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The New Republic Discovers the Libertarian Legal Movement

Libertarians are changing the face of legal conservatism.

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Writing in the latest issue of The New Republic, left-wing journalist Brian Beutler takes note note of the libertarian-conservative legal debate that Reason readers have been well aware of since at least my July 2010 cover story on the issue. As Beutler observes, just a few years ago, libertarian legal scholars such as Georgetown's Randy Barnett were "on the fringes of conservative legal thought." But the times they are a-changing. Nowadays, Beutler observes,

their views are taking hold within the mainstream of our politics. Barnett and his compatriots represent the vanguard of a lasting shift toward greater libertarian influence over our law schools and, increasingly, throughout our legal system. They're building networks for students and young lawyers and laying the foundation for a more free-market cast of federal judges in the next presidential administration. Their goal is to fundamentally reshape the courts in ways that will have profound effects on society.

Predictably, Beutler's story is framed as a warning to The New Republic's liberal readers. Watch out! The libertarians are gathering outside the gates! Refreshingly, however, it appears as if Beutler at least tried to portray libertarian legal ideas in a fair manner. That's not to say his piece is free from error. Rather, his errors mostly appear to stem from his own misunderstanding of legal issues, not from any desire to mischaracterize the views of his opponents.

Perhaps Beutler's biggest error is his repeated mislabeling of libertarian opposition to overreaching federal legislation as "Lochnerism," a reference to the Supreme Court's 1905 decision in Lochner v. New York, in which the Court struck down a maximum working hours law for violating the right to liberty of contract. While it is true that libertarian legal thinkers generally approve of Lochner (read my defense of the decision here), Beutler misses the rather important fact that Lochner dealt with a state law and therefore centered on the meaning of the 14th Amendment, which applies only to state action. Libertarian criticism of federal regulation (including the New Deal) tends to center on the original meaning of the Interstate Commerce Clause, which applies to Congress. In other words, these are wholly different constitutional provisions that have produced wholly different lines of constitutional arguments and cases.

This distinction matters—a lot. Plenty of conservatives today are willing to sign-on to libertarian-led campaigns against overreaching federal laws. But not all of those same conservatives are willing to join the libertarians when it comes to limiting state regulations. Why? For one thing, the use of the 14th Amendment against the states is closely associated with such "liberal" cases as Griswold v. Connecticut (1965), in which the Court protected the unenumerated right to privacy, and Lawrence v. Texas (2003), in which the Court struck down that state's ban on "homosexual conduct." To say the least, Borkian conservatives are quite leery of any legal arguments—including libertarian arguments for liberty of contract—that might give aid and comfort to "liberal judicial activism."

This might all sound like nitpicking to a non-legal writer such as Beutler. But I can assure him that recognizing these distinctions is essential if he wants to properly understand what's happening inside the conservative legal movement. In fact, I'd be happy to recommend a book on this very subject.

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  1. Back then, Barnett was one of a handful of academics on the fringes of conservative legal thought.

    Every time someone behaves like libertarianism is just more extreme conservatism, I want to murder them with a hatchet.

    1. Every time someone describes liberty as something to be imposed by force, I want to lobotomize them with a hammer.

      1. lobotomize them with a hammer.

        In the case of Beutler, how could anyone tell the difference?

      2. The great question that humanity must answer if we are to succeed is, is liberty positive or negative? Until the concept of positive liberty is crushed into nonexistence we will not advance.

        1. It doesn’t need to be crushed because it will always come back. Rather it needs to be derided and treated with the utter scorn that it deserves, since it is little more than using government as an instrument of injustice.

          1. There’s nothing wrong with positive liberty. Karl Hess said we won’t be truly free until we can literally walk among the stars w/o an oxygen mask. Positive liberty’s a great thing to have. Problems arise only when conflating negative w positive liberty.

