It’s easy to make lists of the worst Supreme Court decisions of all time, and libertarians are constantly criticizing the Court for not doing enough to protect constitutional liberties. But now, libertarian lawprof Brad Smith asks for a list of the ten best Supreme Court decisions from a libertarian point of view.
As I see it, the cases on the list should 1) uphold important principles, and 2) actually have had a substantial real-world impact by preventing large-scale injustices. They should also, of course, be legally correct. Criterion No. 1 rules out a large number of Supreme Court decisions that protect only relatively minor freedoms (for instance those limiting minor instances of government endorsement of religion). Criterion No. 2 rules out many cases where the Court struck down liberty-infringing laws that were already on their way out and rarely enforced. For example, Lawrence v. Texas invalidated anti-sodomy laws, a truly barbaric form of legislation that egregiously violated the liberty of gays (and occasionally a few heterosexuals). But by 2003, when Lawrence was decided, only a few states still had anti-sodomy laws and even they almost never enforced them. For this reason, Lawrence had only a modest real-world impact. Had it been decided in 1903 or 1953, it might have had a much greater effect, though it is almost impossible to imagine the Court taking such a step at those times.
Given my criteria, the Peonage Cases of the early 1900s surely rank high, as they enabled numerous southern blacks to escape a system of forced labor and did so at a time when Jim Crow racism was at its height, and the political branches of government showed little willingness to protect black rights. Also worthy is Buchanan v. Warley (1917), which struck down racially based zoning, and helped prevent US state-imposed segregation from becoming as bad as that in South Africa under the Group Areas Act. Although it did not lead to much actual racial integration, Buchanan enabled blacks to move into many areas that would otherwise have been closed to them. David Bernstein and I discuss both the peonage cases and Buchanan in some detail in this article.
I also agree with Brad’s nomination of Schechter Poultry v. United States (1935) , which invalidated the National Industrial Recovery Act, the most sweeping effort at economic central planning in all of American history. Enacted in 1933, the NRA cartelized nearly the entire nonagricultural economy; by raising prices and wages above market-clearing levels, it also increased unemployment and lowered industrial production at a time when both were already reeling from the Great Depression. I discuss the NRA and its impact in more detail in this article (pp. 649–53). Unlike most other 1930s decisions striking down New Deal laws, Schechter was never directly overruled. And the NRA was never reenacted, though the New Deal-era Congress did go on to pass a number of ill-conceived laws cartelizing individual sectors of the economy.
As a general rule, the Court is limited by political constraints and the justices rarely act to protect individual rights or limit government power in cases where the political branches and majority public opinion are against it. The very best Supreme Court decisions tend to be exceptions to this pattern.
PatHMV says:
How is the textualist or originalist libertarian to answer this question? For example, if one believes Lawrence to be wrongly decided as a matter of Constitutional interpretation, but one supports the end result (eliminating anti-sodomy statutes aimed at criminalizing homosexuality), should one include Lawrence in the list or not?
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October 6, 2009, 11:19 amJerryT says:
Totally off topic: What are the Google advs. for stun guns and self defense doing on VC?
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October 6, 2009, 11:31 amKazinski says:
I’d have to include US vs. Lopez, while it certainly has been disappointing to see no follow through by the court, the fact that there is at least one decision on the books limiting Congress’s power is heartening.
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October 6, 2009, 11:33 amGabriel McCall says:
This blog post suggests this list of cases:
Marbury v. Madison
Lochner v. New York
United States v. E.C. Knight
Griswold v. Connecticut
Brown v. Board
Reynolds v. Sims
Mapp v. Ohio
United States v. Butler
West Virginia v. Barnette
Schechter Poultry v. United States
Reno v. ACLU
Engel v. Vitale
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October 6, 2009, 11:36 amJon Roland says:
It is difficult to limit the list to only ten. Here are some of my candidates:
Georgia v. Brailsford, 3 U.S. 1 (Dall.) (1794)
Calder v. Bull, 3 U.S. 386 (Dall.) (1798)
Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803) For the dictum.
United States v. Hudson, 7 Cranch 32 (1812)
Ex Parte Milligan, 71 U.S. 2 (4 Wall.) (1866)
Coffin v. U.S., 156 U.S. 432 (1895)
Lochner v. New York, 198 U.S. 45 (1905)
Murdock v. Pennsylvania, 319 U.S. 105 (1943)
U.S. v. Lovett, 328 U.S. 303 (1946)
Gideon v. Wainwright, 372 U.S. 335 (1963)
Hafer v. Melo, 502 U.S. 21 (1991)
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)
United States v. Lopez, 514 U.S. 549 (1995)
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October 6, 2009, 11:39 amcd says:
Lopez is a bad choice for the same reason that Lawrence v. Texas is, namely that it had very little real-world impact. Following Lopez, Congress re-passed substantially the same law, only with the caveat that the gun must have traveled in interstate commerce. Nor did it lead to any serious revision of the Court’s post-New Deal commerce clause jurisprudence.
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October 6, 2009, 11:41 amDilan Esper says:
I’ll try and stick with the premise– i.e., I’m a liberal, not a libertarian, but I will pick out cases that are meaningful to libertarians rather than liberals. Thus, I agree with Ilya’s selection of Schechter Poultry. And I agree about Buchanan and the Peonage cases. Here are seven others to round out a top ten (in no particular order):
Mapp v. Ohio (exclusionary rule)
Gideon v. Wainwright (right of indigents to counsel)
New York Times v. Sullivan (defamation suits subject to first amendment limitations)
Roe v. Wade (abortion rights)
District of Columbia v. Heller (right to bear arms is an individual right)
Tinker v. Des Moines (school students have constitutional rights)
Gitlow v. New York (the first case to incorporate the Bill of Rights against the states)
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October 6, 2009, 11:44 amCase Law says:
Almost all of the cases noted above may have had libertarian results, but they come at the expense of states rights. They have led to a national government rather than a federal government, and prevented the people from governing their states as they see fit. This is particularly true in the areas of civil rights, education, incorporation, and criminal law. States can only experiment at the margin, rather than create their own society,.
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October 6, 2009, 11:53 amDilan Esper says:
Almost all of the cases noted above may have had libertarian results, but they come at the expense of states rights. They have led to a national government rather than a federal government, and prevented the people from governing their states as they see fit.
Federalism is a perfectly respectable concern, but I am not sure it is a particularly libertarian one. You could have a system with a lot of national power but which is operationally very libertarian– indeed, with respect to civil and political rights (but not economic rights), that’s basically what we have. You could also have a system with a lot of state power which is used to anti-libertarian ends– again, you could argue that is what we had during slavery and Jim Crow.
That doesn’t mean libertarians shouldn’t support federalism; but it can’t be the first order concern in libertarian philosophy.
