Antonin Scalia

Libertarians, Conservatives, and 'Useful Idiots for Progressive Statists'

A reply to National Review's Ed Whelan.

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Last week the conservative legal pundit Ed Whelan dismissed the libertarian legal movement as a bunch of "useful idiots for progressive statists." In response, I pointed out that if you examine the record, you will find that it is conservatives like Whelan who routinely peddle legal ideas that were first invented or popularized by actual progressive statists during the Progressive and New Deal periods.

Whelan now writes back to say that I missed his point. So what is his point? His point is that libertarians "ought to prefer judicial conservatives to judicial progressives." In fact, he declares, libertarians should stop "misdirecting their ire" at conservatives, since conservatives are the "natural allies" of libertarians. According to Whelan, when libertarians attack conservatives "they provide significant de facto support for progressive judicial activism. This is what makes them useful idiots for the Left."

I agree with Whelan to a limited degree. Libertarians and conservatives have joined forces on a number of important legal campaigns over the past few decades and will continue to do so in the years to come. A libertarian-conservative legal alliance exists and it has undoubtedly produced some good results. But none of that means that conservatives should be shielded from criticism when they're wrong.

Predictably, Whelan tries to frame our underlying disagreement as a contest between the "principled originalism" of conservatives and the "unprincipled judicial activism" of libertarians. But that self-serving description is undermined by reality. In reality, conservative "originalists" have been all too eager to set aside their principles when those principles threaten to produce "libertarian" results that they don't like.

For example, conservative legal icon Robert Bork famously insisted that the 9th Amendment should not be read to protect unenumerated rights—even though that is precisely what the 9th Amendment says that it does. By contrast, the libertarian legal scholar Randy Barnett has provided a definitive originalist account of the 9th Amendment that thoroughly dismantles Bork's ahistorical position.

Wikimedia

Along similar lines, when the libertarian lawyer Alan Gura provided the Supreme Court with overwhelming historical evidence about the original meaning of the 14th Amendment's Privileges or Immunities Clause in the 2010 case McDonald v. Chicago, it was conservative "originalist" Antonin Scalia who lashed out most aggressively at Gura. In fact, Justice Scalia set aside all pretense of being an originalist in that case and said that the Court should ignore Gura's evidence and simply "acquiesce" in the doctrine of substantive due process, a doctrine that conservative originalists claim to hate and that Scalia himself admitted to be "wrong." Likewise, in the 2005 medical marijuana case Gonzales v. Raich, "originalist" Scalia voted in support of the New Deal Supreme Court's sweeping interpretation of federal power under the Commerce Clause.

These are just a few of the reasons why libertarians tend to criticize their ostensible allies in the conservative legal movement. Whelan calls such criticism "misguided." I call it a necessary and proper means for holding conservatives accountable to the constitutional principles they claim to hold.

Related: "Conservatives v. Libertarians: The debate over judicial activism divides former allies"

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  1. So, 90% of his “argument” is, “Libertarians like gay rights, Obergefell Obergefell Obergefell.” Well, I’m convinced!

    1. That, and the fact that if the Court can pull of an Obergefell, they can do anything they want. No sense of judicial self-restraint will prevent them, and no form of originalism, whether libertarian originalism or otherwise, will stop them.

      Now, it would be one thing if libertarians endorsed living-constitutionalism, “just this one time man,” in order to obtain a victory for liberty. But Obergefell, as is now obvious, has nothing to do with liberty, and everything to do with placing the government’s seal of approval on relationships which progressives and some libertarians deem cool. And the Solicitor General of the United States acknowledged that this could lead to federal interference in the conduct codes of private universities. Not to mention the cake-wanters.

      So Cato and Reason and the rest have lost their souls, but haven’t even gained the world in exchange. They got a booby prize instead – a liberty-impairing decision whose implications they will (presumably) deplore.

      And that’s why the term “useful idiot” seems applicable – they’re encouraging progressive living constitutionalism, but without any gain in liberty.

      1. And in what ways, specifically, did libertarians “encourage progressive living constitutionalism”? By arguing for equal protection, or in some other way?

        1. The Cato Institute filed an amicus brief in Obergefell saying that the state and federal governments are constitutionally required to recognize same-sex unions.

          And we all see the wonderful libertarian results *that* produced!

          No, it’s progressive statists who benefit from the government recognizing “gay marriage,” and so libertarians like Cato are useful idiots.

          1. How useful are they really, though? Do you really think that the Cato brief made any difference to the outcome?

            I think that the point is that even if many libertarians support something like the outcome of the case, that doesn’t mean that they support the reasoning that got the court there or that they had any effect on the outcome.
            For example I think that the outcome of requiring gay marriage in every state is right, but the reasoning that it is a fundamental right is wrong. It’s an equal protection thing. If states wanted to stop recognizing/licensing marriages as a special class of contracts altogether, that would be fine. But the court didn’t bother to ask me.

          2. “The Cato Institute filed an amicus brief in Obergefell saying that the state and federal governments are constitutionally required to recognize same-sex unions.”

            Because equal protection?

            I am not following.

            Granted, I don’t know the details of this case all that well. Please explain why this case will lead to a loss in liberty and/or unconstitutional rulings in the future.

            1. “Please explain why this case will lead to a loss in liberty and/or unconstitutional rulings in the future.”

              I will allow the Solicitor General of the United States to explain it, as he did in the oral arguments in Obergefell.

              As the SG pointed out, once the states have to approve “gay marriage,” then private Christian colleges which restrict extramarital sex by their students will be in trouble – because their opposite-sex definition of marriage will be contrary to public policy, and under the *Bob Jones* precedent they could lose their tax exemption for violating public policy.

              And there’s the cake thing, and the tourist company thing, and the T-shirt thing…shall I go on?

              1. Oh, and let’s not get started on the implications of having the state define the terms of a pre-state institution. So much for marriage having an existence independent of the state.

                1. My apologies for taking so long to respond. It is a busy day.

                  I think this is a non sequitur. I am not saying that you are arguing one, what you point out is what is actually happening. I am saying that those arguing that a cake seller must participate in a gay wedding does not follow from the state being required to offer equal protection. It is no justification for violating right of association or freedom of religion.

                  As for Universities, the sooner their federal funding is pulled, the better. They got in bed with the devil and we all know what happens after that.

                  “Oh, and let’s not get started on the implications of having the state define the terms of a pre-state institution. So much for marriage having an existence independent of the state.”

                  This was already the case.

                  1. The ideal situation is to let people freely contract with whomever they choose under the terms they choose and have the state simply enforce those contracts. Aside from requiring every contract to have an ‘out’ for both parties ( I forget the legal term) I don’t see that it is any of their business to dictate who may enter and under what terms. Personally I have never recognized their claim to have that power and my life worked out pretty damn well. So well in fact that I have never been involved in a lawsuit save my first divorce. If I told you how amicable that divorce was and how well things worked out I would probably be called a liar.

                    Somewhat difficult to argue this right now. I have been out in 100 degree heat busting my ass.

                    1. Then be sure to have plenty of water.

                      I believe I mentioned this before, but the point of having laws re marriage and the like is in case the parties don’t or can’t work out things out for themselves.

                      And to say that all private colleges should be taxed anyway doesn’t meet my objection that the feds shouldn’t *punish* a college simply for defining marriage in an opposite-sex manner. That would as bad as allowing a tax break only to colleges run by Democrats.

                      As for saying the state is *already* in the marriage-defining business, I admit this – or at least I admit the state *claims* the right to define marriage. Eg, by redefining how long a marriage lasts. But I don’t accept these precedents and can’t wait to get rid of them.

              2. So, your argument is “We can’t have same-sex marriage because if that happens Bob Jones University could lose it’s tax exempt status.”

                Color me unconvinced.

                1. Unconvinced of what?

                  Unconvinced of what the Solicitor General *admitted* at oral argument?

                  “Justice Samuel Alito followed up and asked a pointed question regarding whether religious schools could have their tax-exempt status revoked for not providing same-sex couples with housing. Alito referenced the 1983 Bob Jones University Supreme Court case, which ruled that the Internal Revenue Service could revoke the school’s tax-exempt status for refusing to accommodate interracial married couples with housing.

                  “”So would the same apply to a university or a college if it opposed same?-sex marriage?” Alito asked….

                  “”You know, I don’t think I can answer that question without knowing more specifics but it’s certainly going to be an issue,” [Solicitor General] Verrilli stated. “I ?? I don’t deny that. I don’t deny that, Justice Alito. It is, it is going to be an issue.””

                  http://www.christianpost.com/n…..ts-138417/

                  Or you admit it’s an issue, but you don’t care because you don’t believe in a Sky Daddy?

