Libertarian History/Philosophy

How Libertarians Are Changing Conservative Views on Economic Liberty and the Constitution

The Cornell Law Review says libertarians are reshaping the conservative legal movement.

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This month marks the 110th anniversary of the U.S. Supreme Court's ruling in Lochner v. New York, in which the Court struck down an economic regulation on the grounds that it violated the 14th Amendment right to liberty of contract. In the early decades of the 20th century, Lochner served as a key precedent in a variety of cases which limited government power, including the Supreme Court's 1917 decision invalidating a Jim Crow residential segregation law. In 1937, however, in one of the signal triumphs of New Deal governance, the Supreme Court reversed course and rendered Lochner a dead letter, declaring that henceforth the courts would no longer offer any judicial protection for liberty of contract in the face of regulatory state action.

Not surprisingly, that New Deal judgment remains widely popular on the legal left. What is surprising perhaps, is that this judgment also happens to be quite popular on the legal right. Indeed, from Chief Justice John Roberts to the late Robert Bork, many of modern America's top conservative legal thinkers have attacked Lochner and revealed their own broad intellectual harmonies with the New Deal forces that overturned it.

Why are these conservatives hostile to Lochner? Here's the answer supplied by Robert Bork. The problem with Lochner, Bork argued, is that it involved the judicial protection of an individual right—liberty of contract—that appears nowhere in the text of the Constitution. And as far as Bork was concerned, when "the Constitution does not speak," we are "all at the mercy of legislative majorities." The Supreme Court, Bork said, must respect the will of those majorities and defer to their legislative enactments.

Today's libertarians, by contrast, reject the Bork-New Deal approach. As the libertarians see it, the Constitution does protect unenumerated rights, as the language of the 9th Amendment makes evident. Furthermore, as the libertarians argue, once you take a careful look at the text and history of the 14th Amendment, including that amendment's origins in the free labor philosophy of the anti-slavery movement, it becomes equally evident that the concept of economic liberty has deep roots in the constitutional firmament.

For the past several decades, libertarians and conservatives have battled over these issues, with libertarians urging conservatives to rethink their longstanding embrace of Progressive and New Deal doctrines. Has the tide finally started to turn in the libertarians' favor? In a provocative new article forthcoming from the Cornell Law Review, George Washington University law professors Thomas Colby and Peter Smith argue that the answer to that question is yes. "We believe that conservatives are ready, once again, to embrace Lochner—although perhaps not in name—by recommitting to some form of robust judicial protection for economic rights."

Colby and Smith credit this conservative transformation to the influence of libertarian scholars, law professors, and writers (including me), whose legal and historical interpretations have slowly but surely taken hold within the broader ranks of the conservative legal movement. As they put it:

In the early 1980s conservative support for Lochner-like judicial protection for the freedom of contract was limited to a relatively small number of libertarian scholars who for the most part operated on the fringe of the conservative legal universe. In the last decade, however, a new wave of libertarian scholars—operating closer to the mainstream of conservative legal thought—has argued anew for a revival of Lochner's aggressive scrutiny for regulations that interfere with economic liberty.

Thanks to these libertarian efforts, the authors conclude, "the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing."

Are Colby and Smith right about that? Here's one good reason to think they are.

Back in the 1980s, the Pulitzer Prize-winning journalist and nationally syndicated columnist George Will was an outspoken proponent of Robert Bork's brand of judicial conservatism. More recently, however, Will has taken a different view of the matter. Contra Bork, Will now lambasts the "judicial abdication" of the New Deal period and calls for the revival of Lochner v. New York. "Conservatives clamoring for judicial restraint, meaning deference to legislatures," Will argued last year, "are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic."

That, in a nutshell, is the libertarian critique of both Robert Bork and the New Deal Court. That this critique is now being voiced by one of America's most influential conservative writers is a telling indication of the libertarian legal movement's growing stature.

For more on the clash of constitutional visions among libertarians, conservatives, and progressives, check out my new book on the subject, Overruled: The Long War for Control of the U.S. Supreme Court.

NEXT: Free-Range Kids Celebrates Leave Your Kids at the Park Day This Saturday

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  1. Today’s libertarians, by contrast, reject the Bork-New Deal approach. As the libertarians see it, the Constitution does protect unenumerated rights, as the language of the 9th Amendment makes evident.