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October 6, 2009, 11:58 amMark N. says:
Some first-amendment ones:
Roth v. United States (1957), despite not going as far as Black and Douglas urged, held that the common-law prohibitions on “obscene” material were incompatible with the first amendment, and greatly limited the obscenity exception
Brandenburg v. Ohio (1969) greatly limited governmental attempts to restrict political speech under the cover of restricting “inflammatory” speech
New York Times v. United States (1971) set a very high bar for prior restraint of speech
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October 6, 2009, 11:59 amSome dude says:
Barbaric or not, Lawrence v. Texas was not legally correct.
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October 6, 2009, 12:03 pmLaw Student says:
Some Dude and Pathmv are right. Are we looking at OUTCOME or the PRINCIPLE the case used/declared on its way to the outcome? Makes a huge difference
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October 6, 2009, 12:08 pmShelbyC says:
Not sure what you mean by a first-order concern, but it’s a pretty important one. When you have to govts that can regulate, you have twice as much regulation.
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October 6, 2009, 12:08 pmDavid Bernstein says:
Gitlow was not an incorporation case, but what we now call a “substantive due process” case. And it wasn’t the first case to apply a right also found in the Bill of Rights to the states via the DP Clause, there was an 1897 Takings case that did that.
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October 6, 2009, 12:09 pmMartinned says:
I can work with that. I would have left Heller off the list, because I think it’s wrong. (Or rather, given that I’m not an American jurist, I should say that I view it with great suspicion.)
I’m also not sure about Mapp, since I think it overshoots the mark by imposing a drastic punishment for certain constitutional violations, thus shutting the door on the option that most other countries have chosen: throw out the evidence when this is necessary to guarantee the defendant’s right to a fair trial, and punish the prosecution with a lower sentence in case of a guilty verdict otherwise.
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October 6, 2009, 12:09 pmAnderson says:
Glad to see Dilan mentioned Roe v. Wade — I was a bit amazed by its absence.
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October 6, 2009, 12:13 pmDilan Esper says:
Professor Bernstein:
You are nit-picking. Professor Somin wanted influential decisions, and Gitlow was influential and often cited on incorporation issues.
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October 6, 2009, 12:14 pmShelbyC says:
Aren’t all incorporation cases substantive due process cases, even if they’re not called that?
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October 6, 2009, 12:23 pmAllan says:
From a libertarian perspective, how could you not include Roe v. Wade and Griswold v. Connecticut?
And then there is Pollock v. Farmers’ Loan & Trust Co., which declared the income tax illegal.
I would include Brown v. Board and maybe Heart of Atlanta, both of which restricted some people’s right to discriminate, but opened the door for many, many more not to be discriminated against.
Any fourth amendment case for the defendant falls in the list, such as Mapp. And, certainly restricting the ability of government to coerce confessions or try a person without counsel is a good thing from a liberterian perspective, so I would include Miranda and Gideon.
NY Times v. Sullivan would be up there.
Heller would also be there (although, it does not arguably qualify, as it does not involve a major right).
Lopez would be up there, had it not been eviscorated by subsequent decisions. It could have led to the overruling of Wickard.
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October 6, 2009, 12:24 pmyankee says:
I’m not sure this is accurate. Although prosecutions under those laws were rare, they had substantial ancillary effects. Sodomy laws were regularly used as grounds for refusing to enforce contracts or invalidate wills and other legal documents designed to protect couples’ rights. As the underlying relationship was illegal, enforcing legal arrangements designed to protect it was a violation of public policy, like enforcing a contract for the sale of illegal drugs. They were also used as grounds for denying child custody, especially to a parent living with a same-sex partner.
Now that the anti-sodomy laws have been struck down, the freedom of gays and lesbians has been greatly increased.
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October 6, 2009, 12:30 pmuh_clem says:
CaseLaw:
Maybe I’m missing something, but limiting state or local government’s ability to infringe on individual rights would seem to be a very positive thing from a libertarian perspective.
We are talking about individual liberty aren’t we, as opposed to the ability of a local municipality to restrict the freedom of its inhabitants?
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October 6, 2009, 12:37 pmAdam Kamp says:
Why wouldn’t Roe v. Wade be included? Presumably because, as Professor Somin noted, that case also has to be legally correct, and I just can’t bring myself to think of it that way. And I’m a pro-choice quasi-progressive. But it’s sort of a crazy decision.
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October 6, 2009, 12:38 pmyankee says:
Also, I’m very surprised by the absence of Brown v. Board and its progeny. Is the problem that the Southern policy of “massive resistance” greatly reduced the effect of those cases?
Most libertarians oppose the existence of government schools entirely, but surely nondiscriminatory government is much better, from the point of view of liberty, than the massive system of discrimination at all levels of government that existed during the Jim Crow era. The Supreme Court later authorized some forms of affirmative action, which many libertarians oppose, but e.g. an admissions preference for nonwhite applicants at government universities is nothing compared to the total ban on black attendance under Jim Crow.
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October 6, 2009, 12:45 pmLibertarian Victories at the Supreme Court - Hit & Run : Reason Magazine says:
[...] Smith, George Mason University legal scholar (and Reason contributor) Ilya Somin nominates a few of his candidates for “best Supreme Court decisions from a libertarian point of [...]
Allan says:
Adam,
You raise an excellent point, you don’t think Roe v. Wade was legally correct. So, perhaps it should not be included.
On the other hand, there are at least two views on how a matter should be decided in every case. One of those views, necessarilly, will not prevail. That is, whether a case is “legally correct” is very subjective.
Take Heller, for example. I think it was wrongly decided because the 2nd Amendment pertains to collective, not individual, rights. On that basis, it should not be included?
Perhaps we are engaging in the equivilant of moral relativity in this exercise.
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October 6, 2009, 12:48 pmspudbeach says:
Why not Loving v. Virginia? A substantial decision, fully consistent with libertarian principles, legally right, and a guidepost for the future (Gill v. Office of Personnel Management anybody???).
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October 6, 2009, 12:50 pmyankee says:
Yes; state and local governments can be just as oppressive as the federal government. To take the obvious example, slavery was a matter of state property law and the totalitarian Jim Crow system was instituted by state and local government. The federal government helped in some regards (such as with the Fugitive Slave Act) but state and local governments were the principal offenders.
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October 6, 2009, 12:52 pmJust a Thought says:
I don’t want to deflect this thread into an abortion debate, but some might say that Roe v. Wade is the absolutely worse case from a libertarian point of view considering how it drastically limited the fundamental right to life of a certain group of human beings.
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October 6, 2009, 1:06 pmAllan says:
Just a Thought,
Nice point. I guess, sometimes, it depends on which group’s perspective you are coming from to determine whether the decision is good or bad from a libertarian perspective.
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October 6, 2009, 1:15 pmXmas says:
Hustler Magazine vs. Falwell??