                  1. I’m unconvinced that Bob Jones University losing it’s tax exempt status is a good reason to oppose same-sex marriage.

                    1. Yeah, who gives a shit about the freedom of icky people anyway.

                    2. You mean like the freedom to marry?

                    3. The freedom to get a tax exemption (special privilege) overrides the freedom to marry anyone of your choosing? Really?

                    4. +1. Not that I want to get started on prioritizing which rights are better, but in this case it seems clear. A Christian University can still freely associate. Hey, they may even take the tact of accepting gays without approving! Hate the sin and what not. But now, a gay couple can actually be afforded contracts that stand up to admittedly shitty laws. This is a clear equal protection case. You may argue that Christian colleges aren’t being equally protected, but hey, when it comes to receiving government largess, no one is equally protected.

          3. The serious response to the situation would be to remove the gov from marriage. That is the overwhelming Libertarian response that I see on most articles about the subject.

            1. From the comments, reason has written multiple pieces opposing that.

        2. When you demand ewual protection for things which are not equal, you are getting into the realm of positive rights. That the courts now claim that homosexuals must be included in marriage, but that makes irrational any interest the state has in marriage as a societal institution.

          1. that makes irrational any interest the state has in marriage as a societal institution.

            How so? If the state has an interest in marriage as a social institution, then I’d say it has to do with raising children. Which is something that gay couples do quite a bit these days. Unless you are proposing to ban infertile straight people from getting married, i think the governmental interest is just the same.
            Of course I don’t think it’s any of the government’s business how people make and raise children.

          2. But that makes irrational any interest the state has in marriage as a societal institution.

            The state has no authority at all in “societal institutions.” Even if it did, the state has no power to deny or disparage fundamental rights (aka unalienable rights).

  2. According to Whelan, when libertarians attack conservatives “they provide significant de facto support for progressive judicial activism. This is what makes them useful idiots for the Left.

    Thanks to libertarians, queers can get married and burn churches to ground while urinating on the Constitution.

    1. I was drunk that weekend and all 3 of those things were accidents.

      1. It never happened, it wasn’t my fault, and anyway it isn’t illegal.

        1. Admit nothing, deny everything, demand to see the video proof.

          1. It was Warty, it was Warty, it was Warty.

    2. when libertarians attack conservatives “they provide significant de facto support for progressive judicial activism. This is what makes them useful idiots for the Left.”
      .
      Funny, I would think imposing wage and price controls as Nixon did, increasing government revenues as Reagan did, reneging on “read my lips” as one Bush did, coming up with ideas like No Child Left Behind and Medicare Part D as another Bush did, not to mention such shining lights of conservatism as McCain/Feingold and RomneyCare, not to mention just look at where half-a-century of fighting Big Government has gotten us, would seem to indicate the “useful idiots for the Left” might be somewhere other than in the party that’s never been anywhere near the levers of power. Maybe Whelan should try looking for his useful idiots in the Stupid Party. Hmmm….wait a second, just why is it the GOP is referred to as ‘The Stupid Party’?

      1. The only ‘conservative’ in that mix was Reagan. Every other person mentioned has been decried by conservatives as being non-conservative, RINO or any of a number of terms used to describe the GOP establishment.

        1. And the Dems forced his hand on spending (they controlled the House the entire 8 years, and the Senate for some of his time). He wanted defense spending, but also cutting tax rates. They would only give him some of it if they raised social spending. And there was that little thing called the Soviet Union.

  3. The fundamental difference between judicial libertarians and judicial conservatives is whether states should be granted deference to pass laws that harass, annoy, discriminate or obstruct their own residents. Conservatives think that the federal judiciary should be limited in its power to invalidate laws, but that states should have expansive powers (“states’ rights” so called). Libertarians think that the federal judiciary must be empowered to protect people from encroachments by the states (“individual rights”).

    On what basis can states’ rights be less statist than individual rights? Libertarians want to strike down state laws and conservatives want to preserve state laws. It’s disingenuous to pretend that judicial conservatism is in any way the less statist option. It’s explicitly more statist.

    1. Technically, libertarian theory doesn’t explicitly endorse federalism, which is what “states’ rights” is entirely about. You could have a wholly centralized night watchman state in theory, however impermanent or impractical that might be. Libertarian theory does however implicitly endorse federalism and small political units since such institutions decentralize political authority and limit government power.

      1. And we have a constitution. “States rights” is what Orval Faubus claimed in 1957, when he used an armed militia to block. the registration of 9 black kids at Little Rock’s Central High School, a seminal event in the civil rights movement.

        “State rights” — then and now — is an attempt to overrule “unelected judges,” by claiming we have no rights guaranteed by the constitution and are, essentially, defenseless against state governments.

        If you lose on marriage equality at the federal level, then say states should decide. But if you can get away with it at the federal level, then it’s the opposite. As promoted by the Paulista Cult,

  4. There are two evils and libertarians have to pick one to ally with and one to fight against. Once you pick your side, tow the lion or be branded a treasonous dog.

    1. tow the lion or be branded a treasonous dog.

      Too soon man, too soon.

      1. Tow, the lion, disagrees.

        1. Tow, the beloved lion you mean.

      2. Nah. That other lion in the news was too late. “tow the lion” was a thing long before anyone knew who Cecil the lion was.

        1. Pretend I said “tow the Cecil” then.

  5. STFU, Ed Whelan explained.

  6. libertarian legal scholar Randy Barnett has provided a definitive originalist account of the 9th Amendment that thoroughly dismantles Bork’s historical position.

    Who tells Ron/Rand Paul about the 9th Amendment? And the 14th?
    And all the other phony constitutionalits?

    1. The thread has been contaminated! Burn it! Burn it down!

      1. Nuke it from orbit. It’s the only way to be sure.

        contaminated! contamhihnated

        FTFY

    2. Oh, look, our village idiot is back.

      1. Swallow the cyanide pill! DO IT!

        1. Go on! Kill me! Do it!

          1. Looks like that space creature fgured out your improvised all natural trap and is going around it dude!

    3. HIHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHN

      1. The sound of Warty lifting the Freedom Tower

    4. What if this is just Agile Cyborg when he’s sober?

      1. This is your brain not on drugs. Any questions?

    5. We’ve been Hihnvaded!!11!!!!!

    6. Oh, you show up for this, but completely ignore Mike M going all ‘Block Yomamma’ on us and embarrassing (l)ibertarians. Or is it (L)ibertarians?

      1. small l – that crap embarrasses the whole tent

    7. Being relatively credible as statesmen makes them phony constitutionalists? I suppose you’ve substantive cause to believe that?

      1. Being relatively credible as statesmen makes them phony constitutionalists?

        Self serving alibi. I specified “9th Amendment”

        I suppose you’ve substantive cause to believe that?

        Over a thousand versions of, “All powers not enumerated to the federal government are reserved to the states.” Which is bullshit.

        The 9th Amendment, as noted here, reserves unenumerated RIGHTS to ONLY the people. Rights trump powers in a government of delegated powers. The phony constitutionalists claim states have powers which have NEVER been delegated , blatantly statist.

        And the 14th Amendment EXPLICITLY denies states any power in marriage equality and abortion (among others)

        Ron says “rogue judges” overturned DOMA. Ummm, they overturned a federal veto power over states. Ron tried to deny homosexuals any right to challenge the constitutionality of DOMA ? a statist abuse equal to slavery and the internment camps.

        With Rand, they’re for state sovereignty except when they aren’t . They’ve both tried to use federal power over states. That’s state’s rights as practiced by the KKK and southern racists. Denying any constitutional challenge to state action. except when they do the opposite.

        Most obviously, when Ron says “marriage” is nowhere in the Constitution, that means NO level of government has been delegated any power over marriage. Self-evident?

    8. More importantly, what’s your stance on the what should be considered barbecue? The purity sensitive amongst us need to know.

      1. Meat drenched in sauce then heated on a gas grill =/= barbecue. That is all.

        1. That’s just grilling at a gathering deemed a barbecue. Come on man, have some standards.

        2. I concur. I had no idea what “barbeque” actually was until I lived South of the Mason Dixon line. And accidentally ate some because it was the only food around.
          It was a revelation, I tell you.

        3. I did mention anti-constitutionalists who deny the 9th Amendment. Quite a few of them here today. As always, a few are also cyber-bullies launching aggression.
          Typical of those who seek state power to impose their views by force.

  7. Why do the Conservatives hate liberty?

    1. Freedom’s just another word for “no traditional values left to lose,” Francisco.

      1. A Conservative Manifesto:

        I’m sick of this panzy ass society. If sick of every time I watch television I see homosexuals on every show like it’s common in our society it’s not.

