Libertarian History/Philosophy

National Review Urges Conservatives to Reject 'Libertarian Constitutionalism'

The fight over judicial deference divides libertarians and conservatives.

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Writing in the March 9 issue of National Review, conservative writer Carson Holloway examines my new book Overruled: The Long War for Control of the U.S. Supreme Court. His focus is on the book's treatment of competing libertarian and conservative approaches to constitutional law. "Conservatives are defenders of judicial restraint or judicial deference," Holloway writes, which means they "admonish the courts to show deference to the will of the majority" and uphold most democratically enacted statutes. "Libertarian constitutionalism," on the other hand, seeks vigorous judicial action "in defense of individual rights."

Holloway kindly describes my book as "an informative and readable description, history, and defense of this libertarian constitutionalism." Nevertheless, he urges National Review's conservative readership to "decline…to buy what the libertarian legal movement is selling." Why? Because "the libertarian constitution is not the American Constitution, and the allegiance of American conservatives must be to the latter and not the former."

As support for this assertion, Holloway invokes the founding fathers, who, in his telling, consistently embraced the philosophy of judicial deference. "John Marshall—the most consequential chief justice in the nation's history—was a proponent of judicial restraint," Holloway says.

Perhaps. Yet Marshall was also the author of the Supreme Court's landmark 1803 opinion in Marbury v. Madison, which, to say the least, endorsed a rather robust vision of judicial power. Indeed, the idea of Marshall serving as the poster boy for judicial minimalism would have come as quite the shock to Thomas Jefferson, who was no fan of Marshall's penchant for wielding judicial authority. Marshall's "twistifications in the case of Marbury," Jefferson wrote in 1810, "shew how dexterously he can reconcile law to his personal biasses." Thirteen years later, in a letter to William Johnson, Jefferson was still complaining about Marshall's alleged judicial activism. "This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law," Jefferson fumed.

Meanwhile, James Madison, one of the primary architects of the original U.S. Constitution, argued in a 1789 speech to Congress that amending the Constitution to include a Bill of Rights would prompt the judiciary to serve as "the guardians of those rights." In fact, Madison wrote, the judiciary "will be an impenetrable bulwark against every assumption of power in the legislative or executive." Not exactly a roaring defense of judicial deference.

Credit: Library of Congress

In reality, today's advocates of conservative judicial deference owe less to the 18th century founders and more to the turn-of-the-20th century Progressives, particularly to Progressive hero and thought leader Justice Oliver Wendell Holmes Jr. "A law should be called good," Holmes wrote, "if it reflects the will of the dominant forces of the community, even if it will take us to hell."

Conservative hero Robert Bork expressed that same idea (albeit in less colorful terms) in his 1991 book The Tempting of America. "In wide areas of life," Bork wrote, "majorities are entitled to rule, if they wish, simply because they are majorities."

What's more, this Holmes-Bork/Progressive-conservative connection has never been a secret. When President Ronald Reagan nominated Bork to the Supreme Court in 1987, for example, Bork was explicitly advertised as a Holmes devotee. "I would ask the committee and the American people to take the time to understand Judge Bork's approach to the Constitution," Sen. Bob Dole (R-Kan.) told the Senate Judiciary Committee during the Bork hearings. "That approach is based on 'judicial restraint'… Now, Judge Bork did not invent this concept," Dole explained. "It has been around for a long time. One of the most eloquent advocates was Oliver Wendell Holmes."

According to National Review, "conservatives must decide whether to buy what the libertarian legal movement is selling." I agree. But at the same time, conservatives must also decide whether to buy another round of what the Progressive legal movement already sold them.

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246 responses to “National Review Urges Conservatives to Reject 'Libertarian Constitutionalism'

  1. Holloway writes, which means they “admonish the courts to show deference to the will of the majority” and uphold most democratically enacted statutes.

    Democracy is evil, and the majority is usually wrong.

    1. If people must have a fetish why democracy? I mean couldn’t they be into golden showers or something? At least in that case I wouldn’t be getting urinated on.

      1. If people must have a fetish why democracy?

        I believe a great many people succumb to a combination of utilitarianism and Occam’s Razor: if most people say something is right, it probably is.

      2. “Democracy” Isn’t that the cult within which the perceived 51% get to piss all over the perceived remaining 49% even if in reality the 49% is more like the 97%?

        1. Majority rules is not applicable to legal pot because FYTW.

      3. You have x + y people in the room, where y exceeds x, & they can’t all have their way. You’d rather disappoint y or x?

        1. If the Declaration of Independence had said,

          “to ensure the majority isn’t disappointed, governments are instituted among men.”

          Then your statement might be relevant, however I think is actually says,

          “to ensure these rights, governments are instituted among men.”

          It’s a long explanation, Thomas Paine explained it well in “Common Sense”, suffice it to say that the whole of government…all of it….is here for one reason only, to ensure our individual rights.

          Now, that’s just me and anyone is free to disagree. 🙂

          1. It’s a long explanation, Thomas Paine explained it well in “Common Sense

            Is that where he said, between the lines, that Ron Paul is kinda wacky on individual rights?

        2. How bout mind you own business, leave the government out of it, and neither x or y are disappointed. There really doesn’t have to be a law to settle everything, ya know. Only for people who have a psychotic need to “win” and force others to bow down to their superiority.

          1. Only for people who have a psychotic need to “win” and force others to bow down to their superiority.

            There you see it! Winning elections gets in the way of libertarian purity.
            The way to create a free society is … ummm … a military dictatorship?
            Is this why the libertarian label is rejected by 91% of libertarians? (Cato Zogby Survey 2006)

            1. Nice try. You missed the operative AND. so dumb.

              1. Nice try. You missed the operative AND. so dumb.

                But what if somebody literate reads your claim that trying to get elected is …. psychotic?
                Yep. Precisely why the libertarian brand is rejected by 91% of libertarians, and accepted by only 5.3% of Americans.
                And here’s the definition of operative:
                http://www.merriam-webster.com…../operative

    2. Were the founding fathers not worried about the tyranny of the majority and limiting the powers of government- even a government following the will of the people?

    3. Isn’t the free market basically a democracy? People vote with their dollars and products that don’t get enough votes die away. The difference being, of course, that no rights violations are imparted onto the minority by the majority in the market place.

      1. Umm the difference is the market uses persuasion, not force.
        Not to imply our government is a democracy.

        1. you do realize that you basically agreed with Ed, yet you use of “umm” implies you are unaware of it.

          1. you do realize that you basically agreed with Ed, yet you use of “umm” implies you are unaware of it.

            Ummm, did you see me say I was talking about …. the difference? Your statement implies that you are unaware of it.

            1) We each stated a different “difference” between a market and a government.
            2) “Difference” was the only thing I mentioned — a rather massive clue that you missed.

            1. Nope. the difference you claimed was basically the same. Think it through.

              1. Herewego …

                1) The difference being, of course, that no rights violations are imparted onto the minority by the majority in the market place.

                2)Umm the difference is the market uses persuasion, not force.

                Ummm, in government the rights can obviously be imparted onto the minority by the majority. And rights can be violated in the market without force.