(Oh come on, who couldn’t enjoy the fun of citing that case)
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October 6, 2009, 1:19 pmMark N. says:
While trying to dig through cases to jog my memory, a meta-level question presented itself: where are there good lists of important/influential Supreme Court decisions? Wikipedia has a terse and somewhat idiosyncratic list here. In book form, is this summary of 350 landmark cases a good one? Is there something better?
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October 6, 2009, 1:26 pmTimothy Sandefur says:
In no particular order...
1. Dartmouth College v. Woodward
2. Charles River Bridge v. Warren Bridge
3. Marbury v. Madison
4. Cummings v. Missouri
5. W.Va. Bd. of Ed. v. Barnette
6. Tinker v. Des Moines
7. McCreary County v. ACLU
8. Yick Wo v. Hopkins
9. Loving v. Va.
10. Brown v. Bd. of Ed
Runner up: Worcester v. Georgia
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October 6, 2009, 1:28 pmCase Law says:
I am pointing out the tension between libertarianism and federalism. I am all for libertarianism, but it must come from the people, not from a dictatorial judiciary. If the local community, wish to restrict their own behaviour or impose their values through their local government, it is not for a judge to decide. Libertarianism should come from the governed, not the governors. Otherwise libertarians are just as bad as left (and right) wing activists who use the court to impose their policy preferences that could not win at the ballot box.
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October 6, 2009, 1:30 pmLeft Coast Conservative says:
On Heller: I do not understand why the collective right view still prevails, unless it is due to a misunderstanding of the word “militia” in the preamble on the amendment. Many people seem to think that is means the “National Guard”, which cannot be true for two reasons: the National Guard did not exist in 1797, and the word “militia” was understood then, and defined today in Federal law as all able bodied male citizens between certain age limits.
That definition of “militia” is still on the books, and in 1797 the members were obliged to furnish their own arms, hence the individual right embodied in the 2nd amendment.
All of this is more thoroughly explained in the Heller decision, as everyone here knows. Heller may be legally incorrect, but I have not seen a legal proof as to how, and it does protect a fundamental individual right.
I also think Loving v. Virginia is important. I cannot believe that Loving would not be cited in a case requesting federal recognition of same-sex marriages.
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October 6, 2009, 1:37 pmHerb Spencer says:
I like Loving, but can’t abide Gideon or understand why it would be on a Libertarian’s pick list. The merits of providing a free — read, taxpayer-funded — defense to indigent accused aside, Gideon was as rash an act of judicial lawmaking as the Warren Ct. ever engaged in. The Libertarian approach would have been to stand aside and let the people, directly or thru their elected representatives, legislate such a “right,” which is nowhere found in the Constitution, if they felt a need for it. But that never happened, and its effects — crowded dockets, frivolous defenses, serial appeals, and, worst of all, an emboldening of criminal behavior — have been with us ever since. Sorry, but Gideon is at the top of my worst list, followed closely by Thompson v. Shapiro, which, thankfully, hasn’t been cited here ... yet.
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October 6, 2009, 1:48 pmDilan Esper says:
I don’t want to deflect this thread into an abortion debate, but some might say that Roe v. Wade is the absolutely worse case from a libertarian point of view considering how it drastically limited the fundamental right to life of a certain group of human beings.
Actually, to the extent that libertarians value individual freedom over almost everything else (e.g., give me liberty or give me death, those who trade liberty for security deserve neither), even if one were to assume the quite disputable claim that zygotes, embryos, and fetuses have a right to life, I’m not sure that’s a particularly libertarian concern, especially when prohibiting abortion constitutes such a huge and direct imposition on the freedom of women.
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October 6, 2009, 1:49 pmDilan Esper says:
I am pointing out the tension between libertarianism and federalism. I am all for libertarianism, but it must come from the people, not from a dictatorial judiciary. If the local community, wish to restrict their own behaviour or impose their values through their local government, it is not for a judge to decide. Libertarianism should come from the governed, not the governors. Otherwise libertarians are just as bad as left (and right) wing activists who use the court to impose their policy preferences that could not win at the ballot box.
So you oppose the Bill of Rights, then.
Again, local control isn’t particularly libertarian or anti-libertarian– it’s a different value set.
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October 6, 2009, 1:51 pmDilan Esper says:
The merits of providing a free – read, taxpayer-funded – defense to indigent accused aside, Gideon was as rash an act of judicial lawmaking as the Warren Ct. ever engaged in. The Libertarian approach would have been to stand aside and let the people, directly or thru their elected representatives, legislate such a “right,” which is nowhere found in the Constitution, if they felt a need for it. But that never happened, and its effects – crowded dockets, frivolous defenses, serial appeals, and, worst of all, an emboldening of criminal behavior – have been with us ever since. Sorry, but Gideon is at the top of my worst list, followed closely by Thompson v. Shapiro, which, thankfully, hasn’t been cited here … yet.
Again, I’m trying to think like a libertarian for this comments thread, but thinking like one, I think you miss the point of Gideon.
Yes, if you think that PROPERTY RIGHTS trump all other values, I can see how Gideon seems wrong. But that’s really not what libertarianism is all about. People who think property rights are important but other liberties are not are conservatives, not libertarians.
And here’s the thing– appointed lawyers are a very important protection against the state being able to lock poor people up (or execute them) willy-nilly. In other words, appointed lawyers protect the fundamental liberty of poor people. So, from a libertarian perspective, is it worth paying slightly higher taxes (and I emphasize, slightly higher) so that innocent poor people can’t be thrown into jail as easily? I suspect most libertarians would say yes, and that many who would say no would be better classified as conservatives.
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October 6, 2009, 1:55 pmJeff R. says:
Since (oddly enough) nobody else has mentioned it yet, Sony vs Universal probably belongs on the list.
(Me, I’d dodge the Roe issue entirely by including Griswold vs. Connecticut and then claiming that it occupies the reproductive freedom slot on the top 10 list...)
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October 6, 2009, 1:59 pmJoel Jacobsen says:
Did the peonage cases have any real-world effect at all? I’m not challenging, just wondering–I don’t know the answer. Debt slavery certainly hadn’t disappeared by the 1920s and 1930s, so I suspect if the Supreme Court’s rulings had any effect at all it was on the margins. For us lawyers, the Supreme Court’s words are the real thing, because they’re what we have to deal with in our professional lives. For everyone else, though, they are sometimes as empty as any other political actor’s fine words.
There’s also a built-in irony in using the courts to enforce small government, because courts that exercise that power are, by definition, expanding the reach of government. For instance, when the Second Circuit considered the constitutionality of a middle school dress code (Guiles v. Marineau, 461 F.3d 320 (2d Cir. Vt. 2006)), the action represented either (a) the courts protecting civil liberties from infringement by the executive branch, or (b) the federal government asserting control over a Vermont school district, expanding its reach at the cost of the partially-disenfranchised locals. The first is what the judges said, and therefore it’s the only thing that counts for lawyers. But the second is what they did.