        I’m sick of men letting woman be more manly in their households. A mans role is to be the provider and protector. Women are not supposed to be bread winners. They’re supposed to raise the children cook the meals and clean the house. My wife does it and is proud. Our daughter is a staight a student with an amazing personally. That’s because she has a proper family. Our schools aren’t fucked because of common core our schools are fucked because the roles of our family members are fucked.

        I’m sick of blacks crying about being mistreated by the police. The new law should be run or run your mouth get shot. Everyone of these idiots got shot because they didn’t do what they were told. It aint like the cops were trying to get their dicks sucked. Do what you’re fucking told. Why do we have all these black scholarships and grants for blacks? What the fuck makes them special. They should thank the slave owners for bringing their ansestors here or they’d still be in Africa and they wouldn’t even know what welfare is.

        1. I’m sick of the illegals illegally doing our jobs. Why is that the only crime people are caught doing everyday where they don’t get arrested? Really how do you count them and not arrest and deport them after they spend a year in jail for breaking the law. They’re trespassing in our country. They take money out of our economy commit too many crimes to count and there’s still people who want them here. That’s the definition of stupid. They’re ALL criminals they became criminals the second they illegally entered our country. It’s no different then me climbing your fence and sitting on your patio using your bbq without permission.

          I’m sick of China being allowed to import all their cheap shit here without paying tariffs. They’re getting rich building an army that will soon make ours look pathetic and they’re the number one reason labor participation is the lowest it’s been in this country since the 1950s.

          1. I’m sick of the oil companies fucking us as much as possible while making our enimies richer then us. We have the technology to never need oil again. Why normal people fight against that blows my mind.

            The biggest thing I’m sick of is people being fucking drones. Wake up and realize republicans and democrats are exacltly the same. Our governments job isn’t about black rights, womans issues, gay marriage or any of the other stupid shit they use to distract you so you don’t notice how bad they’re fucking us. Keep believing your side will be better then the other while you hold your ankles. Big business runs this country. Period. You and me have no say whatsoever. Keep believing corporations deserve tax breaks because they provide all the low paying 29 hour a week jobs. Keep believing Democrats care about the little man. I see that Obama guy really putting the money back in the middle class. Lol.. he’s done a great job of making the rich richer though evidenced by the stock market. Do you get it? Keep believing tax breaks for the rich will help you. While you keep believing that they’ll keep taking as much money, opportunity,and freedom from you as they can.

            1. RBS, link to the above?

            2. Do you get chilly in your mom’s basement?

              1. You realize that was in quotes right?

                1. Still, that’s a LOTTA typin’, dude. Mom’s basement has snacks, amirite?

            3. Way to completely skew the right’s position. You are the king of straw men! Conservatives don’t believe women have to stay in the home. It is the Left that has tried to ridicule those families who make that decision. And to be honest, the visibility gays have in Hollywood and Broadway and the rest of the fame driven world is way beyond the numbers of actual gays in the population (NTTAWW!)

              Oil companies? Cons have a problem with paying Saudi Arabia for oil, which is why most of them (us?) are for more energy production here! Shale, fracking drilling in remote parts of Alaska, etc.

              There is some truth to the police thing. But as far as blacks go, how about true equal protection, not racial quotas, race norming etc.

              The whole last paragraph sounds more like Bernie Sanders than any Republican running.

              1. “Romney, er, Sanders, er Clinton, er HUCKABEE WOULD BE WORSE!”

                What difference, at this point, does it make? They ALL suck. We’re doomed. Enjoy the ride over the cliff. Please keep your arms and legs inside the car – for the children.

              2. That is apparently what some moron sincerely believes. I don’t think you get to speak for conservatives in general any more than he does.

            4. Not sure if serious or not. I mean, there’s some kernels of truth buried in the whole pile of bigoted shit, but come on.

          2. I’m sick of China being allowed to import all their cheap shit here without paying tariffs. They’re getting rich building an army that will soon make ours look pathetic and they’re the number one reason labor participation is the lowest it’s been in this country since the 1950s.

            I think this is my favorite part.

        2. What the fuck is this shit?

          1. Outlaws… It used to be a great resource for geared powerlifting and other gear info. Now it’s mostly a bunch of old guys bitching about the world.

            1. Holy. Shit.

            2. Do you even lift, bro?!

              Seriously, are you into powerlifting? I haven’t competed yet, but I do train. Only raw though.

            3. Looking for a used squat suit for my wife
              Posted on 8/2/2015 at 10:12:44 PM by Brad

              The possible responses available for such a post makes my head dizzy with delight.

            4. I’m not even going to ask what “geared powerlifting” is. Although it does seem to turn your brain into mush.

              1. It’s a game where fat guys squeeze themselves into specially-designed tight suits that let them lift more weight by storing energy as the suits stretch. I don’t get it either.

  8. Spot the Not: less famous 2016 Democratic candidates

    1. Spent 30 years as a vagabond; his many jobs included mime, clown, lion tamer, medical experiment volunteer, rodeo clown, tattoo artist, steveadore, and door-to-door salesman. He pledges to restart the Civilian Conservation Corps to help unemployed young people.

    2. Fairly mundane liberal politics with a few conservative leanings, he believes that the NSA is bugging his phone and trying to poison him in an effort to cover up the truth about 9/11.

    3. Deeply concerned about environmental disaster, he looks to the construction of arcologies for shelter from the coming chaos.

    4. He is a classic rags-to-riches American success story. The poor Louisiana boy who fled conditions he considered to be virtual slavery and once worked as a janitor for $2 an hour eventually came to own the stores he used to mop.

    5. He believes the middle class has been disenfranchised in modern America, and feels it’s important to rectify that by lowering or eliminating taxes on the less fortunate.

    6. This retired USAF member and father of nine definitely brings something different to the table. He is in his eighth consecutive run for the Presidency, which he entered because he was “commanded of the Lord to enter the race to become President of the United States of America”.

    1. He is… the least electable man in America.

    2. Both 4 and 5 do not sound like a proggie Dem, so I’m gonna guess 5.

    3. It’s a trick question! These are all “true life stories” Joe Biden has used at one time or another. (And you left out the one where he was found in a burlap sack down by the creek by Princess Wilhelmina and subsequently raised as a scullery maid.)

    4. Which party is Vermin Supreme running for this time?

    5. 1 is the Not. I wrote it based on what I think The Most Interesting Man in the World would have on his reh-zoomy. The rest are here: http://2016.democratic-candidates.org/

    6. Got anything on Emperor Caesar, who comes up 1st in FEC filings for 2016 prez as Democrats?

  9. Spot the Not: less famous 2016 GOP presidential candidates

    1. This man is a dauntlessly religious man and a rock-solid conservative, advocating alcohol prohibition and the criminalization of homosexuality, among other right-wing positions.

    2. He has a number of right-leaning ideas, including a 100% porn tax. He also favors “mandatory expungement”: Six months after being convicted of a serious crime, your record is wiped clean. Even minor offenses would be forgotten after 3 months.

    3. An eccentric fellow who enjoys coming up with some very creative inventions, he is running for the GOP nomination in 2016. He has a very dim view of terrorists and drug traffickers ? in fact, he wants to deploy weapons to fry them from orbit.

    4. He is a diverse candidate who probably has at least one opinion to please anyone. Few politicians are able to satisfy both a pro-legalization marijuana advocate and a staunch pro-lifer. Of course, this also means most would object to a majority of his platform.

    5. A strong conservative with an extremely dim view of large banks, he calls the integrity of mainstream politicians into question and accuses them of catering to monied special interests. He strongly believes a President should serve only a single term.

    6. A self-made millionaire known as The Dildo King, he calls for public executions of terrorists and corrupt government officials.

    1. 3. That sounds like Dr. Evil.

      1. Meet GOP candidate Michael Bickelmeyer:

        The third of Bickelmeyer’s concepts is arguably the most noteworthy. In what he calls “a gift for children”, Bickelmeyer proposes an orbital weapons platform that would function by the collection of solar radiation, which would then be magnified and directed to the surface as a lethal beam. He claims that this weapon could potentially be as precise as to eliminate a single personal target, or as broad as to effect entire countries. Bickelmeyer advocates the use of this platform against terrorism and in pursuit of the war on drugs. He stresses that, because this is not a nuclear weapon, there is no danger of radioactive fallout.

        http://2016.republican-candidates.org/Bickelmeyer/

        1. Mein Gott! He thinks Real Genius is a documentary!

          1. He’ll have the last laugh when gravity suddenly reverses itself…

        2. I can’t really take seriously someone who’s stealing ideas from Die Another Day .

        3. I have to admire a man who refers to an orbital death ray as a “gift for children.”

          1. “Death ray it from orbit – just to be sure.”

