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

By on November 19, 2013 3:33 pm in Conservatism, Libertarianism

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 [...]

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How Murray Rothbard Became a Libertarian

By on October 29, 2013 9:23 am in Libertarianism, Uncategorized

Via Matt Zwolinski at Bleeding Hearts Libertarians, here is a video of the late Murray Rothbard, who is as responsible as anyone for the existence of the modern libertarian movement, describing his libertarian history. I have my issues with Rothbard, including what I think of as his inane views on foreign policy adapted from bad leftist history and analysis (I always think of his essay criticizing Zionists for buying land in Mandatory Palestine, this from an advocate of free immigration and unrestricted markets; he also, among other things, wrote a horrific essay celebrating the fall of Saigon to express his pleasure that a state had died), his often divisive political activities, and toward the end of his life, his alliance with Pat Buchananites and (not coincidentally) his indulgence of racism and anti-Semitism. But he was a towering figure in the libertarian movement from the 1950s to 1970s, and, as I learned by spending a week with him at a seminar in 1988, an incredibly funny and charming person. This video gives you a good taste of that.

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Why is the Obamacare Rollout Failing?

By on October 21, 2013 10:17 pm in Libertarianism

Why, it’s obviously because President Barack Obama and his top aides hate government, and therefore can’t be trusted to run a major government program. When the government is run by political forces committed to the belief that government is always the problem, never the solution, that belief tends to become a self-fulfilling prophecy. Key priorities are neglected; key functions are privatized; and key people, the competent public servants who make government work, either leave or are driven out. What we really need is a government that works, because it’s run by people who understand that sometimes government is the solution, after all.

Doesn’t make any sense to you? It made just as little sense when Paul Krugman made the argument in 2008, imaginatively (to say the least) positing that George W. Bush and John McCain were wild-eyed libertarians, and that the former’s purported libertarianism was the cause of FEMA’s incompetence in dealing with Katrina.

I ridiculed the premise at the time (and again a year later), noting that “After eight years of “no child left behind,” Medicare expansion, aid to Africa for AIDS, drug warring, abstinence education, nation-building in Iraq and Afghanistan, and so forth and so on, and more of the same promised by McCain, the better question is, is there any problem that Bush and McCain DON’T think government should solve?”

As I recall, others rejoined that no, Krugman is right, incompetence by the Bush Admnistration is OBVIOUSLY due to Republicans all totally hating government. It must come as a surprise to Krugman and his defenders that government can prove itself to be wildly, disastrously incompetent even when run by people whom even Krugman would have to admit aren’t going to be confused with libertarians any time soon (assuming, of course, that Krugman actually ever believed [...]

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The Problem of Confusing Political Terminology

By on October 11, 2013 5:28 pm in Conservatism, Libertarianism

Co-blogger Eugene Volokh’s excellent post on the sometimes confusing multiple meanings of the word “Jew” call to mind similar confusions in political terminology. For example, the term “conservative” is routinely used to refer to 1) people who are in some sense on the political right, 2) people who oppose changes in the status quo, 3) people who are willing to accept gradual change but not rapid change (e.g. – Burkean conservatives), and 4) people who want to return to the government policies or moral values of a bygone age. The fourth group might be more precisely referred to as “reactionary,” but the word “conservative” is often used to describe them instead, in part because “reactionary” has a pejorative connotation. Because of these multiple meanings, we get situations such as the Western media referring to communists who opposed Mikhail Gorbachev’s reforms as “conservatives.” These people were conservative in the sense of meaning 2, but obviously not in the sense of meaning 1.

In many cases, it’s possible to tell which sense of the word “conservative” is meant by context. But sometimes, pundits, politicans, and activists deliberately exploit the ambiguities, as when they act as if people who are conservatives in the sense of 2 are basically the same as those in who are conservative in the sense of 1 or 4. Alternatively, people sometimes try to score debating points by claiming, for example, that people who want to cut back or restructure long-established entitlement programs can’t be “real” conservatives, because what they advocate requires major changes to the status quo. They can still be conservatives in the sense of 1 or 3 (if they advocate gradual rather than immediate restructuring of the programs in question).

There is a similar, but less severe, confusion in the use of the term “libertarian.” The [...]

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Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?

By on September 19, 2013 4:23 pm in Conservatism, Federalism, Health Care, Individual Mandate, Judicial Power, Libertarianism

Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They argue that this divide is exemplified by the the Supreme Court’s decision in NFIB v. Sebelius, where Chief Justice John Roberts voted to uphold the individual health insurance mandate as a tax, while other conservative justices voted to strike it down. As Epps puts it, Roberts voted the way he did because “his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama.” As a veteran of the Reagan-era Justice Department, Roberts supposedly imbibed the ideology of judicial restraint, from which later conservatives have departed.