Federal judges’ use of the phrase “the government” to mean something besides themselves is a kind of subliminal advertising. By constant repetition it’s hypnotized much of the legal profession.
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October 6, 2009, 2:01 pmCase Law says:
So you oppose the Bill of Rights, then.
Only to the extent they are applied to the states and local governments. The Bill of Rights say “Congress shall make no law . . . .” not “Congress and the States shall make no law ....” The several States did exist at the time of the Bill of Rights, and if Congress wanted the Bill of Rights to apply to the States it should have said so. The States at that time certainly didn’t expect the Bill of Rights to apply to them. And if the framers of the 14th Amendment intended for the Bill of Rights to apply to the states, they sure didn’t state that explicitly. All this incorporation is guess work on the “intentions” of the framers, not the plain language of the Constitution.
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October 6, 2009, 2:08 pmBrett Turner says:
> Lawrence had only a modest real-world impact.
In a narrow legal sense, maybe. But Lawrence was a pretty big step toward increased public recognition that it is not a crime simply to be gay or lesbian. And that step is leading to greater protection for gay and lesbian people across the board, including the move toward recognizing gay marriage. It’s too early to tell, but looking back fifty years from now, Lawrence might seem very important indeed.
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October 6, 2009, 2:22 pmSoronel Haetir says:
If it were read honestly I would have put United States v. Miller (1939) on this list, but afaik no court ever has, even to the point that Miller was never actually convicted.
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October 6, 2009, 3:10 pmThales says:
“Case Law”: “No State shall make any law which shall abridge the privileges or immunities of citizens of the United States[e.g., the Bill of Rights, habeas corpus, certain other rights, etc.]” That sounds like pretty plain language to me.
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October 6, 2009, 3:12 pmDavid M. Nieporent says:
No; the First Amendment says that. The rest of the Bill of Rights does not. The Fourth, for instance, speaks of the right of the people, not the identity of the government doing the infringing.
They kind of did, actually. They made clear that this is what they meant by P&I.
As for your underlying argument, there’s certainly a tension between libertarianism and democracy, yes. And for a libertarian, the former is more important than the latter.
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October 6, 2009, 3:19 pmNathan says:
Youngstown might be an interesting case to think about.
Maybe it fails the “legally correct” requirement because the opinion itself is a train-wreck with so many concurrences it is hard to know why the Court did what it did, but the general thrust against abuse of Executive power should lift Libertarian hearts.
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October 6, 2009, 3:56 pmNathan says:
Republican Party of Minnesota v. White is another favorite of mine.
Not sure if it is influential enough and I can see how some people may not like judicial elections (I happen to like them) but if you care about free speech in campaigns it is a good decision...
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October 6, 2009, 4:06 pmYMR says:
I am surprised nobody has mentioned the Civil Rights Cases, which perhaps more than any other case represent the public-private distinction — absolutely central to libertarian theory.
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October 6, 2009, 5:24 pmAnon21 says:
It doesn’t technically count, because it’s a dissent, but I think Justice Scalia’s paean to habeas corpus in his opinion in Hamdi v. Rumsfeld may one day be ranked as one of the classics of libertarian con law, despite his “anything goes” attitude towards non-citizen detainees in subsequent cases. Obviously it had no immediate impact, but it is a very powerful statement of the very compelling reasons behind one of the most basic and important rights that our Constitution protects.
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October 6, 2009, 5:29 pmSoronel Haetir says:
If you are thinking of Heart of Atlanta and other public accommodation cases I would think the answer fairly obvious. Private discrimination should be legal, therefore the court reached the wrong legal outcome.
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October 6, 2009, 5:32 pmAnon21 says:
No, he’s talking about the Civil Rights Cases.
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October 6, 2009, 5:35 pmYMR says:
Quite the opposite. http://en.wikipedia.org/wiki/Civil_Rights_Cases
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October 6, 2009, 5:36 pmStamper says:
Crawford v. Washington (2004). The case cleared-up some of the mess within the Court’s Confrontation Clause jurisprudence and it takes a literal interpretation of the 6th Amendment. It has been fairly important as noted by its growing progeny.
Ex Parte Young (1908) I considered this case, but changed my mind due to the Federalism issues.
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October 6, 2009, 6:39 pmChrisTS says:
Second!
Of course it is always difficult to pick ‘just ten.’ Imagine how much worse it would be if Ilya had asked us to pick “the one most.” (I say this as a person who cannot pick a single ‘favorite’ color, band, movie, shrub...)
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October 6, 2009, 6:59 pmChrisTS says:
And the men who are married to/involved with those [pregnant] women.
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October 6, 2009, 7:04 pmChrisTS says:
Dilan at 38: (all this quoting is getting out of hand)
I think your take on libertarianism is correct. I would rephrase what you have to emphasize the individualism of libertarian thought:
“People who think property rights are important but other individual liberties are not are conservatives, not libertarians.”
Contemporary U.S. ‘conservatives’ are pro-property rights but in favor of collective control in other matters.
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October 6, 2009, 7:14 pmCornellian says:
Marbury v. Madison by a landslide.
Without Marbury the Republic would be unrecognizable. Supreme Court decisions would be little more than advice to the other two branches to be disregarded on a whim. Such a scenario would be completely at odds with the notion of the Bill of Rights as a limitation on government.
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October 6, 2009, 7:20 pmJ. Aldridge says:
I would put Lawrence v. Texas on the worst list for the simple reason the court had no factual jurisdiction to invalidate such a law (they used fictional jurisdiction concocted by the court).
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October 6, 2009, 7:23 pmNickM says:
How about Tumey v. Ohio?
Nick
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October 6, 2009, 7:23 pmChrisTS says:
David Nierpoint:
Perhaps, ‘there is a tension between majoritarianism and individual rights’?
I find the idea that local populations should be free to oppress individuals – while federal systems should not interfere with those local majorities – about as anti-libertarian as one might imagine. Anti-liberal, more broadly.
To me, one of the most appealing features of U.S. style ‘liberalism’ is its resistance to the tyranny of local majorities. This is yet another reason that I do not understand U.S. libertarians’ current affinity with/to U.S. conservatism; if the latter insists on the ‘right’ of local majorities to abuse individuals, why would any libertarian align him/herself with such views? I ask this rhetorically; I do not intend to lead the thread OT.
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October 6, 2009, 7:27 pmChrisTS says:
At #56, it should be ‘ARE conservatives, not libertarians.’