    Close, but not quite right. First, libertarians in all times and places reject the doctrine advanced in the New Deal and defended by Bork. Second, only a fool thinks that the Constitution’s 9th Amendment actually protects unenumerated rights. The USSC seldom cites the 9th Amendment in its opinions and, when it does, it does so to uphold an unenumerated right or privilege that is viewed with favor by the ruling elite. There would be no war on drugs, for example, if the USSC had the scantest respect for the 9th Amendment. That goes for both the Court’s “liberals” as well as its “conservatives”. Bork was quite correct in saying that the 9th Amendment might as well be an ink blot for its usefulness in Court’s actual reasoning.

    If Rothbard was right about anything, he was correct when he wrote that, “The idea of a strictly limited constitutional State was a noble experiment that failed, even under the most favorable and propitious circumstances.” Written constitutions have proven woefully defective in binding the state’s reach of authority and its actions.

    Libertarian-leaning conservatives may find hope and comfort in the inefficacious words of the 9th Amendment. Genuine libertarians, not so much.

    1. Written constitutions have proven woefully defective in binding the state’s reach of authority and its actions.

      The only thing that binds the state’s reach of authority is self-restraint on the part of the rulers.

      1. The ghost of Gen. Cornwallis would beg to differ.

        1. The ghost of General Conrwallis is luaghing his arse off at the stupid rebels getting their comeuppance in a system far more intrusive and corrupt than what they overthrew.

          1. We are still ahead of the brits on personal liberty.

            1. Really? Its not as if one could not channel one’s inner Coach Corso and snap, “not so fast, my friend” and point to a myriad of measures that say otherwise.

              1. Maybe. The revelation from Wisconsin about the John Doe investigations may have tipped the scale. Still processing that.

                1. One measure of relative liberty is incarceration, would you not agree?

                  There is one country that spends more money on prison administration than any other. That same nation state leads in both absolute numbers of incarcerated and as a percentage of its population.

                  Another measure might be total public sector debt. I am sure that you would not object to this being one of the measuring sticks, right?

                  Yet another instrument of measurement might be unfunded public sector liabilities. Why wouldn’t this be an appropriate measurement?

                  How about the number of highway robberies perpetrated by cops each year? Isn’t that a good measurement?

            2. Can I play poker on the Internet? No, but Brits can.
              Can I open a foreign bank account? No, but Brits can.
              Am I taxed on income earned abroad? Yes, but Brits aren’t.

              I cannot think of anything that I want to do that is allowed in the US, but effectively prohibited by Her Majesty’s Government in Britain.

              1. Kalashnikov.

              2. I cannot think of anything that I want to do that is allowed in the US, but effectively prohibited by Her Majesty’s Government in Britain.

                Quoting Winston Churchill on Islam.
                Owning a TV without paying a fee to the government.
                Owning a firearm.
                Driving a car in the capital city.
                Singing a particular song at a football match.
                Fox hunting.

              3. Non-obscene adult porn.

      2. Yes. The primary defect in the US Constitution, and probably all such written documents, is that they rely on government defining and respecting its own limits.

        I believe that if the Constitution had provisions for ordinary citizens to have the ultimate veto of unconstitutional laws by dint of ordinary jury trials, that unconstitutional laws were voided in their entirety, and that politicians violating the constitution were held accountable in real ways, it might have lasted longer than it did. But the judicial interpretation we have now has made a mockery of what was originally written down.

        1. Separation of powers has given way to deference.

          1. Separation of powers is incapable of limiting government. All it does is unite the three different camps trying to increase their own power at the expense of those who hate government.

            A single unpopular and detestable person or group can be limited by public opinion because they may come to believe the hatred of them has reason. But three such groups come to see each other as similarly unjustly maligned, and unite to beat back the unfair hatred.

            1. While I don’t think separation of powers is in any way perfect, if it was “incapable” of limiting government I don’t understand why statists found it so necessary to consistently erode that system of separation (death of federalism, 17th Amendment, etc.).

              1. That’s my point. Statists by definition want to increase State power, and the Constitution did not prevent that. Whether citizens being able to void unconstitutional laws would prevent that, I do not know, but it would at least be better than leaving government to define its own limits.

                1. I believe The Constitution “did” prevent it with the check and balance of the Senate. The 17th Amendment was its destruction.