I. Federalism and Reagan’s Judicial Appointees.

This thesis fundamentally misconceives the dominant constitutional vision of the Reagan administration and most of the jurists associated with it. In the individual mandate case, both of the actual Reagan appointees still on the Court – Justices Antonin Scalia and Anthony Kennedy – voted to strike down the law. If they had still been on the Court, Reagan’s two other appointees, Sandra Day O’Connor and William Rehnquist (whom Reagan promoted to Chief Justice), would likely have voted the same way, based on their longstanding advocacy of strong judicial enforcement of limits on federal power and their dissents in Gonzales v. Raich (in which case Scalia and Kennedy voted to uphold the law).

Reagan also nominated numerous leading libertarians and pro-federalism conservatives to the lower courts, including such well-known libertarian and libertarian-leaning jurists as Alex Koziniski, Douglas Ginsburg, Stephen Williams, Jerry Smith, and [...]

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My Upcoming Talk at the Introductory Meeting of the George Mason Law Students For Liberty

By on September 12, 2013 11:05 am in Libertarianism

This post is mostly intended for George Mason law students.

On Monday, September 16, from 5-6 PM, I will be speaking at the introductory meeting of the George Mason Law Students for Liberty, for which I am the faculty adviser. Students for Liberty is the nation’s largest and most successful libertarian student organization, and the GMU Law School chapter is one of the first efforts to expand it to the law school world. My talk will cover what libertarianism is, how it differs from liberalism and conservatism, and some of its most important implications for law and legal theory. There will also be a brief introduction by GMU SFL President Andrew Hopkins, who will describe some of the exciting activities that SFL has planned for the year. Perhaps most important, there will be free burritos from Chipotle.

The event will be in Hazel Hall, Room 332.

I should note that any students interested in libertarianism are welcome to come to the event, and “interested” doesn’t necessarily mean that you actually are a libertarian yourself. The interest could even arise from a desire to learn more about your ideological antagonists. [...]

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The Colorado Recalls Explained

By on September 11, 2013 3:16 am in "Bullying" Bans, Constitutional Law, Fifth Amendment, Fourteenth Amendment, Guns, Libertarianism, Popular Constitutionalism

Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law.

Former State Senate President John Morse represented Colorado Springs, plus the somewhat hipster mountain community of Manitou Springs. While El Paso County is strongly Republican, the interior city of Colorado Springs has been center/center-left for years. Senate District 11 was carved to make the election of a Democrat possible, and it worked. Voter registration in SD 11 is about a third, a third, and a third among Democrats, Republicans, and Independents, with Democrats having the largest third and Republicans the smallest. Morse barely won re-election in 2010, and might have lost if not for the presence of a Libertarian on the ballot.

As the conventional wisdom expected, voter turn-out was relatively low. Morse was recalled by  51-49%. The conventional wisdom of Colorado politics had been that Morse would probably lose, but that the election would be tight, and there was a chance that he might win. As things turned out, Republicans turned out greatly in excess of their registration percentage, and that was probably the difference.

Both sides had hard-working GOTV programs, but apparently the Democrats did not succeed in convincing enough of their less-enthusiastic voters to vote. This is in contrast to 2012, when Obama won the district by 21%.

Pueblo, the largest city in southern Colorado, delivered the result that stunned almost everyone. For more than a century, Pueblo has been a Colorado stronghold of working-class union Democrats. Like most of southern Colorado, it has a large Hispanic population. Obama won Senate District 3 by 19% in 2012. In 2010, Democratic Senator [...]

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A “Libertarian” Case for Conscription?

By on September 10, 2013 2:50 pm in Conscription, Libertarianism, War and Armed Conflict

There are a number of standard arguments for military conscription. But Pascal-Emmanuel Gobry’s recent essay for Cato Unbound is unusual for claiming that conscription can be justified on libertarian grounds. With the possible exception of strict pacifism, it’s difficult to imagine an ideology more antithetical to conscription than libertarianism.

As it turns out, most of Gobry’s “libertarian” arguments for conscription are fairly conventional rationales for the draft dressed up in libertarian terminology. And the sheep’s clothing doesn’t make the wolves any more convincing than they are in their usual garb.

I. Conscription as a Threat to Liberty.

The most fundamental flaw in Gobry’s argument is that he ignores the extent to which conscription is not just any restriction on liberty but a very severe one. Subjecting millions of people to forced labor and harsh discipline for two to three years or longer is a very high level of coercion. It can be justified, if at all, only by strong evidence that the draft produces some great good that cannot be achieved by less oppressive means. You don’t have to be a libertarian to see this. A great many conservatives and liberals also understand this point, which is one of the reasons why the vast majority of Americans (most of whom are not libertarians) oppose the reintroduction of conscription. Libertarians set a higher value on liberty than adherents of other ideologies, and thus should require an even higher burden of proof before endorsing conscription. Libertarians should be the last people to accept a form of coercion that even most non-libertarians now reject.