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October 6, 2009, 7:29 pmCornellian says:
Federalism is a perfectly respectable concern, but I am not sure it is a particularly libertarian one. You could have a system with a lot of national power but which is operationally very libertarian– indeed, with respect to civil and political rights (but not economic rights), that’s basically what we have.
Precisely. Libertarianism doesn’t automatically entail a federal system. It’s quite easy to imagine a unitary state in which there is only one level of government instead of two, and within which individuals enjoy much greater liberty than they do now. In smaller, more homogeneous countries like Iceland or Norway, federalism makes little sense even if you’re a libertarian.
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October 6, 2009, 7:36 pmJ. Aldridge says:
The court has never found even a half-decent “intention” of the framers to support incorporation against state citizens under their own state constitutions! Read the debates and newspapers at the time and you will find it was all about the treatment of “out of state citizens” and not states own citizens.
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October 6, 2009, 7:36 pmAnon21 says:
Um, what? Are you disputing that SCOTUS has statutory appellate jurisdiction over appeals from a state’s highest court where a question of federal law is raised?
And even if it’s true that SCOTUS did not have jurisdiction (which it did), does that merit labeling it one of the worst decisions of all time from a libertarian perspective? Or are you confused about the object of this exercise?
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October 6, 2009, 8:09 pmJ. Aldridge says:
Oh I forgot, congress can enact whatever federal law they please under any territorial jurisdiction.
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October 6, 2009, 8:38 pmjellis58 says:
So its not really a “libertarian” case but Martin v. Hunter’s Lessee is one of my favorite ever. It just seems to have everything you could imagine: a real estate dispute, the american revolution, a treaty interpretation, a federalism fight, an article III issue, etc. I think fully understanding that case should be a substitute for passing the bar. Also it would be cool if Hollywood made a movie of the case. (after it is done defending child rapists)
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October 6, 2009, 8:45 pmRandy says:
“But by 2003, when Lawrence was decided, only a few states still had anti-sodomy laws and even they almost never enforced them. For this reason, Lawrence had only a modest real-world impact. Had it been decided in 1903 or 1953, it might have had a much greater effect, though it is almost impossible to imagine the Court taking such a step at those times.”
Not at all true! Lawrence indeed had a major real world impact upon gays. (Now, if you are straight, I can understand why you would think it had no real world impact — because you weren’t affected!). Here are just a few: a lesbian who was about to be appointed a judge in Virginia was denied her appointment because a state senator said that if she is a lesbian, she will be breaking the law, and we can’t have any judges in Virginia who knowing break the law. He got her blocked. Another case: A woman was hired in the DA’s office for Alabama. When she asked for her starting date to be moved so that she could get married, and the DA found out that she was marrying another woman, he revoked the offer. His explanation was that you can’t enforce the law if you are breaking it. (I wonder how these gentlemen would argue that lesbians are committing sodomy, but of course it didn’t matter what the law actually said, it was interpreted against all homosexuals, even celebate ones).
In general, the law was used against divorced parents seeking custody of the children, because you can’t have a child in the custody of a criminal. Gays were denied jobs because they would be criminals.
In the 50s and 60s, police would raid gay bars routinely, and then arrest and charge the people with violation of the sodomy laws. Now, for the rest of their lives, (in some instances) they are considered ‘sex offenders’ and must register where they go. These laws were used to intimidate gays and keep them from going to bars or otherwise congregating. It had a huge impact on keeping gays in the closet.
As a holder of several stocks, I recall that there were many stockholder initiatives throughout the 90s asking for corporation shareholders to vote to rescind their non-discrimination policies with regards to sexual orientation. The reason was that the corporation operated in many states, many of which declared homosexuality illegal. Therefore, the corporation should not be promoting something that is actually illegal. I don’t think these initiatives got anywhere, but they were attempted in most major corporations.
Yes, the law wasn’t used against gays very much, but it certainly was used against Mr. Lawrence, which was why the case was a “controversy.” But several of the states actually applied the anti-sodomy laws to both gay and straights, and yet I can’t find a single instance of it being applied to straight people.
Ultimately, the law was used as a weapon against gay people where possible. By removing that weapon, and the *threat* of the weapon (which is at least as important as actually using the weapon, and has very real world implications, even if they are difficult to measure), it was a huge step towards allowing gays everywhere to lead a normal life, one as normal as straights.
The police raided a gay bar in Fort Worth on the 30th anniversary of Stonewall, beat one person to unconsciousness, and made only a handful of arrests. In Atlanta, police raided another gay bar, held the bar in lock down for several hours, searched all patrons, and couldn’t find a single reason to arrest even one of them. In both states, there were anti-sodomy laws, and in both states, pre-Lawrence, the police would have been able to arrest them all on sodomy charges. Heck, if you admit you are gay, then obviously at some point you must have had sex with another man, so you are guilty, right? That would be enough to cow the gay community. Today, however, it is not, and because of Lawrence, gays can have a drink with their friends and even if the bar is raided, they won’t be automatically arrested and have that publicized to everyone.
Sure, none of this affects you, Prof. Volokh. Thank your lucky stars it never did. But ask a gay person who lived in one of these states, and you will find a very different story. Lawrence had a dramatic effect upon the everyday lives of gays in all those states. And that means it also affected gays in all the other states as well.
No question: Lawrence meets all your criteria for inclusion in your list.
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October 6, 2009, 9:12 pmRandy says:
Furthermore, Lawrence was a reversal of Bowers v. Hardwick. In Bowers, the Court blithly dismissed the notion that gays had rights at all. The opinion drips with contempt for gay people. Lawrence not only reversed the decision, but also reversed the tone and attitude. For the first time, in strong and clear language, the Court said that gay people deserve respect from the Court as much as anyone else. Mere ‘animous’ is not enough to discriminate (as Justice O’Connor said in an earlier case, and amplified in Lawrence).
Did this have a real world impact upon gays? You bet. In case after case, whether it be federal or state, courts have adopted the new attitude. Judges are now forced to read Lawrence and follow it. Rarely, prior to Lawrence, did state supreme courts say that gays should be treated equally to straights, or that they can’t automatically be considered immoral or illegal. After Lawrence, the tone has seeped into countless decisions. Those judges who still cling to irrational prejudice are now forced to at least come up with something to justify their discrimination, which gets harder and harder (Judge Scalia notwithstanding). Before Lawrence, they didn’t have to — they could just cite to Bowers.
So again, yes, court decisions, no matter how small or insignificant, all across America have become much more favorable to gays. Because of that, attorneys and litigants are forced to deal with gays as they do straights, and that is no small achievement.
When I first read Lawrence, I had tears streaming down my face. Why? Because for the first time, a really important court said I have rights, and I must be counted equally in America. But I also had tears for the fact that it was necessary for the court to say this. Sometime, go ahead and reread Lawrence, but this time replace gayswith Blacks, or Italians, or the Disabled, or the Native American. See how silly it sounds. Imagine that, in 1990s America, it was necessary for a court to have to say that gays are first class citizens like anyone else. Silly, yes; necessary, absolutely. That’s the real world impact.