        2. You may intend to refer to positive and negative rights, as positive liberty is not something you would want to do away with (defined as the capacity to act to fulfill one’s own desires or potential).

          Of course the distinction between positive and negative rights is really nonexistent. To be free from aggression you have to employ the positive action of law enforcement.

          1. The capacity to fulfill one’s own desires or potential comes through the application of initiatory force by the government.

          2. “Of course the distinction between positive and negative rights is really nonexistent.”
            I takes a commie bastard to presume that leaving people alone is the equivalent of murdering them.
            Stalin would be beaming, Tony; you are one bloodthirsty piece of shit.

          3. Tony:
            “To be free from aggression you have to employ the positive action of law enforcement.”

            Positive action does not equal positive right.

            “According to this view, positive rights usually oblige action, whereas negative rights usually oblige inaction.”

            A positive right is something like a right to healthcare. Freedom from aggression is a negative right: people are obligated not to aggress against you.

            You can say you don’t agree, but the reason can’t just be an appeal to law enforcement, as if somehow establishing a requirement for cops settles the matter. Perhaps, if you’re retarded.

            Try learning about concepts before you speak about them. It’s less embarrassing that way.

            1. Tony assumes that for liberty to exist someone must provide you with the equipment of Kevlar, mace, and bullets. That’s because Tony can’t imagine any situation in which people coexist without violence; peace requires a police state. That’s because in any world Tony imagines, Tony is present. And he knows his urges.

            2. I am hardly the first to point out this problem with so-called negative rights. And who is making the more outlandish appeal, me for saying that enforcement is absolutely necessary for such rights to be realized, or you for claiming that there can be a society full of people respecting each other’s rights with no enforcement mechanisms. “If only everyone were nice to each other!” is your political philosophy? And I’m the mental defective?

      3. The way I see it:

        Liberals see liberty as something the ultra-rich and the megacorporations want to continue exploiting the poor and eroding the middle class.

        Conservatives see liberty as something the heathens want to continue practicing methods of pleasure not approved by God.

        And this is why I don’t feel comfortable with either of the Big Two parties right now.

  2. Liberty is tyranny!

    /Tony

  3. Derp substantive due process is “problematic” derp

  4. What’s hilarious about that article is that he constantly is fretting about what this will mean for his precious health and safety regulations, but every example he gives of these libertarians challenging laws is something progressives should agree with.

    He talks about the fact that they don’t like Kelo v. New London and want people to be allowed to grow weed. He mentions that they successfully sued to allow small businesses to produce handcrafted, inexpensive caskets, thus undercutting big business interests. And so on. So if it weren’t for the fact that he writes in this conspiratorial EWWWW LIBERTARIANS fashion, most liberals reading that would probably not see what the issue is.

    1. LOL

      Even if you believe these regulations are the result of collusion between government and industry cronies, that doesn’t mean they should be constitutionally prohibited, or even that they have no merit. Once courts are empowered to invalidate sordid government regulations, they are also on a slippery slope to tossing out standards that serve useful purposes?in part because some laws that appear unprincipled at a glance actually do important work. If an Airbnb customer and a hotel guest are each badly burned in preventable fires, the hotel guest is likely to have a great deal more recourse?and would have government regulation to thank.

      Yeah, and if I get burned when I’m staying at a friend’s house I’m also less likely to get a big payday than I am if I’m burned staying in a hotel with deep pockets. Therefore, let’s make it illegal to stay at a friend’s house when you’re visiting another town! Who’s with me!

      And:

      “You should have your own insurance,” he told me emphatically. “You should be insured. You should have health insurance, you should probably have life insurance, disability insurance. I insure myself.” (The irony of this position should be lost on no one?had Barnett’s Obamacare challenge succeeded, 16 million fewer people would have health insurance today.)

      He says you should insure yourself but opposes forcing people to do so. HYPOCRITE

      1. Yeah, and if I get burned when I’m staying at a friend’s house I’m also less likely to get a big payday than I am if I’m burned staying in a hotel with deep pockets. Therefore, let’s make it illegal to stay at a friend’s house when you’re visiting another town! Who’s with me!