            Good enough!

    2. 6. I can’t really see The Dildo King being a Republican. Although maybe that’s too obvious.

      1. WINNER! Your prize is Jonathon Sharkey, the first vampire to run for president:

        He has described his policy on crime as follows: “Certain criminals, instead of being put in jail, they should be brutally tortured and impaled…. Upon them being found guilty of their crimes I’ll beat them, torture them, dismember them and decapitate them.” In an appearance on Tucker Carlson’s television show, he agreed with the host’s description of him as “not simply a vampire, [but] a right-wing vampire” and said his policy for dealing with drug dealers is to “go to Sicilian families and have them attack the drug dealers for me”.

        https://en.wikipedia.org/wiki/Jonathon_Sharkey

  10. “Likewise, in the 2005 medical marijuana case Gonzales v. Raich, “originalist” Scalia voted in support of the New Deal Supreme Court’s sweeping interpretation of federal power under the Commerce Clause.”

    There’s your damning evidence right there.

    The federal government’s power to regulate commerce among the several states our lives is only limited by its own desire to do so.

    “If Congress can require Americans to buy health insurance, Justice Antonin Scalia asked, could it force people to buy just about anything ? including a green vegetable that many find distasteful?

    “Everybody has to buy food sooner or later,” he said. “Therefore, you can make people buy broccoli.”

    http://www.nytimes.com/2012/06…..ebate.html

    Scalia understands that the Commerce Clause needs limitations, and yet he’s willing to ignore those limitations if it means we might need to stop locking people in cages for growing marijuana in their own homes–even when the State jurisdiction in question legally allows them to grow it.

    1. What don’t you understand about “principled judicial conservatism”? It has principled right in there.

      1. All principles go out the window when somebody wants their pony.

  11. Ah yes, the ol’ despotism tempered by corruption argument regularly trotted out by state apologists. I suppose all we can realistically hope for, according to Whelan, is what Beaulieu stated about 19th century Imperial Russia, ” The administration’s inertia or duplicity, duly paid for, paralyzed bad laws as well as good ones. The functionary sells liberty to one, tolerance to another, and immunity to both innocent and guilty.” Way to settle for low hanging fruit, buddy.

    1. In all honesty, it’s probably only corruption and incompetence that allows despotic third-world countries to operate at all. We’ll be so lucky to have an administrative state managed by pliable functionaries rather than immovable progressive ideologues.

      1. You may have a point. Somebody over the weekend made the argument that pliable, corrupt police forces subject to bribery are preferable to the mindless authoritative instincts fostered by our current enforcement agencies. I just get the feeling that the expansion of state control over our everyday lives will inevitably degenerate into some form of soft judical nepotism. If in fact that is preferable to blanket authoritative rule of law is probably dictated on being subject to its’ immediate scrutiny.

        1. There’s a sentiment on the left that government is the only agency big enough to rein in the corporate behemoths. I think they’ve got it backwards: corporate interest may be the only force with enough pull to prevent full-blown industrial nationalism, even if we’re only trading cronyism for fascism.

          1. There’s a sentiment on the left that government is the only agency big enough to rein in the corporate behemoths.

            Yeah. We’ve got to wrest control of the government from the corporations by giving more power to the government so it can control the corporations that control it. And if the corporations still control that more-powerful government, it’s because the government doesn’t have enough power to control the corporations that control it. So we need to give more power to the government so it can control the corporations that control it. And if the corporations still control that more-powerful government, it’s because the government doesn’t have enough power to control the corporations that control it. So we need to give more power to the government so it can control the corporations that control it.
            .
            .
            .

        2. It has often been said in argument against government reform that if you don’t like inefficient and ineffective government, you really do not want to see what efficient and effective government looks like.

          1. “The only thing that protects us from the bureaucracy is its inefficiency”.

  12. ..it was conservative “originalist” Antonin Scalia who lashed out most aggressively

    Human nature. People are the most sensitive and prickly when you get too close to their own weaknesses. Had a boss who was habitually late, yet made a fetish of punctuality for his staff. My dad came down hard if any of us kids got mad about something, yet his temper would flare up white hot. Bill Bennet has a gambling problem.

    So of course Scalia would be the most sensitive because he knows in his heart that Gura is right.

  13. When things are so far out of whack, people latch on to any hope they can find.

    We think to ourselves, ‘If only Scalia’s originalism had predominated, we wouldn’t have an individual mandate and maybe we wouldn’t have ObamaCare’, but if Scalia is the prettiest girl in this beauty pageant, that doesn’t necessarily mean he’ gorgeous. It may just mean that he’s up against some seriously ugly competition.

    Thank God they haven’t taken away our guns, but maybe we shouldn’t be thanking Scalia’s brand of originalism. If Scalia and others like him felt the same way about gun owners as he feels about medical marijuana patients, we might have all been forced to turn in our guns already.

    But I’ll admit, I’m glad there’s somebody on the court who’s willing to make originalist arguments. It’s better than nothing, and it’s better than the alternative. But that’s no reason for us to pretend that Scalia is an originalist knight in shining armor if he isn’t.

    1. But that’s no reason for us to pretend that Scalia is an originalist knight in shining armor if he isn’t.

      Scalia is a Republican. That’s all you need to know.

      1. Specifically, I think it’s his position on Roe v Wade.

  14. His point is that libertarians “ought to prefer judicial conservatives to judicial progressives.”

    Uhm, we do. Except when the conservative justices push for expansions of state power and police privilege.

    Or is he upset that we don’t support every war, expansions of the search and seizure power, more immunity for law enforcement at all levels, and that we aren’t really all that worked up about gay marriage or abortion? That, while we have people on both sides of the last two issues, most (l)ibertarians find the first few issues far more pressing and dangerous to the population at large.

    1. I think it’s more that anytime we prefer progressives to conservatives, the Baby Jesus kills a kitten. In crushing porn.

    2. This. And I read

      Except when the conservative justices push for expansions of state power and police privilege.

      as “except when conservative justices choose to be progressive.” Which is damn right.

  15. So, the extent of Whelan’s commentary can be translated into: “Get back in your trunk, Gimp.”

    1. Nah, it’s “Back on the reservation.”

  16. If “conservatives” weren’t usually so full of shit, there wouldn’t really be a difference between libertarians and conservatives. Conservatives like to think of themselves as strict constitutionalists, the constitution is a remarkably libertarian document (slavery aside), ergo… So this dude’s just butthurt that we aren’t his useful idiots on some of his favorite issues.

    1. Hamilton agreed that it was a libertarian document. That’s essentially what he told people to get it ratified. Then after ratification he told the truth about those all encompassing powers provided by those particular clauses.

      It turns out that it was a centralizing document meant to strip away the sovereignty of those United States.

  17. I’ve always thought of conservatives as the “Useful Idiots”. De-emphasis on Useful, with emphasis on Idiots.

    On that note, anyone attempting to align libertarians with Progs or Cons just doesn’t get it. The Nolan Chart provides the best illustration as to why.

    1. Cons have a very constitutionalist streak in them usually. They just lapse here and there for their own pet programs.

      Besides, we align with one or the other on pretty much every issue that they take opposite sides on.

      1. Yes, some Cons possess the cognitive ability/education to argue for originalism with respect to the Constitution. However, the other 90% couldn’t articulate that concept if pressed. They line up with the rest because originalism suits their conservative world view.

        In the popular nomenclature here at reason, Conservative has somehow come to mean something similar to libertarian. This is a mistake.

        1. I’d almost call libertarians “progressive” if that word wasn’t already used for something almost entirely contrary to libertarianism.

          1. THIS. To me, progress in governance (progressive government) SHOULD BE retraction of government. We seem to be going to the opposite direction since the enlightenment.

  18. The old “abandon all your principles and vote GOP because it’s better than the alternative” trope. No thanks. I don’t care if the GOP and libertarians are traditional allies if the GOP supports all the shitty, anti-freedom policies they continue to support.

  19. Pick a TEAM, you damn libertarians!

  20. Conservatives give lip-service to economic liberty while being openly hostile to personal liberty.

    Progressives give lip-service to personal liberty while being openly hostile to economic liberty.

    So conservatives are going to get angry when libertarians support personal liberty, and progressives are going to get mad when libertarians support economic liberty.

    Heads they win, tails we lose.

    1. The progressives are pretty hostile to most personal liberties if you choose wrong (the distinction between personal and economic liberty is almost completely artificial).

  21. As usual both sides are talking past each other. The problem is that Progressives are going to abuse whatever power you give government, whatever form that power takes. Root thinks we can give power to the courts to enforce our rights in very broad ways Whalen thinks are dangerous. Root thinks trusting the ballot box is more dangerous. Neither side seems to understand what the other is saying or fully appreciate the dangers associated with their own approach.