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October 6, 2009, 9:32 pmyankee says:
A supposed lack of jurisdiction is enough to put a decision expanding liberty on the “worst of all time” list? Up there with Plessy, Dred Scott, and Korematsu? If you think that you are no friend of liberty.
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October 6, 2009, 9:47 pmRandy says:
Finally, you ignore what would have likely happened if Lawrence was never decided, or went the other way. The religious right and other anti-groups, as we know, were using these laws to get publically traded corporations to rescind their policies of non-discrimination against gays. Do you honestly think that they would have stopped there? Of course not! Mere rescission wasn’t the goal — the goal was remove gay rights where ever they could be found. If a corporation did actually change its policy, then it would be easy to fire any person simply because they are gay.
There would be ballot fights for any openly gay person who runs for office — how can you have someone who willingly flaunts the law run for office? We would have court rulings on that issue — what would be the outcome of those?
There would be attempts to fire any openly gay person from holding any government job in those states. “Oh no, we’re not anti-gay bigots! We just believe that if you hold an office of public trust, or you are paid by the state, then you must obey state laws. It’s all about respect for the law!”
The cost and disruption of lives trying to defend against these attacks would be immense, but the anti-gays were gearing up to do just that. No, the anti-sodomy laws themselves weren’t used against gays very often (although I think that if they were ever used against you, you would find that one time too many), but they would be the weapon of choice to harass anyone who happened to be openly gay and in the crosshairs.
When you consider ‘real world impact,’ you must consider what Lawrence averted. And what it averted is incalculable.
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October 6, 2009, 9:50 pmRandy says:
J.A: ” would put Lawrence v. Texas on the worst list for the simple reason the court had no factual jurisdiction.”
Factual jurisdiction? What’s that, a new term coined by Fox News?
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October 6, 2009, 9:54 pmRicardo says:
Many of the civil rights decisions come from an era in which some local governments and at least one state government (Indiana) were controlled by an organization engaged in domestic terrorism, the Ku Klux Klan. Preventing terrorists from holding positions of government authority strikes me as the clearest argument you could possibly make for granting the federal government more power.
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October 6, 2009, 10:27 pmGuy says:
I’ve also got to ask... what? I’m gonna need a little help to follow your logic train. The Costitution says “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution”. The only argument against jurisdiction I can think of would involve invoking the Eleventh Amendment. But the Fourteenth Amendment limits the Eleventh, and even if you think it doesn’t, why pick on Lawrence v. Texas? Why not virtually any other Fourteenth Amendment case? If this isn’t what you mean, please explain what you do mean.
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October 7, 2009, 2:01 amRicardo says:
Wouldn’t crowded dockets come from the fact that the government assigns taxpayer-funded prosecutors to cases? When one side in a legal case has the resources of taxpayer-funded government behind him while the other has only the resources contained in his pockets, who do you think will win most of the time? You seem to suggest that “frivolous defenses” and “serial appeals” ought to a privilege of the upper-middle classes and the wealthy exclusively.
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October 7, 2009, 4:49 amWidmerpool says:
I agree with the prior commentators that Lawrence v. Texas did and does have a substantial real-world impact. Just as one example, the debate about gay marriage is unthinkable without Lawrence v. Texas. That decision was the catalyst for the debate. If one does not accept this result, then Brown I also should be seen as inconsequential because it did not directly change the states’ behavior until Brown II came along. But that’s a very narrow focus–Brown I changed the culture, which tends to be a much more profound real-world impact. Lawrence v. Texas has changed the culture, too.
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October 7, 2009, 7:32 amWednesday Round-up | SCOTUSblog says:
[...] the Volokh Conspiracy has compiled a list of what it considers some of the most important decisions by the Court, in response to professor [...]
JD says:
Two cases that are probably controversial in this neck of the woods, but I would say expand liberty:
Goldberg v. Kelly (or Mathews v. Eldridge, something in that line): Say what you will about the expanding definition of property rights, but the idea that the Government can’t take your property without some sort of adequate hearing seems to me a cornerstone of liberty.
Brown v. Allen: Made it much harder, at least for a while, for a state government to throw someone in jail without giving them a fair trial. (Some say it made it too hard to throw someone in jail *with* a fair trial, as well, but that’s a different debate.)
Also, re: Martinned’s comment a ways back about how other countries reduce sentences instead of excluding evidence — That’s actually pretty uncommon, although becoming a bit more well-established. I did some research on this a few years back, and if I remember right, Canada does it occasionally, as do ICTY and ICTR, but that’s pretty much it. (I think I’m forgetting one other notable country — maybe Germany?) At least one district judge has done so in the states; we’ll see if it picks up any traction.
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October 7, 2009, 10:10 amGabriel McCall says:
A libertarian who sees unborn children as persons/rightsholders would make the argument that laws against killing people are not an imposition on the liberty of the would-be killers: there is no natural right to violate others’ natural rights, and that point defines the boundary between liberty and license.
With that said, though, libertarian theory as such is silent as to when a developing human becomes a person/rightsholder, and there are libertarians who hold the entire spectrum of views on that subject. That being so, Roe v Wade is not a specifically libertarian nor antilibertarian case.
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October 7, 2009, 10:39 amJon Roland says:
We have a spreadsheet of milestone decisions here.
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October 7, 2009, 10:47 amGabriel McCall says:
If your goal is to prevent evil people from seeking and obtaining positions of great power, creating more positions with more power doesn’t actually accomplish that goal as well as you might think. Ever hear of the old woman who swallowed a fly?
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October 7, 2009, 10:52 amJon Roland says:
That’s a definition of a subset of a polysemous meaning: those who had an enforceable legal duty to respond to an official call-up. The original meaning of the word translates as “defense activity” or “defense service”, and only secondarily as “those engaged in defense activity”, or “those having a duty to engage in defense activity”. The social contract discussed by Locke and the Founders is a mutual defense compact, creating a duty of mutual defense for all the members of society. Subsets of that society might have special legal obligations, as the most fit and as a body that was expected to be sufficient for most foreseeable situations, but in principle it is everybody, both individually and collectively.
So there is an (individual) right to keep and bear arms, but it is also a duty to defend the community. We have a right to do our duty, but the duty is paramount.
“Self-defense” is then a special case of defense of the community, where the member of the community is oneself, the defender is also oneself, and one is responding to a call-up issued by oneself to oneself.
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October 7, 2009, 11:04 amJon Roland says:
I’m not including Heller in my list because of its narrow application and dangerously faulty dicta. If McDonald v. City of Chicago is decided correctly (against Chicago) that case will make my list.
