “governments deriv[e] their just powers from the consent of the governed”, but it also says “whenever any Form of Government becomes destructive of THESE ENDS, it is the Right of the People to alter or to abolish it, and to institute new Government”, and it describes the ends as “Certain inalienable rights.”

      So, yes, democracy is the only legitimate form of government, but “”whenever ANY Form of Government becomes destructive of” “Certain inalienable rights” then that government has forfeited its right to govern us.

      1. But then you have to revolt against it. You can’t get it to be its own destruction.

    3. If there are inalienable rights, that means there’s some external force, god, emperor, or something ruling over the people. You have that in the constitutions of some countries; Holland is an example of a country that has provisions in its constitution that are supposedly unamendable. (You wouldn’t like most of them.) But what is it that says that? If it’s the same constitution, there’s a contradiction there, because where did that come from, Spain?

      1. If there are inalienable rights, that means there’s some external force, god, emperor, or something ruling over the people.

        That’s a false premise.

      2. In Great Britain for example, if you defend yourself from a home invasion then you could spend more time in prison than the guy who is robbing you.

        Does that mean that those citizens do not have a right to defend their property, or that their government is violating their natural right to defend their property?

        I’m sure you will say the former, while I say the latter.

        1. Depends what you mean by “right” then. If “right” just means somebody’s, anybody’s, opinion, then gov’t could be violating their right. If “right” means legality, then they don’t have that right.

          Don’t clutter things with the useless word “natural”. “Natural” has no good meaning in most contexts, and just serves as a target of equivocation.

          1. The word “natural” in terms of rights has a very specific meaning, especially in this context. I believe Thomas Jefferson would agree with me.

            1. So say what that meaning is, and I won’t care who agrees with you.

  17. you say it limits governments. Sarcasmic (and I and many others, if not most libertarians) say the Constitution grants only specific limited powers to governments.

    This is not different than what I believe.

    The end.

  18. The argument is predicated on the progressive bastardization of what judicial restraint means. Rather than referring to how the judiciary arrives at a decision, we are now told to accept that restraint means the court agreeing wiyh the governments position. So Roberts actively ignoring the legislative history of the Obamacare individual mandate to justify it as a tax is now an act of restraint. Activism, is ignoring the text of the law, be it statute or constitutonal clause in order to get to a desired result by the judge, not merely disagreeing with the governments opinion. It would not be an issue if it was not for the fact that this redefiniton renders any past discussion of the subject incomprehensibly muddled.

    1. Yeah, that seems to be what this code talk means, i.e. that siding with the particular lawyer of the moment that the gov’t sends. (It can’t exactly be siding with “the gov’t”, because that would be too amorphous an entity, including all the prior acts of gov’t.)

      1. I mean siding with government’s representative in the case, or the executive’s position.

  19. Seems like a silly distinction to me. All the levels of interpret’n, constitutional, statutory, & regulatory, are enactments of some kind or other. Seems like some just want to treat some of those classes of enactments broadly & others narrowly. It’s just words on paper, written by people. No reason to think the people who wrote one of those classes of document meant it any more than those who wrote documents in the other classes. It’s all somebody’s will.

    When a court takes a case, there’s no further restraint possible. They’re going to rule one way or another. How’s 1 way any more restrained than the other?

    1. So no one ever told you that the Constitution is the supreme law of the land? You do know what that means, don’t you?

      1. It doesn’t mean that anything that doesn’t violate it is valid! What about a law that reads, “VNQPREGUGHPAVUHB”? Nothing in the US Constitution against it. But does that make it valid?

        1. If there is nothing in the Constitution that specifically grants the government the power to create such a law, then no it is not valid. At least that’s the clear implication of the 9A and 10A.

          1. The preamble to “VNQPREGUGHPAVUHB” cites that specific power. Say, “Pursuant to Congress’s power to emit bills of credit, VNQPREGUGHPAVUHB.”

        2. “Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

          — Thomas Jefferson

          1. So how’s it “restraint” to ignore that?

            1. I didn’t choose the word.

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  21. “It is not our job,” Roberts declared, “to save the people from the consequences of their political choices.”

    Of course, it is supposed to be your job to save people from the consequences of others’ political choices. If rights are subject to majority vote, they aren’t rights in any meaningful sense of the term.

  22. A lot of these problems didn’t start with the Progtards, though they did a great deal to aggravate them. They started with that Federalist scumbag John Marshall who couldn’t wait to expand the powers of the federal government and the judiciary and laid the groundwork for the catchall monstrosity that we know as Commerce Clause jurisprudence today. Rothbard actually puts it best:

    But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted “checks and balances” and “separation of powers” in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.

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