    The two parties disagree over just how dangerous the courts are. Root doesn’t view them as dangerous because like most Libertarians he really doesn’t view the Progs as being dangerous. Root doesn’t see much to worry about courts declaring positive rights and using them to create the Progressive state by judicial decree because he trusts and likes Progs in a way Whalen doesn’t. Whalen hates Progs and is terrified of them taking over the courts. Root sees Progs as fellow travelers on a lot of issues he cares about and no more dangerous than conservatives on the issues he disagrees with them on. Root is okay with changing giving Progressives judges powers because he both doesn’t view them as a threat and figures they will give him a good part of what he wants anyway.

    1. Root doesn’t view them as dangerous because like most Libertarians he really doesn’t view the Progs as being dangerous.

      How do you even begin to square that with the fact that Root specifically indicts judicial conservatives for treading ground first cleared by progressives? And where is this predominating affinity for progressivism among libertarians?

      1. That just says he views progressives and conservatives on the same level not that he views progressives as dangerous. Whalen’s point is that giving courts broad powers to recognize “rights” is going to be abused by Progressive judges. Root disagrees and doesn’t see that as a danger. I don’t see how Root can say that unless he doesn’t view Progressive judges as being particularly dangerous. Surely, he is not so naive that he thinks we can only give these powers to right leaning judges.

        1. Root disagrees and doesn’t see that as a danger.

          Where?

          1. If he doesn’t see it as a danger, then why does he disagree with Whalen? Again, Root surely doesn’t believe only right leaning judges will have the power to enforce “rights”. If he sees it as a danger, it is clearly a danger he is willing to risk or he wouldn’t disagree with Whalen.

            1. “A danger he is willing to risk” is not the same as not viewing it as a danger. It seems to me that Root, like most libertarians, finds both teams dangerous in slightly different ways.

              1. Yes, He finds both teams dangerous. He does however find Progressive judges less dangerous than conservative legislatures. If he didn’t, he wouldn’t be willing to give Progressive judges power at the expense of legislatures whatever their leanings. Given a choice, Root would rather give Progressive Judges power than voters. So whatever the danger, he doesn’t view it as a very big one.

                1. You’re reading a great deal into the words of a scholar who’s taking another scholar to task for fraternizing too closely with progressive judicial sentiments.

                2. John, I see the issue as confusion regarding the term “activist judge.” A true originalist/textualist shouldn’t shirk from the label of “activist” when a piece of legislation/regulation comes around for review and it does not directly derive it’s authority from the original limited powers of government outlined in the Constitution. The type of legislative deference espoused by CJ Roberts and his ilk is nothing but an abrogation of duty. The type of originalism/textualism espoused by Scalia is nothing but “when it suits me.”

                  In a republic where government has specific, limited and enumerated powers, government action should first be viewed through the prism that it is unconstitutional, with a heavy burden on the government to prove that it is not. Cons should embrace this but only do so when their preferred policies aren’t on the chopping block. That’s pathetic.

    2. “Root doesn’t view them as dangerous because like most Libertarians he really doesn’t view the Progs as being dangerous. Root doesn’t see much to worry about courts declaring positive rights and using them to create the Progressive state by judicial decree because he trusts and likes Progs in a way Whalen doesn’t. Whalen hates Progs and is terrified of them taking over the courts. Root sees Progs as fellow travelers on a lot of issues he cares about and no more dangerous than conservatives on the issues he disagrees with them on.”

      If you’re trying to compare the dangers of the Drug War to the dangers of ObamaCare, you’re going to get into some kind of qualitative debate about personal preferences–rather than principle.

      Surely you’ll agree that the danger of the conservatives supporting something like the Drug War and the danger of the progressives supporting something like ObamaCare are both dangers.

      And, furthermore, surely you can see that libertarians oppose both of them for the same principled reasons–especially because people should be free to make choices for themselves.

      1. Okay. You agree with Root. Good for you. Both sides have their points.

        You choose a terrible analogy in the drug war. The drug war was done by elected officials in the form of statute. Whatever the harms of the drug war, it is not an example of judicial overreach. It is also not the product of conservatives alone.

        The same is true of Obamacare. Like it or not, it is a law. In fact both the drug war and Obamacare are an example of the dangers of Whalens approach. They are both very bad laws that courts have refused to overturn. If you go with Whalen’s approach you sometimes get things like Obamacare and the drug war and courts won’t save you.

        If you go with Roots’ approach you get things like disparate impact CRA law suits and forced school busing just to name too.

        Both approaches have their dangers.

        1. Whatever the harms of the drug war, it is not an example of judicial overreach.

          Of course it is. Look at Raich. Every drug law ever passed at the federal level should have been struck down by now.

          1. No Nikki, it is an example of courts deferring to legislatures. Which part of both the drug war and Obamacare are an example of the dangers of Whalen’s approach. do you not understand? I thought you were smarter than sarcasmic.

            1. We’re talking about Scalia’s opinion in Gonzales v. Raich in Root’s post.

              In that opinion, Scalia held that individuals don’t have the right to grow their own medical marijuana–not even in accordance with State law.

              That is not the court deferring to legislatures.

              That’s conservatives sticking to an issue by any rationalization possible.

            2. John, when you possess certain power, authority and responsibility, inaction IS action, sometimes. Legislative deference to policies without clear and specific constitutional authority isn’t very different from isn’t demonstrably better than that same judge “legislating from the bench.”

          2. Raich is bad, but federal involvement in narcotics is pretty small compared to the states’.

            Every drug law ever passed at the federal level should have been struck down by now.

            Even those dealing with imports & exports?

        2. “Root sees Progs as fellow travelers on a lot of issues he cares about and no more dangerous than conservatives on the issues he disagrees with them on.”

          I don’t see progressives as fellow travelers with libertarians on any issue, and I’m not sure Root does either.

          The purpose of libertarianism is to use the government and the courts to protect our right to make choices for ourselves. The purpose of progressives is to use the coercive power of government and the courts to force individuals to sacrifice their individual rights for the “common good”.

          In other words, if libertarians happen to end up on the same side as progressives on any particular issue, we’re still at cross purposes.

          I don’t support gay marriage because I want to use the coercive power of government to force fundamentalist Christians to participate in gay marriage ceremonies. If I support gay marriage, it’s because I don’t want the government to arbitrarily discriminate against people in the granting of licenses. In fact, I may see it as a step towards denying the government the ability to grant such licenses at all.

          Progressives aren’t fellow travelers. They’re the enemy of liberty.

          Insofar as conservatives are the enemy of liberty, they’re the enemy of libertarians, too. …even if we happen to end up on the same side of some issues.

          1. Progressives aren’t fellow travelers. They’re the enemy of liberty.

            Okay. Then why do you and Root like the idea of giving Progressive judges so much power? Again, you do understand that all judges, not just the ones you like, will get the power Root is talking about?

            Moreover, how do you know Progressives didn’t support gay marriage out of a concern for liberty? Just because they want to rob us of come liberties doesn’t mean they want to rob us of all our liberty. I think Progressives most certainly are fellow travelers on issues like gay marriage. I don’t see how you can say they are not. You agree with the progs on it being a right don’t you?

            1. Yeah, I’m aware that progressive judges will be able to assert individual rights against popular legislation, too.

              But I still want the courts to assert individual rights against popular legislation when it’s correct to do so anyway.

              My problem with progressive judges is that they’re likely to abdicate their responsibility to protect our individual rights.

              The whole idea of progressivism is to be hostile to individual rights. Being progressive is about marshaling the masses to run over various individuals’ right in the pursuit of some greater good they see.

              I just don’t see our rights as a popularity test.

              I was sad to see people vote on propositions to allow or deny the right to gay marriage–like it was the mid-Nineteenth Century and we were voting on slavery or something. Why should my opinion as a voter matter on other people’s rights? The wolves have it–it’s lamb stew for dinner?

              Meanwhile, much of our government was built as a popular response to short term crises that ended a long time ago–and now we have no way to get rid of it. Much of our government is still a response to the Great Depression and World War II.

              1. What was it Barry Goldwater said, “Extremism in the defense of liberty is no vice”? I guess that’s where I am right now. Every right is the right to make a choice, and every individual should be free to make choices for themselves. That’s what I want from a legal philosophy, and that’s what I want from the Supreme Court.

                Yeah, I guess I don’t see the danger of legislatures not being able to override people’s individual rights, but maybe that’s because I’m not a progressive.

            2. You agree with the progs on it being a right don’t you?

              NOOOOOOOOO I DON’T!!!!!!!!!!!!!!!!!!!!!!!!!!!!