                  The Senate being responsible to the States was an intended sabotage to the growth of the federal government provided by the founders, as well as a hedge against democracy. The States owned the senate so the people’s house and the States’ house had to agree before anything got done. The consequence? Very little got “done”, other than what they were supposed to do, in most cases. Then along comes the 17th and does away with most of the States’ rights and allows an easy consensus to get things “done,” just as the people want. It’s all democratic! Ain’t that great? No more appointments by the Governors or elections from the States’ senate. Don’t ya feel all arm and fuzzy inside now?

                  Democracies suck. Always have, and always will. Check and balance….gone. Buuuuut that’s just lil ole me.

                  1. Thank you, I hadn’t looked at the 17th that way before.

                  2. Amen, this was the beginning of the hundred year war. It is precisely what allowed the “progressive” era to begin.

                  3. No, I think the 17th amendment has had hardly any consequences significant today. Most of the states had already enacted, or were on their way to enacting, popular election of their US senators. I doubt that any states today would have appointed US senators, and even if the US Constitution were amended now to prohibit popular election of US senators, I don’t think that’d change anything in terms of policy.

        2. There aren’t a lot of alternatives. You put together a Constitution, and after that, you are stuck with the government you have.

          What is the alternative? Anarchy?

      3. “Woelfully defective” in comparison to what alternatives?

    2. One bit of delicious irony is that what one might have found “in Robert Bork’s America” is pretty much what we did find in Ted Kenedy’s America.

      You are right about the reality of the 9th Amendment. Then again, the idea that there ever could be a truly limited constitutional state is for those who want to be deluded.

      1. “Ted Ken[n]edy’s America”???

    3. I’m pretty libertarians (if I were to stereotype as a group) believe everything NOT restricted in the constitution is allowable- with the states able to make other laws as long as they don’t contradict the constitution. Right?

      So, why would one need to reference any amendments?

      1. There is a strong view among many libertarians that the constitution is not a rights-granting document. The constitution is also mute on certain fundamental rights, such as the right to breathe air, which are considered so fundamental as to not need enumeration.

        1. Read the Bill of Rights. It doesn’t grant rights. It recognizes them. Big difference.

          1. Thanks. You stated that far better than I did.

      2. No. The constitution is and was a ceding of certain civil powers possessed by sovereign states to an independent, central government. But the People always retained rights untouchable by any sovereign power. Several of these rights were expressly listed in the Bill of Rights, and the other, “unenumerated rights” were recognized by the 9th amendment.

    4. only a fool thinks that the Constitution’s 9th Amendment actually protects unenumerated rights

      In practice, you are right. But it provides a legal foundation on which one could argue for the protection of unenumerated rights. That’s not nothing, but it does require people who will take up that banner and act. That’s what we are missing.

      The idea of a strictly limited constitutional State was a noble experiment that failed

      Yes, if you are completely incapable of seeing shades of gray. But do you think the right to bear arms, or the right to speak freely, or freedom of religion, or other such things would have lasted as long as they have without Constitutional protection? That is not to say they have remained as sacrosanct as you and I would like, but one needs only look to other supposedly liberal democracies to see how bad it could be.

      The U.S. Constitution has at least slowed the erosion of liberty. Ultimately, a piece of paper is only as worthwhile as the people who are willing to defend the ideals to which it gives voice. But the Constitution has been an inspiration to various people to do just that. It’s not worthless or an abject failure.

      1. Its aspirational properties are not to be dismissed and on some occasions liberty has prevailed, in part, due to the inspiration those involved in the particular fray drew from the document.

        But we should never delude ourselves about the nature and circumstances of its conception, including the objectives of its most enthusiastic supporters, and we should never forget that the ink was scarcely dry on the parchment when those who resisted the confiscation of their property by government goons were ruthless murdered and speech critical of those in power was criminalized.

        We should also never forget that the constitution did not stop the likes of Lincoln from engaging in mass murder. We should remember the words of Lysander Spooner:

        “It is no exaggeration, but a literal truth, to say that, by the Constitution – NOT AS I INTERPRET IT, BUT AS IT IS INTERPRETED BY THOSE WHO PRETEND TO ADMINISTER IT – the properties, liberties and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be ‘questioned’ as to any disposal they make of them.”

