Gary Johnson

William Weld's Troubling Praise for Supreme Court 'Idol' Hugo Black

Gary Johnson and William Weld discuss SCOTUS on CNN's Libertarian Town Hall.

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Gage Skidmore / Flickr.com

Libertarian presidential candidate Gary Johnson and his running mate William Weld fielded a series of questions last night on CNN's Libertarian Town Hall. One question in particular caught my attention.

"Could you elaborate on the type of judicial philosophy you would like to see in the next [SCOTUS] justice?" an audience member asked Johnson-Weld.

"Well, there wouldn't be a litmus test," Johnson replied. Johnson said instead that he would look for nominees who approach "the Constitution from the standpoint of original intent."

Johnson then invited his running mate to provide a more elaborate answer. "I would look for the best legal minds I could find and the whole person," Weld said. "Two of my idols on the court were Hugo Black and Bill Douglas."

It's curious to find a Libertarian presidential ticket name-checking Justice Hugo Black as a SCOTUS "idol." Black was a New Deal Senator from Alabama (and a one-time member of the Klu Klux Klan) appointed to the Supreme Court in 1938 by President Franklin Roosevelt. The best thing that can be said about Black from a libertarian perspective is that he was a First Amendment absolutist, a jurist who argued that "courts must never allow this protection to be diluted or weakened in any way."

Yet Black is no friend to libertarians when it comes to the crucial issue of judicial protection for unenumerated constitutional rights. As far as Black was concerned, the Constitution guarantees only those rights that it explicitly spells out.

It was this view that led Black to file his famous dissent in the 1965 case of Griswold v. Connecticut. In that case the Supreme Court struck down a state law that made it illegal for married couples to obtain or use birth control devices on the grounds that the restriction violated their unenumerated constitutional right to privacy.

"I like my privacy as well as the next one," Black huffed in dissent. "But I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." According to Black, the Supreme Court had no business protecting what he dismissed as "personal rights." Along similar lines, Black also thought the Court had no business protecting "economic rights." Black's Griswold dissent even unfavorably likened Griswold to the Court's 1905 decision in Lochner v. New York, in which a state regulation was struck down for violating the unenumerated right to liberty of contract.

Perhaps it should go without saying, but today's libertarian legal scholars take the opposite view from Justice Black when it comes to the judicial safeguarding of unenumerated rights. Generally speaking, the libertarian legal movement believes that the Supreme Court reached the right results in both Lochner and Griswold.

Ironically, Weld's idolization of Justice Black even undercuts Weld's outspoken support for abortion rights. How? The unenumerated right to privacy that was recognized in Griswold (over Black's dissent) served as a key precedent for the unenumerated right to abortion that was recognized in 1973's Roe v. Wade. So not only does Weld's invocation of Hugo Black raise a potential red flag for libertarian-minded voters, it also raises a potential red flag for pro-choice liberals who might be open to giving the Libertarian ticket a serious look.

(For a more detailed account of Justice Hugo Black's jurisprudence, including the influence of Progressive era legal thinking on Black's hostility to unenumerated rights, please check out the third chapter of my recent book Overruled.)

NEXT: Hamilton, 'Hamilton' and the original intent of the Framers

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  1. Weld’s just on the ticket to get Romney and other centrist Republicans to endorse Johnson. Weld’s duties will be to talk at funerals and ring the opening bell on Wall Street. That’s it.

    1. Then apparently he shouldn’t be talking at town halls pre-election.

  2. Wow. So government can do anything it pleases, as long as there is nothing saying it can’t.

    Just wow.

    1. The 9th amendment notwithstanding.

  3. So how long has the Tenth Amendment been dead?

    1. At least since The Whiskey Rebellion.

    2. Dead since long before Ron Paul began pissing all over it.

  4. I have never understood the long judicial resistance to the idea of a right to privacy. What is the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” other than a basic right to privacy from government scrutiny unless a compelling state interest can be proven (no matter how much that has been gutted by rubber-stamping and the idiot contortions of the idea of “reasonableness.”)

    1. This

    2. Our founders wrote and sgned into law one of the most politically radical documents ever adopted as law. And then, before the ink was dry, they started trying to weasel around it.

    3. Look at people like Posner, who is a right utilitarian, arguing that the right to privacy is a right to lie, then you will understand where they’re coming from, namely authoritarianism.

