Ian Millhiser on Me, the Federalist Society, and “Judicial Activism”

Ian Milhiser at ThinkProgress has written an article on the recently concluded Federalist Society National Convention, where he claims it shows that conservatives have embraced wideranging “judicial activism.” He also includes a summary of a discussion he had with me, at the convention. The summary is accurate in so far as it goes, but omits crucial context:

My sparring partner during much of this closing reception for the Federalist Society’s annual lawyer’s convention, is Ilya Somin, who is a law professor and writer for the Volokh Conspiracy, a popular legal blog that thousands of lawyers, law clerks and judges read every day. As Ilya lays out Social Security’s supposed vices, I wonder if his readers are aware of the breadth of his agenda. I also chide him that voters would have an easy time making up their minds if Republicans campaigned openly on promises to abolish child labor laws and kill Medicare, but he is completely unapologetic for his beliefs. This is not a man who pretends to care about the poor and the middle class in order to sell policies that will lower his own taxes. I leave the reception convinced that he sincerely believes that America’s poor would be better off if they only embraced his vision for a libertarian utopia.

Ilya’s views are not universal, but they are hardly unusual at this gathering of what is arguably the most powerful legal organization in the country.

I did indeed say that I oppose Social Security. This is hardly an unusual position for free market advocates. Milton Friedman and most other leading libertarian economists have advocated the same view, as have many pro-free market conservatives, from Barry Goldwater to Ronald Reagan. Even a big government conservative, such as George W. Bush, proposed a plan to privatize large parts of the program. The discovery that free market advocates oppose Social Security is no more shocking than the discovery that Jews reject the view that Christ was the son of God. I doubt that very many regular readers of the Volokh Conspiracy will be at all surprised to learn that my view on this issue is the same as [update: very similar] to Friedman’s and Reagan’s. It’s worth mentioning, however, that in the very same conversation I also told Ian that I do not oppose government support for poor people (including elderly ones) who are genuinely unable to support themselves. What I oppose is government redistribution to the non-poor, which is most of what Social Security does. Since the article focuses on “judicial activism,” it is also important to note (as Ian does not) that I said to him that I do not believe that courts either can or should invalidate Social Security. Only the political process can repeal or fundamentally transform such a large and long-established program.

As for child labor, I do in fact oppose categorical bans on the practice. At the same time, as I explained to Ian, I think the government can and should forbid it in cases where the children are subjected to unusually severe health and safety risks. Why not ban child labor completely? Here, it’s important to remember that the context of our discussion was child labor in the early twentieth century, when the United States was – by modern standards – an extremely poor nation, with a per capita income comparable to various Third World countries today. In that context, banning child labor often ends up hurting poor families rather than helping them, as I explained here:

By modern standards, the United States in 1918 was a very poor society. In such an economy, banning child labor might deprive many poor families of much-needed income and leave children worse off than they would be otherwise – especially when one considers that many children barred from working in factories would likely end up working at home or on farms for less money and sometimes under more dangerous conditions. Indeed, farm labor by children was not banned under the law struck down by the Court in Hammer [v. Dagenhart (1918)], and remains legal to this day.

This conjecture is backed by a number of studies of child labor by economic historians, such as Clark Nardinelli, who found that the rise of industrial child labor in Britain, on average, made poor families better off than they would have been otherwise [UPDATE: Nardinelli also found that the children themselves were economically better off, not just their families as a whole].

Ultimately, my view on child labor in poor societies is similar to that of the notorious “libertarian utopian” Paul Krugman, who wrote the following about child labor in the Third World in 2001:

The facts of globalization are not always pretty. If you buy a product made in a third-world country, it was produced by workers who are paid incredibly little by Western standards and probably work under awful conditions. Anyone who is not bothered by those facts, at least some of the time, has no heart.

But that doesn’t mean the demonstrators are right. On the contrary: anyone who thinks that the answer to world poverty is simple outrage against global trade has no head — or chooses not to use it. The anti-globalization movement already has a remarkable track record of hurting the very people and causes it claims to champion….

[W]hen the movement gets what it wants, the effects are often startlingly malign. For example, could anything be worse than having children work in sweatshops? Alas, yes. In 1993, child workers in Bangladesh were found to be producing clothing for Wal-Mart, and Senator Tom Harkin proposed legislation banning imports from countries employing underage workers. The direct result was that Bangladeshi textile factories stopped employing children. But did the children go back to school? Did they return to happy homes? Not according to Oxfam, which found that the displaced child workers ended up in even worse jobs, or on the streets — and that a significant number were forced into prostitution.

I also have some bones to pick with other parts of the article. For example, it is fallacious to conflate the views of libertarian academics (including myself) who have little if any chance of ever being appointed to the judiciary with those of the vast majority of people who actually do have a chance of getting such positions. This is equivalent to saying that Barack Obama is likely to appoint committed liberal law professors to the Supreme Court, such as those who argue that the Constitution requires judges to enforce a broad array of welfare rights. Ian’s article also implicitly relies on the assumption that there is no possible middle ground between upholding virtually all “economic” regulations and returning to the Lochner era. In reality, there are many possible intermediate options, as is also the case with judicial enforcement of most other constitutional rights. For example, the courts have been able to restrict laws regulating, speech, religion, and empowering law enforcement, without categorically banning all such laws. The same is true of economic regulations that might run afoul of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. Given real-world political constraints, and given the personal views of people who actually have a real chance of being appointed to the judiciary, the likely result of having more conservatives on the courts would be a modest increase of judicial enforcement of property rights, limits on federal power, and (possibly) economic liberties. There is unlikely to be any kind of “radical” change unless libertarian views suddenly become much more popular in society as a whole.

Finally, Ian, like many others, errs in thinking that conservatives have recently embraced “activism,” whereas previously they supported “judicial restraint” (defined as deferring to the political branches of government). In reality, many have advocated stronger judicial enforcement of the original meaning of the Constitution since at least the late 1970s, including on federalism and property rights issues.

UPDATE: Some commenters doubt that Reagan was opposed to Social Security. It is true that he endorsed the program as president. But he also believed that it was a Ponzi scheme, and advocated making it voluntary back in the 1970s. The obvious inference is that he chose not to act on his real beliefs when he was president because it would have been politically unfeasible. In fairness, it is not entirely clear what policy Reagan would have preferred instead of Social Security. Therefore, I probably went too far when I said, in the original version of this post, that my position on the issue is “the same” as his. But it is clear that Reagan was opposed to the program as it existed and would have preferred to severely cut it back in favor of much greater reliance on the private sector.