      2. “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

    5. The trouble w relying on the 9th amendment is that you then have to figure out whether a certain right pre-existed the US Constitution or not. I don’t know if research to determine whether any such rights contradicting any major features of narcotics prohib’n existed. Much easier to just point out that the power to regulate commerce among the states has been stretched beyond recognition, as concerns the federal war on drugs.

      But narcotics prohib’n has always been primarily a state (& sometimes local) affair, resting on an unstated “police power” that states have to legislate re health, safety, & morals. To undercut that at the federal level you’d have to use the 14th amendment, but then you’ve got the same problem of establishing rights that existed at that time that contradict narcotics laws.

      Since legal rights are practically always based on legal precedents, that’s tough to do. When it came to birth control, instead of relying much on precedents, the federal judges used the ultimately silly reasoning that since people make all law (including the constitutions of the USA & each state), & people exist only because of procreation, procreation must underly all law, & therefore people’s choices w.r.t. having babies must be a right they have.

      1. Besides, does anyone think that a people who enacted the 18th amendment would’ve failed to add recreational narcotics to the prohib’n of liquor, had they thought at the time such an amendment to be necessary? Or that if today the sale or use of narcotics was found by the judiciary to be an unenumerated right at the federal level, they would fail to rapidly amend the Constitution to abolish that right?

  2. or an armed populace

  3. That this critique is now being voiced by one of America’s most influential conservative writers is a telling indication of the libertarian legal movement’s growing stature.

    Yeah no. George Will hasn’t been influential since the 20th century.

    1. None-the-less, he remains interesting and thought provoking. And IMHO, he expresses his arguments eloquently.

  4. “This case is decided upon a theory which a large part of the country does not entertain. if it was a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinion in law.”

    Lochner v. New York, 198 US 45, 75 (1905) (Holmes, J., dissenting)

    “But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.”

    Lochner, 198 US at 75 (Holmes, J., dissenting).

  5. this is going to be one of those tough situations where the religious conservatives wind up supporting the right thing for reasons many find repugnant.

    it will boil down to defending the rights of the religious not to preside over a gay wedding or make them a cake.

    while i absolutely support that right to free association and contract, the fact that so many will not like the way the right is exercised in this particular case is going to make this fight a lot nastier and more sensationalized. defending free speech by support the right to speak against government policy is one thing, but doing so in defense of white power demagogues is another. sure, it’s the exact same principle, but trying to use the latter will turn many people off just as a function of the subject matter.

    the right to not serve a gay wedding is unfortunate test case and will make the battle more of an uphill struggle than it might need to be, but, such is life.

    1. Particularly if they only allow freedom of association on religious grounds.

      1. Which implies “approved” religions as obamacare demonstrated

        1. Not approved so much as judged sincere.

  6. The problem with Lochner, Bork argued, is that it involved the judicial protection of an individual right?liberty of contract?that appears nowhere in the text of the Constitution.
    .
    Rights are created and granted solely by the government. Fuck you, Bork.

    1. How about a fuck you to Holmes?

    2. The Constitution contains a “contracts” clause in Article 1 Section 10.

  7. That’s not nothing, but it does require people who will take up that banner and act.
    .
    No such person will ever be confirmed by the Senate. It’s Fuck Yous all the way down.

  8. “Lochner involves the protection of freedom of contract, which appears nowhere in the consitution.”

    Serious question, has the ninth amendment ever been used in the SC to protect rights?

    1. Yes, see Justice Goldberg’s concurring opinion in Griswold v. Connecticut, 381 US 479, 486-499 (1965).

  9. http://www.kansascity.com/news…..22708.html

    David Koch says that Scott Walker should be the Republican nominee, but stops short of a formal endorsement. Interesting.

    1. I aint votin for no Prohibitionist. No matter what Koch says.

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  11. What a bunch of killjoys!

    Yes, the progressives and statists are all entrenched and will not give up without a fight, but at least for a moment, here is someone to offer a bit of hope that each of us libertarians are not alone.

    5 minutes peace, please, before we go back to the battle!

  12. So libertarians are capable of influencing conservatives. Maybe they should try a little harder to convince us in other areas, rather than alienating us through constant mockery, calling us “bigots” for merely declining to cater same-sex weddings, gratuitously belittling religion, etc.

    We’re the best allies libertarians can hope for.

    1. As one who leans libertarian I am for freedom of association and am all for your right to not cater a gay wedding. I also will push back when you try to keep people from exercizing their freedom of association (gay people who want to marry). It’s pretty simple really.