Gobry tries to sidestep this issue by comparing conscription to taxation, mandatory jury service, and mandatory education for children, all of which he claims libertarians accept. But taxation and jury service are much less severe impositions than conscription. There [...]

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Libertarianism and the Supreme Court

By on July 29, 2013 6:14 pm in Commerce Clause, Federalism, Libertarianism, Property Rights, Supreme Court

Simon Lazarus of the liberal Constitutional Accountability Center is correct to point out that the Supreme Court’s decisions have trended in a somewhat libertarian direction over the last year. I also agree with many of co-blogger Randy Barnett’s explanations for why this has happened. In addition to the cases cited by Lazarus, it’s also worth noting that the recently concluded Supreme Court term saw important victories for property rights in the Koontz and Horne cases.

At the same time, however, Randy is correct to point out that Lazarus’ case is overstated. For example, Lazarus exaggerates when he writes that last year’s Obamacare decision “came close” to “accept[ing] libertarian conservatives’ invitation to junk the ‘New Deal settlement’ that bars constitutional interference with regulatory and safety net legislation.” Even if the challengers had prevailed on every point at issue in that case, Congress would still have sweeping authority to regulate virtually any “economic activity,” and state governments would have even greater regulatory authority than that. Similarly, Lazarus exaggerates when he contends that cases like the DC Circuit decision restricting the presidents’ power to make “recess” appointments are part of an agenda of “doctrinal resets aimed at crippling federal regulatory power.” Even if conservatives and libertarians prevail in every single one of the cases he mentions, the federal government would still retain massive regulatory authority over almost every aspect of the economy and society. Obviously, it’s possible to characterize any decision to strike down or limit “regulatory legislation” on structural grounds as “junking the New Deal settlement.” But that’s like saying that any decision enforcing even modest constitutional limits on law enforcement amounts to junking the criminal justice system.

It’s also worth noting that many of the Court’s recent “libertarian” decisions rely on swing votes cast by Justice Anthony Kennedy. He does [...]

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Former “Southern Avenger” Jack Hunter Resigns from Rand Paul’s Staff

By on July 22, 2013 12:15 pm in Civil War, Libertarianism, Racial Discrimination

Jack Hunter, the Rand Paul aide once known as the “Southern Avenger” has resigned from the senator’s staff in order to avoid being a “distraction.” Hunter has a history of pro-Confederate and borderline racist statements, though he has repudiated them in more recent years. In addition to creating a political problem for Rand Paul, the controversy over Hunter has also led to extensive discussion of libertarian attitudes towards the Civil War, including VC posts by Randy Barnett, David Bernstein, Jonathan Adler, and myself (here and here). I discussed the three major types of libertarian views on the War in this post last year.

Although only a relatively small minority of libertarians either sympathize with the Confederacy or believe that the world would have been better off with a Confederate victory in the war, it is important to properly address this dirty laundry within the movement, for reasons well expressed by Jacob Levy. A person who sympathizes with the Confederacy despite knowing its true record cannot be a libertarian in any meaningful sense, or a minimally decent human being. Libertarians and others who support it out of ignorance should take the time to study the relevant history, at least if they intend to make public statements on the subject.

It’s worth noting, however, that Hunter describes his neo-Confederate views as arising from conservatism rather than libertarianism, and says that he has become more racially and ethnically tolerant as he became “far more libertarian” in recent years:

“I’ve long been a conservative, and years ago, a much more politically incorrect (and campy) one,” Hunter said in an email. “But there’s a significant difference between being politically incorrect and racist. I’ve also become far more libertarian over the years, a philosophy that encourages a more tolerant worldview,

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Why Some Libertarians Sympathize with the Confederacy

By on July 19, 2013 10:30 pm in Federalism, Libertarianism

I heartily agree with everything my co-bloggers have said about how very unlibertarian it is to sympathize with the Confederacy. One factor that I don’t think was mentioned as to how some otherwise bright, non-racist libertarians might find themselves promoting the Confederacy’s cause is how much some libertarians hate “the Union,” that is, the federal government that emerged out of the Civil War much more powerful than before.

Within the broad tent of libertarianism as it has developed over the last five decades or so, there has always been a significant group whose understanding of America’s role in the world is similar to that of Noam Chomsky and other leftists [update: my impression is that this group was in severe decline starting in the late 70s, but has had a bit of a revival thanks to the wars since 9/11, the growing national security state, and most of all Ron Paul]. Murray Rothbard was the intellectual leader of this group, echoes of which can be seen in some of Ron Paul’s statements on American foreign policy.