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October 7, 2009, 11:57 amOren says:
But the point of incorporation is to remove from State regulation those laws that impinge on the liberty protected by the 14th (a move that would not be necessary if the States could enforce their own Constitutional protections).
For my top-few, I’m going to go with the oldie double-whammy of Meyer v. Nebraska and Pierce v. Society of Sisters (1923 and 1925, respectively). The right to educate your own children in whatever language and school you want is so fundamental I’m embarrassed that the States of NE and OR would dare to pass legislation forbidding it.
As to impact, both have been cited more than 100 times since in support of the proposition that State power is not a blank check to impinge on the rights of citizens in any fashion the legislature can concoct.
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October 7, 2009, 12:29 pmOren says:
The proper response to serial-appeals is to do the trial right the first time. The States spend millions on appeals for IAC that would have been must better dealt with by providing adequate counsel the first time around.
IOW, I’m very sympathetic to the concern that we waste time rehashing old cases but I think the solution lies in improving the hashing the first time.
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October 7, 2009, 12:32 pmDavid Nieporent says:
That’s rather misleading; it implies that the reason for IAC claims is because of inadequate counsel, rather than because convicted defendants don’t have anything to lose and because some courts like second-guessing.
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October 7, 2009, 2:00 pmDilan Esper says:
With that said, though, libertarian theory as such is silent as to when a developing human becomes a person/rightsholder, and there are libertarians who hold the entire spectrum of views on that subject. That being so, Roe v Wade is not a specifically libertarian nor antilibertarian case.
This is wrong, because the liberty interests of the woman (and, as someone pointed out, her male partners as well) are very much furthered by the decision. Indeed, legal abortion is a key part of making sexual freedom possible, especially for women.
Those libertarians who contend that the fetus has rights that trump those of the woman, I suspect, in many instances are not valuing sexual freedom highly enough. And while concern for fetal life isn’t, in isolation, anti-libertarian, believing female sexual freedom to be unimportant is quite anti-libertarian.
Pro-lifers are generally conservatives, not libertarians.
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October 7, 2009, 2:16 pmDilan Esper says:
With that said, though, libertarian theory as such is silent as to when a developing human becomes a person/rightsholder, and there are libertarians who hold the entire spectrum of views on that subject. That being so, Roe v Wade is not a specifically libertarian nor antilibertarian case.
This is wrong, because the liberty interests of the woman (and, as someone pointed out, her male partners as well) are very much furthered by the decision. Indeed, legal abortion is a key part of making sexual freedom possible, especially for women.
Those libertarians who contend that the fetus has rights that trump those of the woman, I suspect, in many instances are not valuing sexual freedom highly enough. And while concern for fetal life isn’t, in isolation, anti-libertarian, believing female sexual freedom to be unimportant is quite anti-libertarian.
Pro-lifers are generally conservatives, not libertarians.
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October 7, 2009, 2:54 pmDilan Esper says:
I’m not including Heller in my list because of its narrow application and dangerously faulty dicta. If McDonald v. City of Chicago is decided correctly (against Chicago) that case will make my list.
You know, gun rights maximalists can say how narrow and meaningless Heller was a million times and it doesn’t make it true. The fact is, having an individual right that precludes gun prohibitions– even if it permits lesser regulations– is extremely important, not the least because it prohibits the type of wholesale governmental gun confiscation that gun rights groups are always claiming they are worried about.
Heller is a meaningful case. Indeed, if it is not overturned by some later Supreme Court, I would predict that it is remembered as a watershed.
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October 7, 2009, 2:58 pmPubliusFL says:
To which the response is: Those libertarians who contend that the woman has rights to sexual freedom that trump the right of the fetus to life, I suspect, in many instances are not valuing the right not to be killed highly enough. You lose all your other rights when you’re dead. You’re right that most pro-lifers are more conservative than libertarian, but there are plenty of libertarians who do believe sexual freedom to be important while not holding it dearer than life itself.
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October 7, 2009, 3:16 pmPeter says:
I nominate wilson v new, which upheld the Adamson Act, a fed law that set the eight hour day of rr employees, not because of the maj decision, but because of the dissent of justice pitney.
The law’s effect was to require time and a half for hours worked above and beyond the 8 hour limit.
Pitney explained that there is no reason to assume that higher wages promote safer rr’s (and thus facilitate interstate commerce).
pitney saw the law for what it was: an assist to a rent seeking railroad union.
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October 7, 2009, 3:43 pmDilan Esper says:
o which the response is: Those libertarians who contend that the woman has rights to sexual freedom that trump the right of the fetus to life, I suspect, in many instances are not valuing the right not to be killed highly enough. You lose all your other rights when you’re dead. You’re right that most pro-lifers are more conservative than libertarian, but there are plenty of libertarians who do believe sexual freedom to be important while not holding it dearer than life itself.
I have met and talked to very few pro-lifers who attached ANY value to female sexual freedom. It just happens that anti-abortion viewpoints correlate pretty precisely with anti-feminism.
There are certainly people who CLAIM to be pro-life and libertarian, but in practice, that’s not really common.
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October 7, 2009, 3:52 pmDavid Nieporent says:
Sure, but only because you persistently, mistakenly, equate feminism with sexual libertinism, thus creating a tautology.
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October 7, 2009, 6:15 pmDilan Esper says:
David:
A LEGAL SYSTEM that protects the interests of women in being sexual libertines if they wish to is an absolutely crucial component of feminism.
I don’t, however, equate any particular theory of female sexuality with feminism. There are feminists who are quite anti-heterosexual sex (Catherine MacKinnon and the late Andrea Dworkin come to mind), but even those who have a more restrictive outlook on ideal female sexuality still support abortion rights because they know how awful an unwanted pregnancy is for women.
And my point stands– pro-lifers tend to think not only that having a libertine outlook on sexuality is bad for women but that having THE FREEDOM to have a libertine outlook on sexuality if one wants to is bad for society (and perhaps women) and that freedom should be taken away.
And that is simply not libertarian.
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October 7, 2009, 6:21 pmOren says:
You haven’t spent much time around the State criminal courts have you? You could indict and convict a ham sandwich in most counties, even if the charge was being a turkey sandwich.
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October 7, 2009, 6:33 pmDavid Nieporent says:
Yes; the problem is, you’re having both sides of the argument. Pro-lifers tend to think that what they view as baby killing is bad. The notion that it’s about keeping women from having sex is something that only liberal-feminists say.
Of course, being pro-life doesn’t keep women from having casual sex; it just means that there may be consequences.
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October 7, 2009, 6:38 pmDilan Esper says:
Yes; the problem is, you’re having both sides of the argument. Pro-lifers tend to think that what they view as baby killing is bad.