                Think it through.

                I already had,

    4. Here’s an idea.
      How about eliminating the Soviet Supreme Court we have in Washington, DC? Have you read some of the asinine decisions they have handed down the past half century? I wear socks that can do just a good a job as these mental midgets from Hell have been doing.
      Let the states supreme courts handle the issues.
      Oh, wait. That makes sense.
      Please don’t flog me for employing common sense in government, especially the judiciary.

      1. Please don’t flog me for employing common sense in government, especially the judiciary.

        Common sense says fundamental human rights can differ from state to state? And, guess who approved the Supreme Court as a co-equal branch of the federal government? Ummm, when the states ratified the constitution!!!

        1. Your comment is sad but true, Michael. However, times change and experience indicates there is no real need for a supreme court of the US. The justices are rarely, if ever, impeached (Abe Fortas comes to mind) answer to no one and be on the bench until they die while simultaneously making asinine decisions when obviously senile or blatantly disregarding their constitutional duty of applying constitutional standards for their decisions. The SCOTUS is too powerful and, as history has clearly shown, have their own agendas to entertain and does not have the interests of the United States’ Constitution in mind when rendering their decisions. The states made a terrible decision when they ratified the Supreme Court as a co-equal branch of government. Its time to correct that egregious error by eliminating the SCOTUS now.

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

    Who knew that Bork was a prominent Reason troll?

    1. Bork was full of shit. As soon as popular opinion turned against his personal hobby horses, he failed to see the primacy of the will of the majority anymore.

      1. Your right, even Tony is more principled than Bork.

        1. Let’s not get carried away now…..

          1. Bork was in a position to do far more damage than Tony ever will. All Tony will ever accomplish is spreading around anal gonorrhea and killing himself after only two unsuccessful attempts.

            1. That’s a pretty charitable assessment of Tony’s ability to ever succeed at anything. Motherfucker could throw himself at the ground and miss.

              1. Motherfucker could throw himself at the ground and miss.

                That’s how you fly.

                1. He doesn’t seem to think he’s constrained by the laws of economics. Why should the laws of physics be any different?

      2. The best depiction was of BORC, the robot on Sledge Hammer! that self-destructed when it tried to follow 2 masters in opposite directions.

    2. I’m sorry, but it was my understanding that the whole point of the Senate and Electoral College was specifically to prevent simplistic majoritarian rule in America. See also the amendment process.

      1. The Founding Fathers were just a bunch of rich old white men who didn’t want to pay their fair share. What do they know, anyways?

        1. The difference between democracy and A republic for one thing.

          1. That used to be one of my favorite platforms. After years of getting no response except, *blank look* “Well… but… irrelevant” I had to stop before I ran out of sarcasm.

            Now, the difference between a democracy and a republic is… like gumption. If you already know, we understand each other. If one doesn’t know, it would be too much bother to explain, and probably futile.

            1. Learn how to explain it.

        2. Damn one percenters! They should Check their Privilege!

      2. …and to substitute for it complexic majoritarian rule.

  3. Checks and balances are so quaint.

  4. “conservatives must decide whether to buy what the libertarian legal movement is selling.” I agree. But at the same time, conservatives must also decide whether to buy another round of what the Progressive legal movement already sold them.

    BURN!!!

    /kelso

    1. And it burns twice as bad on the way up.

    2. It buns us

      1. Fuck

  5. Three generations of National Review are enough.

    1. If only they had shuttered it when Buckley passed. He, at least, was a big enough snob to reject the idea that a majority of anyone should rule over him. And also egotistical enough to engage literally anyone on their philosophical principles. With maybe the exception of Jonah Goldberg, I have no use for the NR crew, because they are fawning toadies of the pro-government Right. Fighting over whether to spend $3T a year on Social programs or Military is not conservative, simply reactionary.

      1. How about Kevin Williamson? I’ve enjoyed…ok, not enjoyed, that’s the wrong word but some of his writings on our absurd and hanging-by-a-thread fiscal situation have been enlightening.

        I don’t read NR very much. I used to subscribe a long time ago but gave it up after their stance on gays and religion became more patently obvious and distasteful, not to mention just wrong.

          1. While Williamson does certainly cop a sometimes dismissive tone of libertarians there, I think his central issue is Ms. Weeks conflating her libertine aspects with libertarianism. Moreover, nowhere within that does he ever suggest that she should be forbidden from engaging in the activities she engaged in. He only suggests that the idea that porn is the cutting edge of the free speech movement is preposterous when political speech, precisely the thing the first was designed to protect, is the very thing under threat in the modern era.

            And he may be socially conservative himself and have judgements about the porn starlett, but that doesn’t mean he seeks to legislate her porn out of business. As he quotes Buckley: “”we emancipate ourselves from the superstition that that which is legal is necessarily honorable.”

            I find myself wishing many of my fellow libertarians shared this same view at time.

      2. Buckley also cared about the English language and its correct usage. I disagreed with him on plenty of things but I respected him for his insistence on using the English language correctly. Use whatever language you wish. But whatever language you choose – use it correctly.

        1. It’s so nice when two people have the same stick up their asses.

          1. Rule 34

          2. The purpose of language is to communicate. The rules of a language exist to facilitate that communication. If you speak Spanish, please speak proper Spanish. If you speak Klingon, please speak proper Klingon. If you speak Esperanto, please speak proper Esperanto. If you speak English, please speak proper English. The reason I say this is to facilitate communication. When language breaks down we have politicians arguing that “it depends upon what the meaning of ‘is’ is.”

            1. The ‘rules’ of a language are semi-formal codifications of contemporary usage trends and trailing indicators of what constitutes coherent communication. The rules of language change as the usage changes, which is why English is a different language today than it was 500 years ago and will likely be even differenter 500 years from now.

              1. will likely be even differenter 500 years from now.

                That’s not a word.

                /misses point

                1. Not yet – give it a few years!

              2. Hugh, have you ever had a text conversation with a millenial girl? If that is the future of language, we’re better off going back to grunts and heiroglyphics.

              3. Hugh, rules can change for a variety of reasons including new technology and contact with other languages. When whim rules language, however, it makes communication difficult if not impossible.

            2. So you eeject the false Latin grammar rules that for too long oppressed English grammar?

      3. Charles Cooke is quite good.

  6. “the libertarian constitution is not the American Constitution, and the allegiance of American conservatives must be to the latter and not the former.”

    In point of fact, the American Constitution is a libertarian one in many ways. It just has not been followed as intended. If the US government was following the Constitution, then we would live in an essentially libertarian state.

    1. Eh, the Constitution and Bill of Rights have some major oversights to them from a libertarian perspective. It’s important to avoid reading too much libertarian philosophy into it.

      That being said, yes, absolutely American government would be more libertarian friendly if the Bill of Rights was followed.

    2. At least at the national level. Many of the state constitutions, especially of the newer states or those with less onerous amendment procedures, are quite unlibertarian.