    4. I have never understood the long judicial resistance to the idea of a right to privacy.

      That one is easy, Saccharin Man: The Courts’ attitudes are based on the axiom, like justice, you can have as much privacy as you can afford (and can afford to lose). Provided you never interact with anyone, ever. Until then, The Courts (including SCOTUS) will arbitrate how much “privacy” to which one is “entitled”.

      As RC Dean recently commented on another thread, answering my question about the word, “reasonable,” – and this is something you commented on years ago as a Constitutional, ” weasley word…” (I can’t find the exact post) – WRT the breath and blood tests cases before SCOTUS.

  5. Black isn’t what I’d call the beau ideal of a libertarian or conservative justice, but at least he believed in enforcing the Bill of Rights against the states while cautioning against judges simply making stuff up as they went along.

    Not that he didn’t make up shit himself from time to time but he had some great discussion of why this was wrong.

    And while his views on the Bill of Rights didn’t fully prevail, and there’s still a couple of provisions in the Bill of Rights which the Supremes won’t enforce against the states, Black *did* help get his colleagues to apply *most* of the Bill of Rights to the states, so there’s that.

    It’s more of a problem for me that Weld praised William Douglas, who was most assuredly of the “make it up as you go along” school of jurisprudence – he wanted a more progressive, lefty constitution than the one the Founders wrote, and he tried to create one.

    Often this meant joining libertarian decisions, other times not so much, as when he went along with a decision that said the states can’t impose residency requirements for welfare recipients, but had to put people on the public teat just as soon as they arrived in a state.

    1. Oh, he was the only one to say stop and frisks were unconstitutional, so there’s that.

      1. The stop ‘n frisk case

        Actually, it seems Douglas was *not* the only dissenter.

          1. Are you arguing with yourself?

            1. What do you care if he argues with himself?

            2. I want to make sure boths sides of the debate are covered.

          2. The Fusionist|8.4.16 @ 11:46AM|#
            Yes, he was.

            It was a 6-3 decision, you fucking liar. You also lied about the case.
            This is even crazier than your pathetic bullshit about Justice Douglas.
            https://reason.com/blog/2016/08…..nt_6318241

            You are one slimy fuck.
            I now need a shower.

  6. In that case the Supreme Court struck down a state law that made it illegal for married couples to obtain or use birth control devices on the grounds that the restriction violated their unenumerated constitutional right to privacy. “I like my privacy as well as the next one,” Black huffed in dissent. “But I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

    Restricting the obtaining or use of birth control devices violates privacy? How is that, exactly? And what bizarre “reasoning” on the part of Black! This passage makes me feel like I’m in The Twilight Zone.

    Oh, it’s lunchtime! No wonder!

  7. It’s curious to find a Libertarian presidential ticket name-checking Justice Hugo Black as a SCOTUS “idol.”

    Occam’s Razor.

    They’re not libertarians.

    1. he was a First Amendment absolutist, a jurist who argued that “courts must never allow this protection to be diluted or weakened in any way.”

      Good enough for me.

    2. I suspect that if someone even suggested that Judge Napolitano would make a good SCJ, both of these diningenuous faeries would have an instant heart attack.

  8. Johnson and Weld are trying to make bland statements that no one can ‘gotcha’ them on. I suspect that’s not a smart strategy. In part because, leave it up to the Libertarians to do it against their own candidate. Weld is fine on abortion, despite his hero’s dissent.

  9. These guys are protest candidates in a race in which the two major parties are running a loose cannon and a crook. They’re meant to appeal to non-libertarians in the hope of scoring double-digits in the election and presenting libertarian solutions as a viable alternative in future elections that the Republicans, in particular, may want to emulate.

    If Hugo Black is a bad choice, he’s a bad choice regardless of his association with a third party candidate for Vice President on a ticket that will celebrate breaking the 10% barrier as a wild success.

  10. And as applied by the Supreme Court, “unumerated rights” means “stuff we make up,” not “rights traditionally recognized as belonging to Americans.”

    So they haven’t recognized a general unenumerated right to property, even though you’d think the “penumbras and emanations” of the constitution would create a right to property just as much as they would create a right to privacy.

    And the right to privacy means the right to screw and abort, and very little else. For example, if you smoke a post-coital joint, you can still get thrown in prison as far as the Supreme Court is concerned, because the right to privacy doesn’t apply to the right to use evul drugs.