The problem with this is, if “baby killing” were the issue, then there would be plenty of pro-lifers who supported contraception, sexual freedom, the sexual revolution, gay rights, etc. But there aren’t. (See Kristen Luker, Abortion and the Politics of Motherhood.)
That STRONGLY suggests that the actual motivations of pro-lifers have to do with more than “baby killing”.
Of course, being pro-life doesn’t keep women from having casual sex; it just means that there may be consequences.
David, you just gave the game away. You see, being pro-life is about attaching one specific CONSEQUENCE– unwanted, life-ruining pregnancy– to sex. And that has nothing to do with saving lives. Indeed, it may make 3 lives absolutely miserable. But this consequence must attach to sex.
In fact, casual sex has plenty of “consequences” with or without pregnancy. Nobody can or wants to make it “consequence free”. But there’s no logical reason why this PARTICULAR life-ruining consequence should attach, unless one’s goal is to use babies as an instrument to punish women for being sluts.
Again, legally mandating an additional consequence to women’s sexual freedom is completely anti-libertarian, as well as anti-feminist.
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October 7, 2009, 6:47 pmOren says:
FWIW, even as a pro-(pre-20-weeks)-choicer, I have to agree with David that most prolifers appear to be motivated by pro-life arguments. Arguments about hating women are besides the point anyway — if it’s wrong to ban abortion because you want to oppress women then, logically, it’s equally wrong to do so to protect the fetus.
That said, we cannot just ignore the rhetoric from social conservatives that not only do they disapprove of modern sexual freedoms, they deny that we ought to have the liberty to make those sexual choices in the first place. That is, they disapprove not only of the manner in which folks exercise their individual sexual liberty but they disapprove of that liberty in-and-of-itself.
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October 7, 2009, 7:50 pmRicardo says:
It depends on how much power those new positions have but, in fact, that is what the concept of checks and balances is all about. County sheriffs in the Deep South and the terrorist organization of which some of them were a part had nearly absolute power over blacks. That situation needed to change and state governments showed no interest in doing anything to solve the problem. There is an empirical question here: has the liberty situation in the South improved since the Civil Rights movement? I think the clear answer is “Yes.”
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October 7, 2009, 9:45 pmJ56765 says:
(I wonder how these gentlemen would argue that lesbians are committing sodomy, but of course it didn’t matter what the law actually said, it was interpreted against all homosexuals, even celibate ones)
Because legally, sodomy is often defined as oral as well as anal sex. Of course, this means most heterosexuals also commit sodomy.
Sure, none of this affects you, Prof. Volokh.
This post was actually written by Prof. Somin, not Prof. Volokh.
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October 8, 2009, 3:51 amegd says:
The problem with your argument is that the abortion right has nothing to do with sexual freedom. Sexual freedom (the right to be free from reproductive consequences of reproductive actions) is embodied in the right to contraception. See Griswold v. Connecticut, 381 U.S. 479 (1965). Once a woman has the right to contraception, the reproductive consequences of consensual sex are determined by the woman.
Want a child? Have unprotected sex. Don’t want a child? Have protected sex.
Abortion therefore has nothing to do with sexual freedom.
The discussion of whether abortion is a right must necessarily be a balance between a woman’s “right” to control her body during pregnancy and a child’s “right” to live. Some people weigh one side more than the other, but to deny that there’s a balance of interest is the height of arrogance.
You might as well argue that pro-choicers — by tending to support welfare, drug use, gay marriage, and abortion, while opposing churches, religious schools, school vouchers, and the military — hate children because they support causes which hurt families and, by extension children.
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October 8, 2009, 10:22 amDilan Esper says:
The problem with your argument is that the abortion right has nothing to do with sexual freedom. Sexual freedom (the right to be free from reproductive consequences of reproductive actions) is embodied in the right to contraception. See Griswold v. Connecticut, 381 U.S. 479 (1965). Once a woman has the right to contraception, the reproductive consequences of consensual sex are determined by the woman.
This would only be true if (1) contraception were 100 percent effective, (2) women didn’t ever change their minds, and (3) all sex was fully consensual (and by the way, there’s plenty of sex that isn’t rape but also isn’t fully consensual in the sense that there is a meaningful opportunity for the parties to use contraception properly).
But in the real world, none of those things are true, which is why the only way to ensure that women are able to have sex without having to fear a pregnancy is by protecting a right to abortion.
The discussion of whether abortion is a right must necessarily be a balance between a woman’s “right” to control her body during pregnancy and a child’s “right” to live. Some people weigh one side more than the other, but to deny that there’s a balance of interest is the height of arrogance.
It isn’t that there isn’t a balance– such a balance is struck by Roe and Casey. It’s that the LIBERTARIAN position is to protect the woman’s sexual freedom. Pro-lifers get to the conclusion they get to by assuming that female sexual freedom is a bad thing.
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October 8, 2009, 3:24 pmScott Alden says:
Delan Esper,
It’s that the LIBERTARIAN position is to protect the woman’s sexual freedom.
It is only the libertarian position if you do not recognize the child’s right to life. I am a libertarian and am pro-life because I value the right to life. I support the use of contraception, but abortion is not contraception.
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October 8, 2009, 6:43 pmDilan Esper says:
It is only the libertarian position if you do not recognize the child’s right to life. I am a libertarian and am pro-life because I value the right to life. I support the use of contraception, but abortion is not contraception.
Scott:
There are very few of you. Most pro-lifers oppose contraception, gay rights, and various forms of sexual freedom.
And I would also say that you are undervaluing how important sexual freedom is to women. The pro-life position inherently undervalues that liberty at least as to very early term abortions of zygotes and tiny embryos.
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October 8, 2009, 7:16 pmDan says:
Roe v. Wade is a bad decision regardless of its subject matter. It stands for the principle of “cafeteria constitutionalism”, where the justices can resolve any perceived tension by simply ignoring it.
In this case, the court could have acted narrowly, in stating that this particular statute was unconstitutional because it could not be enforced without interfering with the mother’s fifth amendment rights against self-incrimination, and her common law doctor-patient privilege. This would have left as a political question to the states as to whether to conditionally remove the privilege or to invalidate the statute, as the states would seem to have under the Ninth and Tenth Amendments.
Instead, they decided to enumerate a right nowhere mentioned in the text of the Constitution, and make the blanket statement that no abortion statute could be enforced contrary to this right to privacy.
If the Supreme Court then has the capacity to enumerate rights not found in the text of the Constitution, then it would seem that it would also have the right to deny rights that are enumerated (see Kelo). If this then is to be the case, then what is the role of the written constitution or the amendment process?
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October 15, 2009, 2:26 pmOctober 15 roundup says:
[...] Ten best Supreme Court decisions, from a libertarian point of view? [Somin, Volokh] [...]
Down from the Ivory Tower says:
Bush v. Gore, anybody?
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October 22, 2009, 6:22 pm