      1. Yup. It seems they are also much more easily amended – very problematic.

    3. This is true. The United State’s Constitution is essentially libertarian. However the socialist slavers in the Republican and Democratic parties have found immense power and wealth by engaging in torturous mental gymnastics by launching counter-productive progressive ideals into our (read the unwashed masses) lives.
      The ruling elitist filth who make it their life’s work to further enslave us will never revert to the true libertarian ideals our founding fathers outlined in the United State’s Constitution because then they would have to surrender their power, wealth and prestige and be forced to productive in our society instead of parasitic.
      Good luck with that.

      1. Umm, but you also say, on this same page, that the Supreme Court should be abolished.
        That means you oppose the idea of universal and equal human rights.

        “Right to Liberty? Let each states define their own”

        https://reason.com/blog/2015/03…..nt_5163447

  7. Nevertheless, he urges National Review’s conservative readership to “decline…to buy what the libertarian legal movement is selling.” Why? Because “the libertarian constitution is not the American Constitution, and the allegiance of American conservatives must be to the latter and not the former.”

    While he is techincally right that judicial review is not explicitly stated within the constitution, the entirety of the constitution is largely a check on the branches most associated with democratic rule and popular sovereignty. The framers were almost equally concerned with the rule of the mob as they were with the prospect of a king.

    1. Not to mention that has been settled since about 1791. If he wants to change it, write an amendment.

      1. Why do you need an amendment? We are not following the Constitution now anyway. This is my most frequent argument against those who wish to pass this or that amendment. Please call me when we start following the Constitution as it is now. Otherwise any amendment to it could be ignored like the rest of the Constitution.

        1. They’re following the Constitution. Well, the abridged version anyway:

          “Necessary and Proper; Promote the General Welfare; Regulate Commerce.”

          Unlimited power!

          1. ‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.

            ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean ? neither more nor less.’

            ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

            ‘The question is,’ said Humpty Dumpty, ‘which is to be master ? that’s all.’

    2. Modern conservatives are perfectly OK with mobs as long as they are mobs of modern conservatives. They are less enthusiastic about other types of mobs.

      1. Umm, without the Supreme Court, who would defend us against abusive legislators?
        I never get an aswer to that (which makes sense)

        Marbury v Madison was never challenged because it’s fucking obvious.
        Especially to those who know the damn constitution.
        The Court’s jurisdiction can be limited by the legislture.
        We call it “checks and balances”

    3. Yet strangely enough, Jefferson hated the Marbury decision and thought Marshall was putting the republic under the tyranny of an oligarchy.

      1. We are under a tyranny of an oligarchy – but it is not due to the Marbury decision. It is because the Constitution is not being followed ENOUGH.

      2. Not to accuse Jefferson of acting in bad faith, but I think the fact that he was President really affected his reaction to the Marbury decision. Power and all that.

        Plus, when the guy from the other major political party tells you what your office can’t do, human nature dictates there will be bad blood between the actors.

        1. This is worth noting. Jefferson may be a libertarian icon for his role in the framing and his role in revolutionary war America, but as a POTUS, he was a bit disappointing to libertarian political thought (at least within the context of the day).

          1. Einstein became useless once he rejected the consequences of his own theories.

            1. Einstein supported socialism. Progressives like to say this proves that they’re right, because he was like really smart and stuff. To me it only shows that a brilliant physicist can be a political dumbass.

              1. Einstein was also the man who coined the term “dismal science” for economics IIRC. Anyone who subscribes to socialist economic theory of the labor theory of value is clearly someone whose knowledge of econ can be well described as dismal.

                1. I believe it was the English writer Thomas Carlyle who coined the phrase in his 1849 article, Occasional Discourse on the Negro Question:

                  “Not a ‘gay science,’ I should say, like some we have heard of; no, a dreary, desolate and, indeed, quite abject and distressing one; what we might call, by way of eminence, the dismal science.”

                  1. Fascinating. I’m now going to make a point of looking for the Occasional Discourse on the Negro Question. Of course, were I to check that book out at the library, I will likely end up on a list somewhere with the govt.

            2. The best Einstein story was when he discovered “spooky action at a distance” with the hope of using it to discredit quantum mechanics. When spaaad was later demonstrated empirically, he must have been beside himself

          2. His debt reduction plan was good.

    4. While he is techincally right that judicial review is not explicitly stated within the constitution…

      Article III, Section 2, “… the supreme Court shall have appellate Jurisdiction, both as to Law and Fact…” (emphasis added)

      While the term “judicial review” was not explicitly used, granting appellate jurisdiction to both “Law and Fact” explicitly grants the authority, as expressed in Marbury v. Madison, to review the Law.

      1. Plus, the jurisdiction can be limited by Congress,

        The Supreme Court attacks usually come from anti-liberty tyrants like Orval Faubus, Ron Paul and others who think like they do.

  8. Democracy is the gluttons and the drunks teaming up to get a majority vote that everyone chips in the same amount at the restaurant to cover the tab. You can stay home if you don’t like the arrangement, but you still need to pitch your 20 bucks into the pot.

    1. It sucks, but it beats tyranny, even one in a black robe.

      1. Democracy is tyranny.

        1. Yes but it is less focused tyranny. It takes a lot for a society to really go stark raving mad, though it does happen. But even when it does, you are fucked anyway. Meanwhile, an individual tyranny is virtually certain of going bad and to be corrupted by the power.

          1. Yes but it is less focused tyranny

            Fickle and unpredictable.

            Which it is why it is good we don’t live in a democracy.

    2. Democracy is two wolves and a sheep voting on what’s for dinner.

      A constitutional republic is a well armed sheep contesting that vote.

      1. I skipped over the obvious quote.

        1. What can I say. I’m a master of the obvious.

          1. I’m not complaining. I love that quote.

      2. Except that, no matter how well armed the sheep is, hooves can’t pull triggers. The wolves will eat the sheep.

        A democracy is simple majoritarian rule. It always leads to a tyranny of the majority

        A constitutional representative democratic republic(which is what we have) is complex majoritarian rule with the proviso that there are x number of things that are not ever on the table to be voted about……..(unless the process that has been provided for amending those things is used–and they are amended via various majorities). As this is a new political system we cannot say for sure that it will have the failings, albeit delayed, of simple majoritarian rule, but it certainly appears that they do lurk there.

  9. Unfortunately, it is a bit hard to judge who gets the better of it here since the National Review article is protected by a pay wall. Even still, Root’s response is pretty sorry. So what if Bork liked Homes? That doesn’t mean the national review guy does or likes him in the same way Bork did. The entire post is just Root engaging in guilt by association. National Review likes Bork who liked Homes and Homes and Homes as a big meanie so therefore National Review is wrong. Really?

    As far as the substance of the argument going on here, I think Root completely misses or misstates the argument. The argument isn’t that courts should roll over and play dead to out of control legislatures in the name of restraint. The argument is that striking down a law passed by a elected legislature and telling the people of that state or the entire nation to go fuck off they can’t do that is a big deal. And courts ought to have a good reason for doing so. So the burden should be on people who challenge a law to explain why taking such an extraordinary step is necessary. Saying that doesn’t mean taking such a step isn’t sometimes necessary. It clearly is. It just means you better have a good reason for doing it.