    1. So they’re as crazy as Ron Paul on unenumerated rights?

  11. OT: Did Hillary accidentally tell the truth?

    We are going to raise taxes on the Middle Class!

    https://www.youtube.com/watch?v=7ua13_gYQn0

    1. Gotta build up that hostage money, you know.

  12. Oh, and Douglas delivered a decision where the Court said: “We are a religious people whose institutions presuppose a Supreme Being.”

    So he has *that* going for him. Though not everyone here might agree that decision was a good thing.

    1. What a ridiculous thing for a SC justice to say.

      1. What a ridiculous thing for a SC justice to say.

        You’ve been manipulated. This is like a chain email from conspiracy wackos … with a link nobody will check.

    2. Well, Ron Paul tells his puppets that no founder even WROTE about separation of church and state,
      Only the first three Presidents and the entire US Senate in our 9th year.

    3. More bullshit hysteria from The Fusionist (yawn)

      Oh, and Douglas delivered a decision where the Court said: “We are a religious people whose institutions presuppose a Supreme Being.”

      (snicker) What was the DECISION?

      Though not everyone here might agree that decision was a good thing.

      WHAT DECISION? Shame on you AGAIN.

      New York City has a program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises. A student is released on written request of his parents. Those not released stay in the classrooms. ….

      This “released time” program involves neither religious instruction in public school classrooms nor the expenditure [p309] of public funds. All costs, including the application blanks, are paid by the religious organizations. The case is therefore unlike McCollum v. Board of Education, 333 U.S. 203, which involved a “released time” program from Illinois. In that case, the classrooms were turned over to religious instructors. We accordingly held that the program violated the First Amendment [n2] which (by reason of the Fourteenth Amendment) [n3] prohibits the states from establishing religion or prohibiting its free exercise.

      Slanderous attack to fool only your fellow goobers.

  13. I’m sure it is far more troubling to the purists that both Johnson and Weld cited Jefferson as their intellectual muse.
    Don;t they know the man was a slave holder, a rapist, and violated the Constitution by making the Louisiana Purchase with perhaps the bloodiest dictator in Europe? Just because he did some libertarianish stuff, and wasn’t so gauche as to drink red wine with a fish dish, is no reason to celebrate the man.

    1. Slavery had existed for all of human history, thousands of years.
      It was brought to this continent from Europe,
      We ended it in less than 90 years.

      Napoleon dumped the land cheap, because France had severe financial problems.
      But you say that buying the land made us complicit in Napoleon’s tyranny?
      Look at a map and see how the purchase secured the port of New Orleans.

      Save your victimhood and guilt trips for your “safe zone.”
      Nobody with a brain is gonna feel guilty instead of proud.

  14. I honestly don’t think Johnson wants to be in the debates. If he did he’d say “I want to be in the debates” not make jokes like “This town hall will put us over the top.” Nothing wrong with jokes, but Johnson’s not funny and never will be and laughing at your own jokes is just pathetic. He is scared of winning because he doesn’t want to become president because he’s scared of the responsibility. He knows that people are evil but doesn’t know how to deal with it. At least, that’s my theory about him.

    1. He knows that people are evil

      Especially people like you, Weigel.

    2. If he did he’d say “I want to be in the debates” not make jokes like “This town hall will put us over the top.” Nothing wrong with jokes, but Johnson’s not funny and never will be and laughing at your own jokes is just pathetic

      Not as pathetic as your shameful lie, which is exposed at 0:35 iin this video

      . He is scared of winning because he doesn’t want to become president because he’s scared of the responsibility. He knows that people are evil but doesn’t know how to deal with it. At least, that’s my theory about him.

      (The jackass is talking about a two-term governor! )
      You’re just pissed because he’s not a social conservative and has no interest in launching a new (un)Holy Inquisition.
      Tell us why he’s running.

  15. So who is the dreamiest Libertarian justice evan?

  16. Argh, evah, not evan. Freakin’ auto-correct.

  17. Speaking of Supreme Court “idols”, I’m still waiting for someone to ask Miss Snukealot this question.

    To the best of my knowledge, she has yet to throw out even one name from several decades ago. Come on, you lowlife scum in the JournoList. At least pretend to do your job.

    1. RGB is the only progressively acceptable response. They’re not asking because duh

  18. Count another screw-up from the LP in last night’s town hall.

    I’ll be voting for them. But, these guys really do make me want to pound my head into the wall.

    1. The best way is not to even listen to them. Heck, they are Libertarians….so what more do you want? Just ignore any stupid things they have to say.