        That’s absurd. The real problem is the lack of friendship regulation. With a few commonsense laws, we can make sure your friend has enough insurance for you to live comfortably for the rest of your life after your accidental maiming.

        And don’t worry?if you like your friends, you can keep them, because their insurance premiums will be subsidized. By people who have no friends and thus don’t need the coverage!

        1. “…the lack of friendship regulation….”

          That is currently being addressed:
          “Do you agree to fuck? Yes or no; sign here! Danke.”

    2. Actually the problem is the failure of government health and safety regulation. TNR was located for years on H Street NW and before that on anew Hanpshire Avenue in DC. So everyone there is retarded since they were drinking the government’s high lead level water for years (or making KoolAid with it)

  5. Just finished reading Overruled. The divisions among conservatives and libertarians in the legal movement came to the forefront in the relatively recent McDonald case. Beutler should pay close attention to the chapter that goes over the history of this case to better understand how libertarians and conservatives divide over the 14th Amendment.

  6. It’s funny that he thinks that the next president will appoint a bunch of libertarian minded judges. I guess he’s not ready for Hillary?

  7. It’s really quite simple. The proper function of government is to defend indivdual negative liberty with the retaliatory use of force, period.

    1. The left wants government to step in when someone harms their life, liberty or property, but they also want to use government to harm the life, liberty and property of others on their behalf. They fail to see that it cannot do both. Once it becomes an instrument of injustice, then justice takes a back seat.

      1. Why are the taxes taken to pay for police and courts not harm but taxes that pay for other stuff are?

        1. They are harm. Since in Libertopia the only crimes are actions involving the initiatory use of force there is no need for a large police force or court system so it can be funded with alternative means.

          1. Means such as?

        2. A legal system and defense are denoted responsibilities of the federal government while most of the rest of the shit we pay for is not.

          1. Tautological appeal to the constitution. The constitution permits the current structure of the US government, as we have both the constitution and the current structure; either that or it is powerless to prevent it.

            1. No, the SCOTUS permits the current structure of the US government.

        3. Why are the taxes taken to pay for police and courts not harm but taxes that pay for other stuff are?

          We accept the government being an instrument of justice because we prefer a society where people do not take justice into their own hands. The thing that has been explained to you a million times (that you have demonstrated that you are too stupid to understand) is that when the government engages in behavior that would be considered to be criminal if done by an individual, like forceful wealth redistribution in the name of your childish notion of fairness, then it becomes an instrument of injustice. Thing is, you don’t understand what justice is. You conflate it with fairness. Sometimes they overlap, but they are not the same thing. Justice is an absence of injustice. It’s an abstract concept, not a tangible thing. Just as liberty is an absence of coercion. But you don’t understand abstract concepts. Just like you can’t understand economics because you can’t recognize the unseen. You’re just too stupid. I can lead you to knowledge, but I can’t make you learn. I’m sorry, but it isn’t your fault. Blame your parents. They should never have spawned you.

          1. I don’t know why I bother. I’m asking a simple question that you can’t answer. If taxing is evil theft, then it must necessarily be evil theft no matter what it pays for, even cops. If all you’re saying is that taxing is OK for the programs you like, then why is anyone required to agree with you? I think government should do more things than you, and can do so legitimately, so in the end all you’re saying is you get exceptions to your stated principles because you say so.

  8. “That’s not to say his piece is free from error. Rather, his errors mostly appear to stem from his own misunderstanding of legal issues, not from any desire to mischaracterize the views of his opponents.”

    Read:
    That’s not to say his piece is free from error. Rather, he is a idiot, rather than a scoundrel. So, that’s something…

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    http://www.onlinejobs100.com

  10. I thought TNR stood for Trap Neuter Release?

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