    1. He directly quotes Bork…

      1. So what? Moreover, he quotes Bork in a totally deceitful manner.

        Conservative hero Robert Bork expressed that same idea (albeit in less colorful terms) in his 1991 book The Tempting of America. “In wide areas of life,” Bork wrote, “majorities are entitled to rule, if they wish, simply because they are majorities.

        Bork is right. Majorities do get to rule over wide areas of life. The Constitution doesn’t prohibit all bad law or mandate a Libertarian government. It mandates a very limited federal government and via the 14th Amendment sets some very broad boundaries for state governments. Root pretends that quote means Bork thinks majority rule makes something Constitutional. That is a complete fucking lie. That is not what Bork meant. Bork meant just what it says, that many times the Constitution doesn’t stop majorities from doing what they want. It doesn’t and Root knows it.

        1. I read The Tempting of America for leisure and personal interest in college when I was a young polisci major with ambitions of law school (that FSM I never went that route). Bork does spend significant portions of that book making his utter contempt for Marbury v. Madison well known.

          I understand the thesis you’re putting forward here that the constitution doesn’t prohibit most laws since even poorly written laws don’t violate the core rights secured in the amendments (though it should be noted that test of constitutionality from a libertarian perspective shouldn’t just be not violating amendments but also that the power asserted fall within the enumerated powers, a strain of thought all but forgotten in the past 100 years).

          But even you note that the court does have the responsibility as a check on legistatures and executives to strike down laws that plainly violate the Bill of Rights, and in the absence of Marbury v. Madison the courts would lack any such power to do so.

          1. (thatthank FSM I never went that route).

          2. in the absence of Marbury v. Madison the courts would lack any such power to do so

            If the court could give itself the power through Marbury in the first place, then presumably it could give itself a more narrowly tailored power in the absence of Marbury.

            In practice, though …

            1. first line should be all italics except for “Marbury v. Madison”

              1. It’s not Strunk & White here man, you need not quote everything perfectly.

          3. At some level Marbury has been bad in the sense that it read the Congress and the President out of what was supposed to be a three way system of reading the Constitution. The Constitution never intended the Supreme Court to have the ultimate say on what it meant. It was supposed to worked out among the three branches. Bork is right about that. I think our reliance on judges has had over time a bad effect in that instead of fighting for our rights we expect judges to do it for us. Worse, we have allowed judges to commit the worst sorts of tyrannies in the name of “rights”. The founders knew that it took more than an enlightened group of judges to maintain a Republic and our reliance on the Court as the single enforcer of our rights has caused us to forget that.

            1. The Constitution never intended the Supreme Court to have the ultimate say on what it meant.

              Article III, Section 2: “… In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make…” (emphasis mine)

              As that is the original text of the Constitution, it reads pretty clear that the intent was absolutely to grant the Supreme Court the power to adjudicate the Law. And since the Constitution is the “supreme Law of the Land” (Supremecy Clause in Article VI), it falls under the same purview.

        2. “The Constitution doesn’t prohibit all bad law or mandate a Libertarian government. It mandates a very limited federal government and via the 14th Amendment sets some very broad boundaries for state governments. ”

          9th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

          It’s very simple. If it’s not prohibited by the Constitution to the States, it’s left to the States. If it is prohibited by the Constitution to the States, it is reserved to the people.

          1. 9th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

            That’s the TENTH. The 9th proves you wrong.
            “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

            It’s very simple. If it’s not prohibited by the Constitution to the States, it’s left to the States.

            Despite the wackiness of Ron Paul and Orval Faubus, states cannot have powers which have NEVER been delegated.

            What the REAL 9th Amendment does is define two sets of rights.
            1) Those delegated to the federal government.
            2) ALL OTHERS are retained by the people.
            3) NO powers are delegated or reserved to the states. None/

            Rights trump powers, which is what “delegated powers” MEANS

    2. “So the burden should be on people who challenge a law to explain why taking such an extraordinary step is necessary. ”

      No John,

      The 10th Amemdment confines the federal government to spefically enumerated powers. The burden should be on those defending a law to explicitly name which ennumerated power allows it and prove why it does.

      1. So what? That just means that it is up to you to show why this law goes beyond those powers. The 10th Amendment says nothing about burden. I can recognize the enumerated powers and still expect you to show me why what the government is doing here isn’t one of them. Indeed, if it isn’t, why are you so afraid of being expected to show why it is?

        1. Switching the burden of proof is a logical fallacy. You’re supporting a logical fallacy. You know who else likes logical fallacies?

        2. I can recognize the enumerated powers and still expect you to show me why what the government is doing here isn’t one of them

          There are 17 enumerated powers, and they’re mostly spelled out in fairly certain terms (outside of the infamous commerce clause). It doesn’t seem like much evidence need be presented to show that most laws passed by the federal legislature go far beyond anything that can be remotely construed Article I Section 8.

          1. i agree. So I don’t why having such a burden should be a big deal. Again though, you are a fool if you think judges making a habit of invalidating laws will work out well. It won’t. Most judges are not Libertarian and even if they were wouldn’t be for long as the power to invalidate laws corrupted them. If Root’s ideas were ever put into practice, they would quickly become an excuse for judges to enforce progressive policies that legislatures refused to enact.

            1. Again though, you are a fool if you think judges making a habit of invalidating laws will work out well.

              How wouldn’t it? Seriously. Unless they started invalidating laws against things like rape and murder, I really don’t see how it would be a problem.

              Give me some examples of legislation that you think progressive judges might try to invalidate that currently add to our liberty and freedom. Just one even.

              1. Almost any law curtailing the possession of a firearm of any kind or type?

                If the 2A was most certainly included to hedge against tyrannical government, it follows that the populace should be able to avail themselves of everything the suspected tyrant has. SAMs, RPGs and Nukes would/should all be included as the muskets and cannon provided for in the 2nd.

                1. SAMs, RPGs and Nukes would/should all be included as the muskets and cannon provided for in the 2nd.

                  I’ve got no problem with that. Seriously. That shit is so expensive that only governments can afford it anyway.

                2. Actually, they are. You can own a howitzer for example, if you can afford the license.

                  https://www.youtube.com/watch?v=3IeEa8tqUkE

                  1. Hughes Amendment to the FOPA: nothing newer than 1986 for you

            2. How exactly does invalidating laws provide cover for crafting policy? It seems to be that progressive policies require enforcement mechanisms and legislation to bend the people to the will of their noble SWPL betters, and I fail to see how a court that were to strike down laws would bring about such things.

              1. How exactly does invalidating laws provide cover for crafting policy

                Because getting rid of a law is just putting the opposite policy in place. A state bans gay marriage for example, and the judge says no, you must have gay marriage.

                A state says “students must go to the school nearest their home” and the court says no that is discrimination and violates due process, invalidates the laws and writes its own. A state passes a law that gives conceal and carry, nope, that violates the right to safety, no one can have conceal and carry.

                You people fucking amaze me. If judges actually ruled like you think they would, we wouldn’t have any problem.