      1. Conservatives are not attacking same-sex couples’ freedom of association. They can associate all they like. There’s no reason for the government to be involved (by recognizing their relationships as marriages).

    2. Maybe you shouldn’t paint with such a broad brush and you won’t get painted in turn.

    3. Well I’m waiting for cons to give up on Prohibition. And another thing. Cons are dying out. The “best hope” is on its death bed. I’ll pass. There are the libertarian kids coming up. I raised 4 myself.

      1. There are the libertarian kids coming up.

        Uh, huh. When you make headway in Detroit you can text me.

      2. Cons are always dying out. Conservatism skews old.

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  14. Conservatives are not attacking same-sex couples’ freedom of association. They can associate all they like. There’s no reason for the government to be involved (by recognizing their relationships as marriages).

    1. The above is a duplicate post, due to technical difficulties. My apologies.

    2. I’m waiting for cons to champion the end of Prohibition.

      Duplicate. Intentional.

      1. If by “end prohibition,” you mean legalize drugs, then I will offer myself as an example of a far-right-wing Bible thumper who wants to legale all of them. And prostitution, as well.

        But most of my fellows will not come around to this idea, so long as the only political factions arguing for drug-legalization are also belittling conservatives for their views on social matters. Not that libertarians shouldn’t argue for their point of view on those things. It just makes no sense for them to go out of their way to alienate conservatives, while doing so. It’s a matter of attitude, I suppose.

    3. “There’s no reason for the government to be involved”

      Wait!

      That’s been my position all along. Only, it seems to equally offend everyone. Except me. 🙂

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  16. It’s not that conservatives have absorbed Welfaristic ideas from ‘liberals’ or ‘the Left’. Quite the contrary: modern liberalism goes back to Bismarck, where the lower orders are quiesced by payoffs so that the ruling class can get on with wars, imperialism, secret police, and all the other things they love. And these were taken from the classical conservative idea that the polity is an organism rather than (as the classical liberals believed) a machine. An organism must take some care of all its parts, and cannot easily adjust to having them removed or changed in form. Hence things as they are must be conserved. Hence conservatism. The lower orders are taken care of by soft cop (Welfare) and hard cop (close surveillance and police repression), and established authority, which is what the Right is about, is preserved.

    It will be interesting to see whether libertarian ideas penetrate the Republican Party (or the other conservative party, for that matter). At the moment, the only Left left are obviously anarchists.

    1. At the moment, the only Left left are obviously anarchists.

      You mean the ones that support the welfare state?

      1. As I just explained, the Welfare state is not a leftist thing, unless you think Bismarck was a leftist.

  17. I am sorry but the changing views of George Will, whose primary drive is to remain on the cocktail circuit, does not a movement make.

  18. Applause for Damon, again.

    But who explains the 9th Amendment to the Ron and Rand Paul cultists? The make-believe libertarians who align with southern racists as (cough, cough) “constitutional conservatives?”

  19. I think the article is right. I’m a Conservative who long ago left the Libertarian party, for its wrong-headedness on foreign policy – a reactive isolationism that Libertarian philosophy does not require.

    But… the influence of Libertarians is a good check on conservatism, and serves to keep it from drifting too far away from where it belongs.

  20. It is hard to deny a kalidescope of shadows and penumbras for economic freedoms once you accept and endorse such for perversions. Let 50 shades of gray let 100 flowers bloom

  21. Beware this phenomenon: “We believe that conservatives are ready, once again, to embrace Lochner?although perhaps not in name?by recommitting to some form of robust judicial protection for economic rights.” They may not want to name it and go all the way with the concept, but their children will, because that is the most consistent position. The myriad contradictions involved with opposing the left/Democrats, yet agreeing that government can override individual rights for the public good, are not sustainable over the long-term. Freedom will eventually win.

  22. Seems to me a “right of contract” is part of a “right to freely assemble”. And THAT right is protected specifically. Further, NOWHERE are FedGov given ANY authority to determine financial regulations over any part of this country.. not at state or federal level. FedGov ARe assigned the task of setting monetary values and foreign exchange….. weights and measures, make sure interstate trade is unhindered by state or local regulation, and apply tariffs equally across the nation. Beyond that, they have NO financial or economic authority. Certainly none in regards banking, credit, financial instruments, etc.

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