              Government marriage (as it currently exists) isn’t a right, it’s an entitlement. Reasonable people can argue whether granting such entitlements to anyone is a legitimate function of government. My position is that it isn’t.

              The only applicable argument in favor of of government recognized gay marriage is that not recognizing it, while recognizing hetero marriages, means the government has overstepped its authority by not providing equal protection under the law.

              The court does not have the authority to establish rights, positive or negative.

              1. Then you think it is a right. You just don’t understand fully why and how but you do.

              2. Then you think it is a right. You just don’t understand fully why and how but you do.

    3. Conservatives and progressives are both dangerous to individual liberty. They’re two sides of the same coin in that they both see government as a powerful tool to shape society as they see fit. Neither side is interested in leaving people alone.

      Gun to my head I’d have to say progs are slightly more dangerous because their meddling tends to be far more far reaching than the cons pet social issues, but more and more it seems like there’s increasing amounts of crossover between the two. You’ve got cons who are more than happy to expand government power in general and progs who act more and more like puritans, getting their panties in bunches over things like drugs and pr0n. Pretty soon they’ll be indistinguishable.

  22. Conservation of authoritarianism and chains is not a virtue.

    1. What do you define as “authoritarian”? The term is content neutral in that a benevolent dictator is still a dictator. It goes to really what is the heart of the difference between conservatives and libertarians. This whole debate is about the power of unelected and unaccountable judges to overrule the will of the voters in the form of elected officials. Everyone agrees that in some cases that is right and necessary. The debate comes when you get in the details of exactly when.

      Conservatives are classical liberals and believe in a representative republic. They are as a result hesitant to rely on judges to overturn laws, even bad ones. Libertarians in contrast are not classical liberals. They believe in the individual not the republic. Since the end is the individual and maximum freedom not a commitment to a form of government, Libertarians are therefore much more supportive of judges overturning bad laws. Libertarians don’t see any downside to circumventing the electoral process as long as the results are good. Conservatives do.

      1. Libertarians don’t see any downside to circumventing the electoral process as long as the results are good. Conservatives do.

        So conservatives support mob-rule as long as they like the results? That’s sounds about right.

        1. That is how Libertarians see it sure. Whether you believe that or not comes down to whether you think people have a right to have a say in their government even when you don’t like their choices.

          1. If the purpose of government is to protect individual rights, then it is the duty of that government to stop the mob from using government to trample individual rights. You seem to be arguing that stopping the mob should not be part of the process. I think the argument from libertarians is that the judiciary should judge laws based upon some set of principles, like a constitution perhaps, and if that constitution doesn’t say the government can do something, then it is the duty of the judiciary to stop it. Even if the mob wants it.

            Your argument seems to be that if the mob really wants it, then the mob should get it.

            1. “Your argument seems to be that if the mob really wants it, then the mob should get it.”

              Or that the conservative mob is qualitatively better than the progressive mob–and that somehow justifies the mob.

              1. Or that the conservative mob is qualitatively better than the progressive mob–and that somehow justifies the mob.

                Pretty much.

            2. Your argument seems to be that if the mob really wants it, then the mob should get it.

              That is not my argument at all. EVERYONE FUCKING AGREES THAT THERE ARE TIMES WHEN COURTS NEED TO OVERTURN LEGISLATURES.

              Does it make more sense in caps? The question is how willing should they be to do that. Not every law, even bad ones, is a mob looking to take all of our rights.

              I don’t know how else to explain it to you. Stop lying and pretending my argument is the strawman you want to burn in your head.

              1. Not every law, even bad ones, is a mob looking to take all of our rights.

                Every law, even bad ones, is an application of force. When it is not in reaction to force, then it is an initiation of force. When it is an initiation of force, then someone wins and someone loses. In that case it is indeed the mob looking to take away someone’s rights, namely the loser.

              2. Please tell me this isn’t about how gay marriage shouldn’t be alright because the gays are a bunch of homos.

                1. “Not every law, even bad ones, is a mob looking to take all of our rights.”

                  I’m kind of partial to the argument that democracy really is two wolves and a lamb arguing about what’s for dinner.

                  Maybe not every bad law is a mob looking to violate our rights, but if libertarians are all about how if government has any legitimate function at all, it’s to protect our rights, then it’s easy to see why we would be especially sensitive to the mob trying to take away our rights away.

                  Add to that the historical direction. The courts overreacting and heading off democracy to protect our rights when they shouldn’t seems pretty unlikely given recent history. I guess the Court asserted our gun rights recently over local legislation, but apart from that?

                  How scared should a libertarian be that the Supreme Court is going to protect our individual rights against the mob too much?

                  1. The mob isn’t the primary ingredient in populist politics. The mob is as much a useful tool as any special interest, it just coheres and reforms in strange and unpredictable ways. But it does so primarily at the whims of political insiders. It’s not a thing to be led but it can be harnessed and ridden for a time. Worst of all, because it has the patina of “grassroots” and “democracy in action,” it’s somehow more laudable or less reprehensible than special interests and cronies.

            3. Your argument seems to be that if the mob really wants it, then the mob should get it.

              And there it is.

              Conservatives/Republicans favor a a republic over a democracy EXCEPT when doing so favors the position of the other TEAM. And THEN mob rule is fine.

          1. Yeah because Conservatives love Roberts and don’t view him as a sellout or anything.

            1. How else do you describe an ostensibly conservative justice who bows to populist whimsy?

              Other than “not conservative,” which is true of much of the GOP.

        2. So conservatives support mob-rule as long as they like the results?

          No. But maybe you missed these two sentences.

          Everyone agrees that in some cases that is right and necessary. The debate comes when you get in the details of exactly when.

          Did you miss that or do you not understand some of the words such that I need to explain them?

          1. Oh I didn’t miss it. You’re saying that if you like what the mob wants then it’s good. And if you don’t like what the mob wants then it’s bad. No principles, just like or dislike.

            1. Then you don’t understand what it means. I don’t know what to tell you other than no. I am not saying that at all and there is no reasonable way to read that sentence any other way.

              1. Unless you can define some principled way of deciding, then it must come down to like or dislike.

                1. The principle way is read the document as it was written and enforce it that way. If the document doesn’t protect this or that right, you don’t pretend it does because you like the result.

                  The Constitution doesn’t guarantee us good government. It should, if read properly, guarantee us limited government and the ability to through political action change the course of that government. It does not do what Root wants it to do. And saying it does is giving other people the power to redefine it in way I doubt Root is going to like.

                  1. If the document doesn’t protect this or that right, you don’t pretend it does because you like the result.

                    I see. So you support enumerated rights and unenumerated powers. Got it.

                    I support enumerated powers and unenumerated rights. As in if the document doesn’t say the government can do something, then it can’t. Even if you like the result. And if a right is not enumerated, that doesn’t mean the government can trample on it. I kind of thought that’s what the 9A was talking about.

                    1. The question is, who decides which rights fall in the unenumerated category. If judges have that power they can literally decide that anything is a right, and there will be absolutely no recourse other than constitutional amendment. How do you think that will turn out?

                    2. That’s easy enough. At least from a perspective of enumerated powers. A right that requires proactive government action is not a right, but a power. For example health care. For health care to be a right, then the government must proactively enforce it. That’s a government power. Contrast that with the rights to life, liberty and property for example. No proactive government action is needed to enforce those rights until they are violated. So that isn’t creating a new government power.

                    3. Are you a SC justice? No, then your opinion(which I happen to agree with) doesn’t mean shit. This isn’t a discussion about what the law should be. The question here is who wields the power and what can you do when they abuse that power.

                    4. The question here is who wields the power and what can you do when they abuse that power.

                      We know who wields the power. Unfortunately it seems there isn’t a damn thing that can be done when the abuse it. That’s the nature of power, isn’t it? No one can stop you because you’re the one who stops people.

                    5. The question is, who decides which rights fall in the unenumerated category.

                      And the logical answer to that question is that negative rights are limitless. You have the right to do anything you want, provided you don’t infringe upon the rights of another.

                      IMHO, that’s what 9A means. The only boundary to your rights is where you impact another.

                      Positive rights, are not really rights at all, they are entitlements. Again IMHO, entitlements should not be able to be legislated or adjudicated into existence. They should be limited to those things the Constitution (founding document) grants government the “power” to provide (courts, military…).

                    6. The problem in unenumerated rights (incidentally, I think people have a practically infinite number of unenumerated rights) is “rights”…

                      I don’t think that word means what progressives think it means.

                      Healthcare is not a right. And that’s just an example.

                      I think the people have positive rights against their governments for the enumerated rights and negative rights against their governments wrt the unenumerated powers.