                1. You’re adding in that whole “writes its own” laws thing.

                  Saying “No, this violates the constitution, try again.” is not them writing their own laws.

                  1. No Designate, I am adding in what judges will actually do, which is write the law. In practice Root’s rule would be used by such judges as a wonderful excuse to do what they want to do. Again, if judges could be trusted with the power Root would like to give them, it wouldn’t matter who had the burden because they would actually protect us from tyranny. They don’t and won’t and all Root’s proposal does is make it easier for the bad ones, which is most of them, to do harm.

                    1. Admittedly, I didn’t read the whole article (who does?), it just seemed to me that what at least most people here are arguing (albeit simplistically) is that the judiciary do it’s job and actually be a check on the other two branches.

                    2. Judges have been doing that for a while, mandating local expenditures on schools & housing in the name of non-discrimination.

                  2. And how do you give them more power to do the latter without giving the more power to do the former?

                2. A state passes a law that gives conceal and carry, nope, that violates the right to safety, no one can have conceal and carry.

                  Without a law banning conceal and carry, then it is legal. Laws that ban it should be struck down.

                  1. But what if the judge fails to strike those down, & only strikes down exceptions to the ban?

                3. Because getting rid of a law is just putting the opposite policy in place.

                  That’s Tony style logic. An absence of policy is not policy anymore than an absence of faith is religion.

                4. Because getting rid of a law is just putting the opposite policy in place

                  The absence of a law is not a “policy”.

                  Frankly, given the current situation, any circumstances leading to the abolition of laws is worthy of consideration.

                  1. That said, a complaint about more narrow policy redrafts is I think a valid, but seperarate, issue here. Things like the obamacare tax fix applied by the Roberts court is a good example of judges redrafting a law from the bench. I find it germane to our discussion that such a manuever was undertaken as part of a Borkian deference to Congress, rather than the inverse. Do you?

        3. You’re right, it’s pretty simple:

          Here’s a copy of the constitution. It does not say that you have the power to do X. Sorry, you lose. Next item on the agenda?

        4. John

          The burden of proof always lies on those making the affirmative condition claim.

          No one is required to prove a negative.

          If I am accused of robbing a bank, the burden of proof is on the prosecution who claimed that I did it. The burden of proof is not on me to prove that I didn’t do it.

          The same goes for a court case where the government is making the affirmative condition claim that it has a Constitionally authorized power to legislate X.

          1. Bullshit. No one is required to prove a negative. Saying “this isn’t regulation of interstate commerce” is not proving a negative since there is specific things in the world that are not that. It is proving that positive, namely it is regulation of intra state commerce or of behavior that is personal and not commercial.

            1. Saying “this isn’t” is by definition a negative.

          2. But that’s not what happens. The plaintiff is the one making an accusation(this law violates my constitutional rights).

            To follow your example: Congress passes a law. That is an act, robbing a bank is an act. Someone makes the claim that the act is illegal/unconstitutional. The burden of proof is on the accuser.

            1. No – the government is asserting the affirmative CONDITION – that there exists an enumerated power in the text of the Constitution that gives it the authority to pass the law that it did.

              The burden of proof is on them to identify what that enumerated power is and why it includes what the law in question has done.

              The entire purpose of the Constitution is to limit the power of government – not to limit what individuals can do.

        5. The 10th Amendment says nothing about burden

          Read the Ninth, the one Ron Paul lies about.

      2. The burden should be on those defending a law to explicitly name which ennumerated power allows it and prove why it does.

        Who explains that to Ron and Rand Paul?

  10. ” Thomas Jefferson, who was no fan of Marshall’s penchant for wielding judicial authority. Marshall’s “twistifications in the case of Marbury,” Jefferson wrote in 1810, “shew how dexterously he can reconcile law to his personal biasses.”

    This is what it really comes down to for me. It’s not activism vs restraint.(keep in mind that “activist” judges can essentially rewrite the law to a degree. The SC was once one vote away from finding that the constitution guaranteed a minimum income to all Americans) The real issue is judges giving an honest and unbiased reading of the constitution vs simply deciding which outcome they like and doing whatever is necessary to rationalize their decision.

    1. I agree. “Activism” such as it is, is results based jurisprudence. It is adopting whatever theory is available to get the result the judge wants. Restraint is adopting a consistent view of the meaning of the document and judging accordingly results be damned.

      1. Prove that you’re not still beating your wife! Prove it!

        1. As a member of the patriarchy, that’s gonna be even harder than usual.

    2. “The real issue is judges giving an honest and unbiased reading of the constitution vs simply deciding which outcome they like and doing whatever is necessary to rationalize their decision.”

      Exactly. Unfortunately the “legislating at the bench” thing seems more appealing than plain, boring impartiality.

    3. “The real issue is judges giving an honest and unbiased reading of the constitution vs simply deciding which outcome they like and doing whatever is necessary to rationalize their decision.”

      Yep. And as far as the Federal Constitution goes, it allows fairly unlibertarian State governments. And that’s fine. Argue about it in your State.

      1. And as far as the Federal Constitution goes, it allows fairly unlibertarian State governments.

        Uhh, no. The Ninth Amendment is the libertarian amendment for that very reason.
        Ignore the bullshit from Ron and Rand Paul.

    4. Describe an alternative where judges do not rule on constitutionlity.
      You’re pissed because they don’t always agree with you. That’s how it’s supposed to be.

  11. Problem: gay and trans people are abused in prison
    Solution: abolish prison?

    http://everydayfeminism.com/20…..er-rights/

    1. I’ve heard worse ideas.

  12. I am not seeing what Root’s alternative is. Does Root honestly believe it is a good idea for courts to consider every law unconstitutional until proven so? That seems like rule by judge to me. Not every law takes your rights. Some laws protect your rights and you can spin about any law as being oppressive or unconstitutional if you find a sympathetic enough judge. So if that isn’t Root’s argument, what is?

    Ultimately burden of proof is red herring. I am fine with plaintiffs having hte burden of proof to show why a law is unconstitutional as long as the judge has a rational view of the Constitution. Given a judge who sees the document as something that means what is says and not some living bullshit that conforms to current fashion, I have full confidence that plaintiffs will be able to meet the burden of showing laws to be unconstitutional. I mean if you can’t meet the burden of showing why the law is contrary to the Constitution, maybe it really isn’t? I am pretty sure giving the tie to the legislature won’t save many truly oppressive laws. And I know giving it to the plaintiffs will give all kinds of judges delusions of grandeur.

    1. If the Constitution is an enabling document that spells out enumerated powers for the government, then the burden of proof is on those who assert that it gives them the power to pass a law.

      1. Generally speaking, this seems reasonable.

      2. I’ve learned that when john is writing really long fallacious screeds on a thread, he’s already made up his mind and no amount of logic or evidence will change it. Best to just let him be until the meds kick in.

        1. Good point.

          1. Thanks. It would help if I could follow my own advice.

            1. Shut the fuck up and stop messing up the thread by making stupid points? Yeah, that is good advice for you to follow, though I doubt you would ever post on here if you followed it.