      1. So vote TEAM. Makes sense.

  19. Black was a textualist and something of a proto-originalist, and more friendly to the Constitution than most of his colleagues on the bench at the time.

    Griswold was a horrible case, badly reasoned. Libtards and proggies celebrate it because they are purely results-driven, logic be damned

  20. Again – William Weld is not a libertarian.

    1. How would you know?
      Is he correct on marriage equality?

  21. Also I heard Hugo Black was once abusive to a child. Why does Weld hate children?

  22. Since these “rights” (many which I like and agree with) did NOT find a home in the 9th/10th, how are they not anything but made up?

    Progs have proven that they cannot be trusted to limit themselves but are to be given free reign when they don robes?

    1. Since these “rights” (many which I like and agree with) did NOT find a home in the 9th/10th, how are they not anything but made up?

      It was intentional, like Jefferson listing only Life, Liberty and the Pursuit of Happiness as unalienable in the Declaration. Many existed in the British Common Law which we had adopted (like birthright citizenship)..

      I always chuckle when anyone says “progs”

  23. Also, Douglas would have basically constitutionalized the Civil Rights Act of 1964, declaring that segregated private businesses couldn’t invoke the trespassing laws against races they didn’t like. Douglas also said (scroll down) that the real estate industry was a de facto branch of the government and thus housing discrimination was unconstitutional even without federal legislation.

    1. Douglas also said (scroll down) that the real estate industry was a de facto branch of the government

      Shame on you, That’s your third blatant lie about Justices and/or decisions.
      How can you live with such raging hatred?

  24. The problem is not seeing Weld’s whole quote:

    WELD: No. I don’t have a model. I would look for the best legal minds I could find and the whole person. Two of my idols on the court were Hugo Black and Bill Douglas, W.O. Douglas, who you wouldn’t have thought that they would be great justices when they got there.

    But they were broad-gauge people who saw the whole picture and they dissented in an awful lot of cases where it was 7-2 votes against them. And they said, no, this shall not stand. This is not the right thing to do. And a lot of their dissents have been borne out in history.

    He’s not focusing on any decisions, but on the justices’ style and independence (no surprise to see a range of disparate policies stemming from dissent-heavy judges). Given Weld refers so heavily to his past as a prosecutor, a focus on methodology versus policy outcome makes sense (we could compare the mixed range of outcomes of a Scalia or Thomas with the predictable votes of the Left Four on most issues before the Court; a focus on methodology/jurisprudence to one on public policy outcomes).

    One need not agree with Weld’s choices to nevertheless understand the different place that he’s coming from versus what the writers here are presuming. Whether Weld’s push for independent justices matches up with Johnson’s call for originalist judges is different ? Scalia showed that such a match is possible ? but that’s not the question alleged in Reason’s formulation.

    1. Thanks for calling out the tribe of assassins here.
      Most of this is because Johnson and Weld are not extreme socons.

  25. The problem is not seeing Weld’s whole quote:

    WELD: No. I don’t have a model. I would look for the best legal minds I could find and the whole person. Two of my idols on the court were Hugo Black and Bill Douglas, W.O. Douglas, who you wouldn’t have thought that they would be great justices when they got there.

    But they were broad-gauge people who saw the whole picture and they dissented in an awful lot of cases where it was 7-2 votes against them. And they said, no, this shall not stand. This is not the right thing to do. And a lot of their dissents have been borne out in history.

    He’s not focusing on any decisions, but on the justices’ style and independence (no surprise to see a range of disparate policies stemming from dissent-heavy judges). Given Weld refers so heavily to his past as a prosecutor, a focus on methodology versus policy outcome makes sense (we could compare the mixed range of outcomes of a Scalia or Thomas with the predictable votes of the Left Four on most issues before the Court; a focus on methodology/jurisprudence to one on public policy outcomes).

    One need not agree with Weld’s choices to nevertheless understand the different place that he’s coming from versus what the writers here are presuming. Whether Weld’s push for independent justices matches up with Johnson’s call for originalist judges is different ? Scalia showed that such a match is possible ? but that isn’t the question alleged in Reason’s formulation.

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    Heres what I’ve been doing,……… http://www.CareerPlus90.com

  27. I been beating this drum for weeks. Freedom of Association, gone. 2nd Amendment, gone. Right to privacy (read NSA) gone. Weld is hillary in drag. For Johnson to defer to him–and make it a ‘partnership presidency’ is lunacy.

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