                      Once people start talking about unenumerated rights, the language tends to take an Orwellian turn.

                    7. I don’t think that word means what progressives think it means.

                      That’s because government is the progressives’ god. All rights come from their god. To them the 1A doesn’t protect an existing right to freedom of speech, it creates it. So from that perspective, government can create any right to anything, like heath care for example. Except that no one has the right to compel someone to serve them. That’s not an existing right for government to protect, it’s a new power for government to employ.

                    8. The only supernatural element to this conversation is natural rights. What does it mean that a right to free speech preexists the first amendment? What’s the point of the first amendment then? Why would anyone ever need to invoke it?

                      If you’re talking about the liberties people have in the absence of government and, presumably, the absence of other forms of force, then you theoretically have any number of rights, including the right to murder and steal. A right to free speech is only meaningful if some force prevents other forces from taking that right away, in our case constitutional law as enforced by courts.

                    9. 8======D~~

                    10. In reply to Tony.

                    11. Tony, your stupidity never ceases to amaze. A right to speech does not harm the life, liberty or property of another person, while murdering and stealing does. The fact that you cannot comprehend that distinction is frankly amazing. Natural rights are simply a name given to the idea that as long as you’re not harming someone else, you should be free to do what you want. That’s all it is.

                      Try reading the 1A. The language of it recognizes the right to freedom of speech. It doesn’t create it.

                      Also, the enforcement of natural rights is strictly reactionary. As long as those rights are not violated, then government doesn’t have to do anything. As opposed to so-called rights that you support, which require government to be proactive. Not that I expect you to understand the difference between reactive and proactive, since you can’t comprehend the difference between inaction and action.

                    12. Natural rights are simply a name given to the idea that as long as you’re not harming someone else, you should be free to do what you want. That’s all it is.

                      No, that’s an expression of the nonaggression principle. Natural rights are rights that supposedly exist independently of any authority, usually invoked when people want to have certain rights but some authority is not letting them have them. I don’t really begrudge your insistence on universal rights. It’s a nice rhetorical device. I object to the fact that you guys not only insist on these magical rights but that nobody but you knows what they are or is allowed to add to them. It all boils down to you asserting a right to tell everyone else how they’re entitled to live, which is the opposite of what you claim to believe.

                      My objection boils down to a nonbelief in magic, that’s all.

                    13. No, that’s an expression of the nonaggression principle.

                      A natural right is a right to do whatever you want, so long as it doesn’t violate the NAP.

                      I object to the fact that you guys not only insist on these magical rights but that nobody but you knows what they are or is allowed to add to them.

                      What you are objecting to is your own stupidity. It’s not our fault you’re too stupid to understand that a natural right is simply a right to act in such a manner as to not harm the life, liberty or property of someone else.

                      It all boils down to you asserting a right to tell everyone else how they’re entitled to live, which is the opposite of what you claim to believe.

                      All we assert is that people shouldn’t harm the life, liberty and property of others. I don’t see how that is a terrible thing, unless you’re someone who wants to harm the life, liberty and property of others.

                      Of course, that’s exactly what you are. You are someone who wants to harm the life, liberty and property of other people. I don’t think that makes you a good person. Quite the opposite. That’s what evil is, Tony.

                    14. Tony, rights need to be universal and mutually compatible. A right to murder cannot be applied universally and is incompatible with other rights. So are so-called positive rights like a right to healthcare. A right to some scarce resource implies that someone else has to be compelled to come up with the resource (nevermind what to do if there isn’t enough of it for everyone).

                      Personally, I am fine with people coming up with new rights so long as they properly think through those rights and determine how to reconcile them with other rights held by other individuals. For instance, I think we should add “freedom of occupation” to our list of basic rights on the grounds that everyone ought to have the right to pursue an occupation of their choice.
                      A right to practice medicine doesn’t infringe on anyone else’s rights, unless you think that some people are born entitled to be doctors and others are not, which violates the universality principle.

                      None of this involves me telling everyone else how they’re entitled to live. Merely that if they want to claim something as a right, they have to recognize that I have the same right, and show that that right does not inherently violate my pre-existing rights. My telling you you can’t force me to live according to your values is equivalent not me forcing you to live according to mine. There are many things you and I can do that do not involve coercing eachother into obedience to our desires.

                    15. “What does it mean that a right to free speech preexists the first amendment? What’s the point of the first amendment then? Why would anyone ever need to invoke it?

                      Tony is so stupid, he doesn’t understand the difference between legal rights and natural rights?

                      We already knew that.

                      I bet he doesn’t understand the difference between law and ethics either.

                    16. A right to free speech is only meaningful if some force prevents other forces from taking that right away, in our case constitutional law as enforced by courts.

                      Um, no. Close, but no cigar. It is only meaningful if some force reacts to other forces infringing up on that right. There is no prevention. That would be a proactive act. There is only reaction. Maybe fear of that reaction can act as prevention, but there is no active prevention.

                      It really amazes me how stupid you are. You can’t comprehend the difference between proactive and reactive. Seriously. That requires an amazing amount of stupidity. Simply amazing.

                    17. The purpose of the First Amendment is to prevent the FedGov from violating certain individual liberties.

        3. If I only had 2 choices, I think I’d rather be ruled by the mob than TOP MEN. The mob is much easier to deal with.

          1. Either way you’re being ruled by TOP MEN. The difference is whether or not those TOP MEN listen to the mob or not.

      2. Conservatives are classical liberals

        So which of those two contradictory terms do you not understand?

        1. Would a conservative reading of the constitution not be a classically liberal stance?

          Most conservatives are classically liberal and just fall for the police state and other BS the GOP peddles. It’s pretty easy to show a lot of them the light on the war on drugs and so forth. Most of them just don’t think THAT hard about it. They don’t see the forest for the trees on issues that they don’t think are directly applicable to classical liberalism.

          1. Hayek would disagree. And I think most libertarians would not find solace in Russell Kirk.

            1. Ok, not enough time right now but definitely reading that later. Thanks.

              When I think conservative, I tend to think “no expansion of government power” rather than “no changes in governance.”

              I, of course, realize that isn’t what a lot of conservatives really sell and that is why I switched brands. That’s all I’m driving at.

              1. That’s one issue- what do the terms actually mean? LMK what you think of the Hayek piece- it was something that influenced my thinking quite a bit when I was younger.

  23. Having finally read Whelan, he doesn’t seem to take a position on the parade of horrors mentioned in the article – Raich, the 9th Amendment, and the rest.

    Instead, he advocates originalism and a certain (unspecified) degree of deference to government.

    He also suggests that the absolute priority of freedom-fanciers should be opposing the judicial progressives – the “living constitution” crowd which has produced, let’s say, 90% of the freedom-impairing decisions we’re suffering under now.

    I’m uncomfortable even at Whalen’s vague reference to deference, but I agree with originalism, and if there’s no fair, originalist way to protect liberty, then the courts should sorrowfully vote for the non-libertarian result.

    At the same time, there are some key originalist approaches to the Constitution which would promote liberty, and in cases where two equally-plausible originalist interpretations are available, I’d go for the liberty-promoting interpretation.

    1. For example, the 14th Amendment’s privileges and immunities clause can be read to protect several basic rights, both in and out of the Bill of Rights.

      Privileges and immunities started out in the 1788 constitution as a protection of out-of-state visitors against discrimination from the state they’re visiting – so that an Iowan visiting California has the right to the privileges and immunities of a Californian – eg, the right to bear arms on the same terms as a Californian.

      A perfectly plausible originalist reading of the 14th Amendment’s privileges and immunities clause is that it broadens privileges and immunities so that instead of just out-of-state visitors, it protects *everyone,* and protects them in an absolute sense. So Californians are entitled to the right to bear arms, not just to the extent state law provides but to the extent of the right itself.

      That interpretation being viable, it should be the one the courts adopt because it’s pro-liberty.

      1. There would be some things libertarians would have to give up if they stick to originalism.

        For example, I see nothing in originalism which would make excessive taxes, as such, unconstitutional. That’s a big one.

        And while I don’t think the feds are authorized to meddle with drugs (see 10th Amendment), I don’t see how the states could be, under an originalist theory, be required to legalize drugs, not even dope, not even booze.

        Of course, the living-constitutionalist judges show no inclination to protect us from high taxes or drug prohibition, so these concessions are of mainly academic interest.

        1. Origianalism would greatly reduce the power of the federal government and increase the powers of the state governments.

          That is not a perfect solution but there is no perfect solution. All things considered, the federal government is a much greater threat to our liberty than the states if for no other reason than you can leave a state and go to another much easier than you can leave the country.