          2. Thanks. It would help if I could follow my own advice.

          3. Two words about this. Body Armor.

        2. Let me give you a tip Hetero “I don’t understand his point but don’t like it” is not what “fallacious” means. If you can’t make an argument, must suck to be stupid. Your stupidity, however, is no reflection on my honestly.

          1. Switching the burden of proof is fallacious.

          2. John,

            The burden of proof is on you to show that the burden of proof is on us to prove a negative.

      3. IANAL, but I’m pretty sure the burden of proof is always on the party that’s making the accusation.

        1. The 10A puts the burden of proof on the government.

          1. No, it doesn’t. 10A states that any power not given(I would add the word “expressly” if I could) to the federal government are reserved to the states or to the people. It says nothing about the burden of proof. It is essentially a law meant to restrain congress, just as laws against theft are meant to restrain thieves. But that doesn’t put the burden of proof on an accused thief.

      4. Not necessarily. The Constitution is a foundation document. It should be read like any other document. There is nothing special about it.

        You and Root think it is a great idea to put the burden on the government asserting its power. it sounds so pretty. What you fail to realize is that not every law is some act of oppression. Sometimes laws act to protect people or property or other rights. I suppose your rule would work fine if every judge were you or Root. The problem is every judge isn’t. If I were a Progressive judge I would love such a rule. Voter ID laws? Who said the government has the power to demand ID? Welfare to work laws? Laws that even try to limit welfare? The burden is on the government to show how it has the right to deprive people of their rights.

        Root thinks rule by judicial tyranny would be great because he only imagines a world in which it delivers various Libertarian ponies. Sadly, we don’t live in that world. Worse, judges have shown over the past 40 years to be much more willing to abuse people’s rights in the name of politics than even legislatures. Sorry, but I am not buying the idea that the judiciary that gave us forced busing is going to magically start using their power to protect anyone’s rights or anything but their own power.

        1. How would government welfare even have come about if every law was reviewed for constitutionality?

          1. Easy. People have a right to life and if they don’t get welfare they might starve. Also, people have a right to due process and equal protection and are deprived that by being poor or having access to inadequacy services.

            Have you been in a cave for the last 50 years? The courts used “constitutional rights” as an excuse to take over our schools, prisons and large areas of life and mandate policies that no legislature would have ever agreed to. What the hell makes you think they would use the power you want to give them to limit government?

      5. “enumerated powers for the government,”

        Enumerated powers for the Federal Government, with a few limitations of State governments. What each state does beyond that is the business of the people in that state.

    2. I am fine with plaintiffs having hte burden of proof to show why a law is unconstitutional as long as the judge has a rational view of the Constitution.

      Well, that’s the problem, isn’t it? The judges don’t have a “rational view” of the Constitution. So what is to be done?

      1. Sure they don’t. Now explain to me why giving them more power to overturn laws is in any way a good idea? I don’t trust judges and that is why I only want them overturning laws when they are clearly unconstitutional.

        1. I don’t want laws passed unless they are clearly constitutional.

        2. Last time I checked, Marbury v. Madison had over 200 years of standing precedence and associated jurisprudence, so I’m not exactly clear where this “new power” is coming from.

          The fact that you don’t trust the judges is entirely the point. What exactly are you advocating for here? If we have enough power to choose the judges, then we ought to choose judges we like. If we don’t have that power, then it doesn’t really matter what we like, as we’re not going to get it.

          1. In fairness, I’ve always found the notion of precedent and stare decisis an absurdity. It’s the legal equivalent of inertia and offers no rationale for why precedent should remain other than this is the way it’s always been. It lacks any compelling logic.

            1. Adhering to precedent avoids creating an atmosphere of uncertainty that can cripple a society. As much as I abhor the notion of a bad precedent being adhered to (e.g. Dred Scott v. Sandford), I think that the consequences of having a court system that can radically alter the rules on a whim would be worse.

              The problem is, and this is really the same problem as I’m arguing with John about, how bad judges and bad rulings come to be and how we can prevent that from happening.

            2. It also functions as a way for the judicial system to retain authority. If past judgments could always be thrown out, and maybe shifted back and forth between inconsistent or opposite options repeatedly, both the general public and the political class would see the judiciary as an arbitrary entity whose judgments were totally open to question. Stare decisis maintains a(n admittedly somewhat specious) patina of consistency. It’s a self-preservation feature of the type that many organizations and institutions naturally generate.

          2. What I am getting at is that judges should only strike down laws when the plaintiff shows they violate the Constitution. It is pretty simple. All saying “the government has the burden” does is tell judges to go ahead and strike down any law they don’t like. Judges are going to likely abuse any power you give them. They therefore should have the minimum power necessary to do their jobs. Root lives in a fantasy world if he thinks powerful judges are going to somehow save him from a malevolent legislature.

            1. I think you are conflating a finding of unconstitutionality with the “penumbras and emanations” bullshit that the court has dug out of its ass. What law passed by the federal government could possibly be so important that if it were struck down the consequences would be severe?

              The only such laws I can think of are laws concerning the federal government itself (e.g. the Pendleton Act). Since such cases would only arise in disputes between federal employees, I can see the argument for placing the burden of proof on the plaintiff. But that’s really a different kind of law from those concerning the behavior of individuals (e.g. the Controlled Substances Act).

              1. No. You are assuming that every judge is going to think like you and be a Libertarian. They won’t be. And even if they were, they wouldn’t remain one very long with the power you want to give them.

                Again, judges have never once saved anyone from tyranny. From Dred Scott, to Jim Crow to Nazi Germany to the commerce clause, judges have always rolled over and bowed to a tyrannical government or public.

                1. Dred Scott was about standing. At no point did the majority find any law unconstitutional. They simply held that a slave was not a person and so could not sue. That is an abhorrent decision but it could have happened even with the most limited court.

                  Jim Crow is in fact a counterexample to what you are arguing. Plessy involved the court upholding a law but inventing some bullshit justification for doing so. Again, bad decision, but irrelevant to the discussion at hand.

                  And please stick to US examples unless you are going to provide some context and explain how foreign examples are relevant here.

                  1. Kbolino,

                    You totally miss the point. The point is the judges ruled with what the popular opinion wanted in all of those cases. Do you honestly think that the Plessy Court would have had a change of heart if only Root had been there to explain to them how great it is to overturn laws?

                    Beyond that you seem to operate under the assumption that no court could ever enforce tyranny by invalidating laws. And that is just bunk. Some laws protect your rights and your property. And a court won’t be making you free by striking those laws down will they?

                    1. Are you arguing for anarchy? What is your point? Bad judges make bad law, news at eleven.

                      How can a judge striking down a statute concerning the behavior of non-government actors due to unconstitutionality be a bad thing?

            2. I think you’re overstating Root’s argument.

              Bork said majorities get to rule but there are some areas in which the individual must be free of them. Government first, liberty second.

              The libertarian argument is the opposite. Individuals are free, but in some areas majorities get to rule because they have been authorized to do so. Liberty first, government second.

              Does Root honestly believe it is a good idea for courts to consider every law unconstitutional until proven so?

              Where is he making that argument?