If you believe that the United States government has been a massive force for evil in the world, and also object to much of the government’s domestic policy, it’s only natural to wish that the government’s ability to do the damage it wrought had been nipped in the bud. And the most plausible way this could have happened historically would have been for the South to have successfully seceded from the North, leaving a much smaller and weaker central government that would likely have faced further secessionist challenges in the future. This version of the United States would never have become the world power the real United State came, and therefore couldn’t have wreaked the evil the United States purportedly wreaked on the world. [...]

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Libertarianism, the Confederacy, and the Civil War Revisited

By on July 16, 2013 8:34 pm in Civil War, History, Libertarianism, Racial Discrimination, Secession

Revelations that Rand Paul aide Jack Hunter has a history of racist and pro-Confederate statements during his days as a radio shock jock have rekindled the longstanding debate over libertarian attitudes towards the Civil War. Hunter has repudiated many of his former statements and attitudes. But that hasn’t stopped the controversy from continuing.

This uproar raises two important issues: First, is there any possible justification for libertarian sympathy for the Confederacy? Second, how should the libertarian movement react to people with views like Hunter’s?

I. The Case Against the Confederacy.

I have written about the first point at length in the past. To briefly summarize, the Confederacy is indefensible because it was created for the purpose of perpetuating and extending the evil – and manifestly unlibertarian – institution of slavery. Don’t take my word for it. Take that of Confederate President Jefferson Davis, Vice President Alexander Stephens, and the southern states’ official statements outlining their reasons for seceding.

It’s also worth remembering that the Confederacy was a brutal and oppressive regime even aside from slavery. I am by no means hostile to all secession movements. But even if you endorse secession in any situation where a majority of the people in a state support it, you should still denounce Confederate secession. I explained why here:

As of 1860, African-Americans constituted about 40% of the population of the states that formed the Confederacy. It’s a safe bet that they were overwhelmingly opposed to secession. When you combine this overwhelming black opposition with that of the substantial minority of southern whites who also wanted to stay in the Union, it is highly likely that a majority of southerners in 1861 opposed secession. Once you recognize that blacks count too, it becomes clear

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Julian Sanchez on Pilon and Epstein’s Defense of the NSA Electronic Data Collection Program

By on June 17, 2013 11:45 am in Fourth Amendment, Libertarianism, War on Terror

Last week, Roger Pilon of the Cato Institute and famed libertarian law professor Richard Epstein published an op ed defending the NSA policy of collecting data on millions of Americans’ electronic communications. Pilon and Epstein may be the only prominent libertarian defenders of the NSA on this issue; though, obviously, that doesn’t necessarily mean they are wrong.

Pilon’s Cato Institute colleague Julian Sanchez recently posted a thorough and compelling critique of Pilon and Epstein’s argument. I think this part does a great job of capturing the main danger posed by the program:

[T]he crucial question is not really whether the short term-benefit of a particular government search outweighs its immediate harm or inconvenience—though I note that the marginal benefit of the NSA program over narrower methods remains as yet asserted rather than demonstrated. By that standard, surely many warrantless searches would pass muster….

Rather, the appropriate question is whether the creation of a system of surveillance perilously alters that balance too far in the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who—whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good—would seek to use it against us.

Among other things, Sanchez’s post includes a good critique of Smith v. Maryland, the 1979 Supreme Court decision cited by both Pilon and Epstein and many other defenders of the NSA program. Like Sanchez, I [...]

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Irony Alert: Michael Lind on Lochner

By on June 12, 2013 2:28 pm in Constitutional History, Libertarianism

If you are going to accuse a critic of being “astonishingly ignorant of history,” your response to said critic should not include this:

State and local licensing rules and trade laws governed economic life in detail, down to the size of spigots in wine casks, in some cases.

It was precisely these state and local regulations that the Supreme Court struck down, in Lochner v. New York (1905) and other cases, to promote the goal of creating a single national market.

I’ve seen lots of different interpretations of Lochner over the years, but I’ve never seen anyone claim that underlying Lochner was a desire to create a single national market, and for good reason, because that’s a ridiculous interpretation of Lochner.

Surely someone with even a tenuous grasp of 20th century American constitutional history at least knows that the Justices most sympathetic to Lochnerian reasoning were also generally the most hostile to federal laws that attempted to create a uniform national market. “Astonishingly ignorant of history,” indeed.

(And if this post seems a bit snide, please consider that I’m responding to someone who writes gems such as, “if they were not paid so well to churn out anti-government propaganda by plutocrats like the Koch brothers and various self-interested corporations, libertarians would play no greater role in public debate than do the followers of Lyndon LaRouche or L. Ron Hubbard.”)

UPDATE: Not that it’s worth taking Lind’s “point” reprinted above seriously, but let’s review:

It seems undisputed that the Kochs total spending on political and ideological causes is somewhere around 10-15 million dollars per year. How big a role does this money play in the American political system?

Let’s start with ideological/intellectual causes. The liberal Ford Foundation spends over $400 million a year. The liberal MacArthur Foundation spends about $140 million

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