          1. All things considered, the federal government is a much greater threat to our liberty than the states if for no other reason than you can leave a state and go to another much easier than you can leave the country.

            Very true, and also why progressives want everything done at a federal level. They don’t want you to be able to escape them.

          2. I’m still unclear why investing the federal judiciary with a default deference to federal legislation under the theory of avoiding the taint of activism helps preserve us from bad federal laws. IANAL, but from what I could tell Obergefell and King relied on very little constitutional pretext and the 2012 ACA decision required completely undermining the state’s case in order to find for the state (“It is not the Court’s job to fix Congress’ mistakes”). Where is the conservatism in abdicating the judiciary’s primary function vis-a-vis upholding constitutionality in order to defer to Congress and the executive?

            1. The ACA decisions were liberal decisions. The conservatives on court opposed it. Yes, Roberts sold them out. But that is an indictment on Roberts not conservatives.

              You seem to have this idea that Roberts opinions upholding Obamacare examples of conservative jurisprudence. They are anything but that. The conservatives went the other way and Roberts sold them out by siding with the Progs.

              The conservative approach is read the law as it is written. Don’t invent things to get the result you want.

        2. In Lawrence v Texas, Thomas argued that SCOTUS doesn’t have the authority to rule a State statute against sodomy unconstitutional. But if he was a Texan he would absolutely vote to get rid of that law. While I think one can make the argument that SCOTUS can declare it unconstitutional, (indeed I would probably have struck that law down) I think that Thomas had at least a principled stand. Not necessarily deference to the legislature in general, but rather based on the 9th and 10th amendments the power belongs to the state not the federal govt.

  24. Sounds like it comes down to the old saw about progressives and conservatives:

    Progressives exist to make mistakes.

    Conservatives exist to prevent mistakes from being corrected.

    1. I like that. I don’t think I’ve seen it before.

      I also like to say that progressives want to create a future that is impossible and conservatives want to return to a past that never existed.

    2. Progressives want government to be their mommy.

      Conservatives want government to be their daddy.

      Libertarians want government to treat people like adults.

      1. And adults have no real need for government at all.

        1. Oh, I don’t know. If government was limited to protecting the borders from aggression, providing courts for resolving disputes without resorting to violence, enforcing contracts and criminal law (as in crimes with actual victims), then I don’t think we’d have much to complain about.

  25. So…this reminds me of the current state of this place. Anyone else?

    1. You know how it goes when there’s a presidential election around the corner.

      1. The best argument I’ve heard yet for Obama to declare himself President-For-Life.

    2. Well, you know who ELSE led a new populist movement in Germany….

    3. I came from the conservative right wing and slowly decided to look in the mirror and realized that everything I hated about the left was fairly applicable on the right and that nobody should get to use the government against anyone else.

      I do have grudges against media and government and crony capitalists and police and the whole statist shitshow. And they show.

      But I don’t necessarily see anything wrong with that. We all have our pet issues. Gay marriage wasn’t really something I cared about (although I support it). Economic freedom really is. I’m good with both, I just care more about the latter.

    4. fundamentalist Christians or frustrated political losers, retirees with too much time, contrarians by principle or just plain weirdos. What unites them is their anger.

      fair enough.

    5. They use inflammatory speech to pester against the bulk of foreign immigrants, especially Muslims; against homosexuals, Jews, Blacks, Americans, ecologists, free trade, modern “genderism” and whatnot.

      The “new right” sounds like unionists.

    1. That’s it, I’m going back to work.

    2. I love Michelle Fields. To LOOK at Michelle Fields.

      I thought Weigel was Charlie Sheen at first. Sorry about that, Charlie!

      1. Weigel would be quite handsome if he ever decides to stop looking like a fat kid. I wonder if he realizes this.

        1. I believe you are correct

  26. Frankly, I believe much of the disagreement with libertarians and conservatives is similar to the disagreements between the Federalists and anti-Federalists. I think we both have the idea that government should be there to protect individual liberty. The problem comes down to 2 things:
    1) Cons (I don’t mealy mouth Roberts types, but say a Scalia or Thomas) tend to believe that the Fed govt has limited enumerated powers. But that the Fed Govt shouldn’t eliminate state laws unless they specifically violate something called out in the US Constitution. Libs tend to believe that the Fed govt should also limit the power of the states.
    2) As a corollary to the above, Cons tend to believe that “Judicial Activism” can be used both ways: i.e. if they declare laws unconstitutional willy-nilly (at least in their view) than it can equally be used to read into laws other things (like Roberts did to Obamacare). Libs tend to believe in a more “ratchet” like approach: just because SCOTUS can strike something down, doesn’t mean they can make any new restrictions on individuals.

    1. Sorry libs meant libertarians not modern liberals (i.e. progressives)!

    2. But that the Fed Govt shouldn’t eliminate state laws unless they specifically violate something called out in the US Constitution.

      Once again: Raich.

      1. State laws weren’t ruled on in Raich.

  27. Roberts is not a sell out. The libertarian/conservative legal establishment is a sell out. In NFIB v Sebelius Roberts (CJR) defended the constitution, limited the commerce clause, protected the necessary and proper clause. He merely said that “taxpayers” have to pay a duty tax (an indirect tax) with their “income tax” returns unless they do not have enough “income” to trigger the necessity.
    The libertarian/conservative establishment by neglecting Tax Honesty for decades, by never reading Title 26 subchapter A and C, by never questioning all the inconsistencies in the income tax law, are the ones to blame here. Who is a “taxpayer”, what is “income” and “taxable income” were never brought up to question in the Obamacare cases. CJR can only answer the questions presented in the case.
    Stupid, Stupid. They argued the individual mandate, if a tax, was a direct tax without apportionment. Roberts shot that down easily.
    Don’t blame Roberts. Blame the libertarian/conservative establishment who went on the greatest legal stage and lost because they do not understand American taxation.
    http://nontaxpayersforronpaul.blogspot.com/

    1. But, but. but….PENALTAX!!!

      No – Roberts is still a sellout. But nice try.

    2. In order to get to the “tax” issue, Roberts first had to disregard the plain language of the statute and stacks of legislative history.

      Congress had been very clear that it wasn’t a tax (for political reasons, not that it matters). Nobody took the tax argument seriously because it was crystal clear this wasn’t a tax.

      Roberts essentially said his duty to defer to Congress compelled him to disregard what Congress had actually done, and to restate the statute to something that, if Congress had actually passed it, would be Constitutional. IOW, a bizarre and toxic combination of deference and activism.

  28. Libertarians are not the “natural allies” of conservatives. I effing hate that argument. Libertarians align slightly better with conservatives on issues than with progressives…but that isn’t saying much. Those most likely to advocate for statist Drug War and immigration policies, for an aggressive foreign policy, for legislation that invades the privacy of the bedroom, etc., are conservatives (or at least claim to be).

    Progressives suck when it comes to the regulatory/police state; conservatives suck slightly less (but they have not been hesitant to expand the regulatory/police state when it serves their interests (see, for example, the Patriot Act, Medicare Part D and Dept of Homeland Security)).

    1. Those most likely to advocate for statist Drug War and immigration policies, for an aggressive foreign policy, for legislation that invades the privacy of the bedroom, etc., are conservatives (or at least claim to be).

      How can you say the drug war is anything but bi partisan? And the only people invading the privacy of the bedroom these days are progresses in the form of affirmative consent to sex. There hasn’t been a bigger invasion of people’s sexual privacy in my lifetime than affirmative consent. It seeks to criminalize not just a few activities but all but a very narrow scope of sexual activities. Given the rise of affirmative consent, how can you possibly say conservatives want to invade the privacy of your bedroom more than Progs?

      And as far as immigration, again that is bipartisan. Mr Socialist himself Bernie Sanders wants to close the borders.

    2. Conservatives are almost too dumb and bungling to be of any use to us as allies. Use ’em and lose ’em is how libertarians should treat any political faction it aligns with on a political issue.

  29. This guy probably thinks that “progressive statist” = someone who wants to impose their will on conservatives by stopping them from banning drugs.

    Sort of like Tony, in his belief that not being allowed to force everyone to live according to his values is an imposition on his liberty.

  30. I want “judicial activism” to mean a judiciary actively willing to preserve, protect, and defend the Constitution.
    Tough shit for me, I guess.

  31. If you’re talking about the liberties people have in the absence of government and, presumably, the absence of other forms of force, then you theoretically have any number of rights, including the right to murder and steal.
    .
    The world inside your head is a sad, ugly, pathetic place, isn’t it?

    1. To be fair, that describes a world without government perfectly.

  32. Check out Bork’s Tempting of America.

  33. Outstanding!!! Bravo!

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