              1. Then what is his argument Nerfherder?

        3. I only want them overturning laws when they are clearly unconstitutional

          They don’t do much of that John. That’s the point. Congress and the executive issue regs and laws at a rate that dwarfs the number of judicial reviews by orders of magnitude.

          1. That is because they are just as tyrannical and cowardly as anyone else. They are not going to save you and in fact are likely to harm you. So why give them more power?

            1. This isn’t about power. The Supreme Court has the power to strike down unconstitutional laws already. The discussion is about whether or not they are willing to do so and why.

              1. Sure they do. And saying they can do so even where the plaintiff can’t explain why is just giving them more power to do that.

                1. “Sure they do. And saying they can do so even where the plaintiff can’t explain why is just giving them more power to do that.”

                  Good thing nobody’s advocating that.

    3. I’m ready to sample rule by judge if it results in less laws on the books. The current situation is becoming untenable.

      1. Becoming?

      2. I think the current situation is becoming more entrenched. Tyranny of Laws, Rules, and Regulations.

      3. Some Kansas City school district tried it. Not fun.

    4. Does Root honestly believe it is a good idea for courts to consider every law unconstitutional until proven so?

      He’d be stupid, because it works exatly the opposite. A law is treated as constitutional unless and until it has been both challenged and ruled against. What you’ve said would have judges approve each and every law before it could be enacted.

      What we have is a bunch of bigots trying to deny equal rights with a VERY lame excuse. Like Orval Faubus in 1957.

  13. “John Marshall?the most consequential chief justice in the nation’s history?was a proponent of judicial restraint,” Holloway says.

    John Marshall wrote Marbury v. Madison out of order just so he could reach out and answer a question totally unnecessary to disposition of the case. And he’s considered a paradigmatic proponent of judicial restraint?

    1. Yeah, Holloway is a dumbfuck. Judicial review is not compatible with judicial restraint.

  14. “Conservatives are defenders of judicial restraint or judicial deference,” Holloway writes, which means they “admonish the courts to show deference to the will of the majority” “

    Wait, what the fuck?

    I seem to recall ‘conservative’ not traditionally meaning, “Do whatever the mob wills”…. and supposedly adhering to *legal principle* in defiance of the whims of popular political convenience.

  15. “Does Root honestly believe it is a good idea for courts to consider every law unconstitutional until proven so?” Yes, that would be an excellent start.

    1. I think it wouldn’t be a bad idea to require that every piece of legislation include a preamble that specifies exactly how the Constitution gives Congress the power to pass it.

      1. And the court could just send them back stamped (Citation needed).

      2. That’s actually a really great idea. In fact it makes so much good sense that the chances of finding a single pol to such a bill are probably very slim.

        If you’d like to try to petition any of them, though, I’d certainly sign.

        1. *to introduce such a bill

        2. I think Rand Paul has suggested something like this, but of course nothing like this has a chance of passing.

          1. Rand Paul is a bigot and a fraud, just like his dad, Orval Faubus and all the other southern racists — who are blind to the 9th Amendment.

  16. OT: My boss is so uptight- he won’t let me cross dress at work!

    http://everydayfeminism.com/20…..-unafraid/

    As an undergraduate at Duke, I spent four years learning to love and appreciate myself as a gender non-conforming person. Going into college, I thought that my desire to dress androgynously and adopt a feminine gender expression was shameful; and for the first few months of college, I hid it from others and from myself.

    But after years of work unearthing internalized oppression and masculine shame, I finally learned to keep my head high as I stomped by the frat boys in my five-inch heels. I made a name for myself at Duke, and by the end of four years I wore pencil skirts and pant-suits to meetings with the Board of Trustees. During undergrad, I became fully empowered and comfortable in my gender.

    1. While people may try to discriminate against me and tell me that I’m dressing “inappropriately” for work, I will hold on to my gender identity and sense of self. In the workplace, I will stick up for those who, like me, find that their gender does not match a prefabricated box.

      I will wear my heels, pearls, and skirts to work until, hopefully, the world can learn to respect people like me.

      So to all of the discriminatory employers out there, you better watch out. Because I am genderqueer, professional, and unafraid.

      I’m amazed there hasn’t been a lawsuit yet.

      1. …is a recent graduate from Duke University, where he studied Human Rights Advocacy and Leadership, specializing in the history of the South African LGBTQ rights movement.

        Something tells me that his employment prospects at a job that doesn’t require a uniform and paper hat are slim enough that there’s no need to worry about lawsuits.

        1. Dude = Human resources at a bank.

          Seriously. because financial services firms are so strictly regulated, they tend to get shitloads of pressure from all kind of s !#*(&$@# politically-popular groups to ‘increase diversity’. They have free-jobs out the wazoo for any dude in a skirt who will get shoved in a back office and work on ‘diversity seminar’ materials and occasionally give a speaking session twice a year at Corporate Responsibility conferences. Not kidding; its a thing.

          Either that, or dude(tte) has a free lifetime career working for some NGO/non-profit grievance-mongering outfit harassing companies to set up positions like the former.

          1. Well, yes. But if he’s in a hippy-dippy NGO or filling a diversity quota he won’t have a need to sue.

            1. I suspect this boy-named-sue will sue sooner or later, susan.

              TRIFECTA

              1. (4 really, but there’s no Quadfecta)

        2. Anyone that would hire someone with a fucking degree in Human Rights Advocacy and specializing in LGBTQWERTY bullshit deserves what’s coming to them. In a sane society, such people would starve and I would happily walk over them on my way work.

        3. People don’t respect my space suit either. My fucking boss won’t even get a radio transmitter to talk to me. He just keeps giving me memos that say that I type too slowly.

    2. Duke sucks.

    3. Is there something in the water at Duke? Seriously. False rape claims, skinny, androgynous porn-sluts, and “Waah! My boss won’t let me wear dresses at work!”?

      I finally learned to keep my head high as I stomped by the frat boys in my five-inch heels.

      Heels are not meant to be “stomped” in. Just saying.

      1. Are you accusing this fine young person of mincing, you cis-shitlord?

        1. I’m just offering some friendly advice as a great admirer of women in five-inch stilettos (which really aren’t just “walking around” shoes to begin with, they’re “pay attention to my legs and ass” shoes).

  17. The biggest problem with Root’s idea is that he assumes judges are somehow less corrupt and less tyrannical than legislatures. They are not and never have been. Judges as a general rule go along with the mob. They went along with the mob in Plessy and allowed Jim Crow and when the mob changed reversed Plessy and then decided the Commerce Clause no longer had any meaning.

    What is the point of Root’s proposed rule other than to give judges more power in the hope that they will save us from tyrannical legislatures? Judges won’t save us from shit. They might stop a few things on the edges when society isn’t too crazy. But once society as a whole decides that something horrible is going to happen, the judges go right along and torture the law and the Constitution to make it happen. Worse still, since they are part of the political and academic elite, they are often the first to buy into whatever loathsome ideology has infected the nation. So not only will they not stop tyranny, they often will use their power to help enact it by stopping the odd legislature that stands up.

    1. “since they are part of the political and academic elite, they are often the first to buy into whatever loathsome ideology has infected the nation”

      This “elites” label is remarkably flexible. Sometimes it means they ignore the mob, and vote on principle against popular will, and that’s bad because its ‘undemocratic’ and tyrannical …. then you say it means that they’re swayed by the mob, and do what ever is ‘fashionable’

      make up your mind.

      1. No it is not. It means exactly what it says. They just don’t always act the same way. The overall point that they often buy into horrible ideologies still stands.

        Beyond that, why is it that you and others on here are so rightfully suspicious of legislators who at least can be voted out of office, but them immediately turn around and suck judges’ cocks so hard it would put a golf ball through a garden hose? There isn’t a single instance in history where the judiciary didn’t roll over to tyranny and in most cases they actively aided it. Why the hell would you think giving the courts that gave us Dred Scott, Plessy, and Wickard and a lot of other tyrannies would be a good idea?

        1. “why is it that you and others on here…”

          What the fuck are you talking about?

          I simply pointed out you don’t seem to have any specific definition of “Elite” other than “not what I agree with at the moment”

          I also took issue with Holloway’s description of “Conservative”, but that’s entirely separate.

          Where did i say anything about having some great love for judges, and disdain for legislatures again?

          1. If you don’t like judges either, you should dislike Root’s argument as much as I do. Thanks for agreeing with me.

            1. You seem to be arguing with a fantasy projection rather than the things i actually say.

    2. John,

      I am confused. Is it impossible to advocate for judiciary who may prevent laws from being enacted but not interpret them? Honest question. I think for myself and maybe oyhers here we would prefer judicial review to be a straightforward referendum of the judiciary on the Constitutionality of any law as written. The goal — which will admittedly never be perfectly attained — would be to force the legislature to write specific laws of limited scope and the executive to enforce only the balck letter law. I understand that may not be Damon Root’s stated position, but I think there has been some conflating of statements on both sides.

      1. There are countries that have a constitutional court that rules on the constitutionality of all enactments. The USA isn’t one of those countries. The USA has courts that rule on cases.

  18. I recall listening to William F. Buckley Jr. discussing ‘the libertarian credo’ with a panel quite a few years ago. Seems like they weren’t sure what to think about the movement other than it had a somewhat larger following than the American Communist Party at that time.

    1. Just don’t call him a cryptofascist. He gets violent.

      1. Is he still alive? Neo-zombie?

  19. my neighbor’s mother makes $86 /hour on the internet . She has been fired from work for 8 months but last month her check was $12427 just working on the internet for a few hours. see it here…………..

    ????? http://www.netjob70.com

    1. So the secret to collecting a $12427 check is to be fired for 8 months? Thanks! I’ll try it later today.

  20. John Marshall?the most consequential chief justice in the nation’s history?was a proponent of judicial restraint..

    Which is ironic because Marshall felt no need to restrain the federal government when it came to interpreting the Constitution is such a way as gave the federal government more power.

    Marbury v. Madison – We the Nazgul are the sole interpreters of the Constitution via “judicial review,” a term and a concept appearing nowhere in the Constitution.

    McCulloch v. Maryland – Sure the Constitution doesn’t authorize Congress to create a national bank, but that’s okay because “Necessary and Proper.”

    Gibbons v. Ogden – Gave birth to the monster we know today as Interstate Commerce Clause jurisprudence.

    Johnson v. M’Intosh – Indians have property rights? Bitch, please. Only the federal government may make land deals with Indians (which they won’t honor). Then you have to buy that land from FedGov.

  21. whats the purpose of a constitution if you are going to go along with the masses since it s the constitution that protects the few from the many

    1. We abandoned that rich old white man’s antiquated constitution thing a long time ago (and if don’t want to be labeled a violent terrorist you won’t mention it again).

    2. Because sometimes they don’t want to go along with the masses. Their asses are covered either way.

  22. my neighbor’s mother makes $86 /hour on the internet . She has been fired from work for 8 months but last month her check was $12427 just working on the internet for a few hours. see it here…………..

    ????? http://www.netjob70.com

  23. It matters not what even the founding fathers thought or wrote in letters and essays. All that matters is what they wrote in the Constitution. To simplify and paraphrase Randy Barnett, unless we stick to the plain text of the written Constitution, there is no reason to have a written Constitution. And, like it or not, the written Constitution is a very libertarian document.

  24. Indeed, libertarians have supported judicial activism for nearly a half-century. Unless one’s last name is Paul (Ron or Rand), even if you openly reject both the 9th and 14th Amendments.

    Ron Paul has called the aggressive judicial defense of the Bill of Rights an action by “rogue judges.” He even tried to forbid homosexuals from even TRYING to defend their constitutional rights. So we now see so-called libertarians claiming that states have powers which were never delegated! Even the progressives weren’t THAT bad on individual rights,

  25. Conservatives supplicate themselves at the altar of judicial restraint and cite back to John Marshall, but they also forget to mention Ogden v. Saunders: https://en.wikipedia.org/wiki/Ogden_v._Saunders

    Marshall would have forbidden state governments from impairing the right for individuals to contract privately. Hardly a restrained position when it empowers the judiciary to take a more pronounced role in common-law governance of contracts.

    1. So … if government defends the right of individuals to contract, then government is taking a more pronounced role …. by defending individual liberty. And this is bad because?

      Brown vs Board of Education was also shameful, because government took a more pronounced role in … defending individual liberty, We all know that if government takes a pronounced role in defending indivdual liberty, it’s a sure sign of abusive big government. Sounds as crazy as the RonPaultards — who revere Orval Faubus at Little Rock’s Central High School.

  26. Yes, well, Adolf Hitler was the most consequential leader in Germany’s history.

    DOESN’T MAKE IT A GOOD THING.

  27. Republicans don’t want to give up the ability to persecute immigrants, prostitutes, drug users and competition for corporate interests.

  28. “Conservatives are defenders of judicial restraint or judicial deference,”
    “Libertarian constitutionalism,” on the other hand, seeks vigorous judicial action “in defense of individual rights.”

    I’d prefer “vigorous judicial action to uphold the constitution”. That would be a major move to defend individual rights, while still respecting the rule of law. If you’re just going to vote for your side and your values, you may as well be a Progressive.

    1. Umm, that’s what “constitutionalism” is.
      The Constitution’s very purpose is to defend individual rights — else why defend it at all?
      And how does defending the rule of law defend liberty … when the only threat to liberty is unjust laws?

  29. just as Arthur said I cannot believe that some one can profit $7970 in 4 weeks on the internet . have a peek at this site
    ????? http://www.MoneyKin.Com

  30. This is my main beef with Conservatives. They seek to conserve even idiotic progressive ideas if they’ve been around long enough. We have a few around here that may lean libertarian, but they have their little progressive quirks.

    Until the Republicans can step back from that, they will always be reactionaries, waiting for the Democrats to piss off the American people so that they can get elected.

  31. If the judiciary simply upholds majority views, without considering individual rights, it is nothing more than the noose wielded by the mob.

    1. And we could vote ourselves and eliminate the judiciary!
      But I like your noose analogy.

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