Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of hours that bakers could work as a violation of the Fourteenth Amendment’s Due Process Clause. It’s safe to say that most legal academics and judges today believe that the Lochner Court engaged in extraordinarily outrageous “judicial activism” motivated by a devotion to extreme libertarian ideology, big business, or both.
In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, George Mason University law professor David Bernstein makes the case that the conventional view is wrong. He provides persuasive evidence that Lochner does not deserve to be singled out as an especially activist or offensive case and that Lochner’s Progressive critics were the real activists with a much more disturbing agenda.
The video of my speech a the Nullify Now event in Cincinnati is now online. I talk about nullifying the PATRIOT Act, nullifying TSA tyranny, and, most importantly, nullifying the State in your own mind.
As for me, I’ll be at the Mises Circle in Chicago this weekend, and then giving a talk calling for the abolition of copyright and patents at Whittier Law School in Costa Mesa, California on April 14.
What should libertarian legal scholars study? What kind of work can they do that will be respectable to their colleagues in academia while advancing libertarian ideas?
I offered my thoughts on this in a short talk at the 2010 Austrian Scholars Conference at the Mises Institute. For some reason, I didn’t link to the audio when it was first posted, but here it is now:
I love this article by Paul Craig Roberts on the “true cost” of the Iraq war and think everyone should read it.
But there’s one sentence in this otherwise-outstanding piece to which I take exception. Roberts writes: “The fascist Republican Federalist Society has put enough federal judges in the judiciary to rule that the president is above the law.”
This is nonsense.
First, let’s tackle the claim that the Federalist Society is “fascist” and “Republican.”
The Federalist Society was formed by law students who were frustrated by the left’s dominance at law schools. They created the organization to provide a forum for alternative voices: namely, those of conservatives and libertarians.
Here’s how the Federalist Society functions. There’s a national headquarters in Washington (a red flag, I’ll grant you), there are student chapters in almost every law school, and there are lawyers’ chapters in various cities.
The student and lawyers’ chapters generally do one thing: host lectures and debates. These events feature speakers ranging all the way from people Roberts would probably call “fascist” to anarcho-capitalist libertarians such as Randy Barnett and Walter Block. One frequent Federalist speaker is Roberts’s fellow columnist at Antiwar.com, Doug Bandow, whose lecture topics include the American Empire.
Who decides who will speak at these events? Each chapter’s members. If the members tend to be more conservative, they may bring in more conservative speakers. If the members tend to be more libertarian, they may bring in more libertarian speakers.
If the balance seems to tip in favor of conservatives overall, it’s only because there are, of course, many more conservatives than libertarians among America’s law students, lawyers, and law professors. In fact, it’s safe to say that libertarians are featured at Federalist Society events in rather gross disproportion to the percentage of its members who are libertarians. Why? Probably because it’s a group that was founded for the purpose of having alternative ideas expressed and holding intellectually stimulating events. I should add that leftist speakers often appear at Federalist debates, too — because the purpose is to debate ideas, not to cram some Republican agenda down people’s throats.
The national office of the Federalist Society puts on a symposium every year where top conservative and libertarian legal scholars speak — and this usually does include a Republican Supreme Court justice. Nonetheless, libertarians are there, and they are given a respectful hearing like everyone else. Incidentally, at the last symposium, Judge Janice Rogers Brown — who isn’t perfect but certainly satisfies my big-tent notion of who counts as a libertarian — quoted from Thomas Woods’s book Meltdown, which it’s safe to say is not a favorite of fascists.
I should add that anyone can attend these events (usually the student ones are free), and audio and video of many of them are posted online as well, so anyone who is interested can see what the Society is all about.
The Federalist Society also sponsors a law journal, The Harvard Journal of Public Policy. A recent symposium on the financial crisis included an essay by Ron Paul attacking the Fed and one by Richard Epstein bashing Keynesianism and his colleague Richard Posner’s embrace of it.
I’m uncompromising in my libertarianism, but I see nothing at all wrong with conservatives and libertarians coming together in an organization like this to have their voices heard. It’s not much different than the Libertarian Party teaming up with the Green Party to improve ballot-access laws to get a place at the table — though the Federalist Society seems like a more worthwhile endeavor, since it’s about ideas, not politics.
Which brings me to Roberts’s other claim: that the Federalist Society somehow “put” judges on the bench. This is absurd.
I don’t know what basis Roberts could have for thinking the Federalist Society wields such power. Undoubtedly many (but far from all) Republican judges have some connection to the Federalist Society, either as members or as speakers at past events. But why wouldn’t they? It’s the only national organization for conservative lawyers and law students out there. And why would a Republican president need the Federalist Society to choose “fascist” judges for him? Couldn’t he just pick them himself? And isn’t he responsible for who he appoints in any event? And aren’t there many political factors affecting who gets on the bench that have nothing to do with Federalist Society membership? Like so many other alleged secret conspiracies, this makes no sense.
Libertarians should be glad the Federalist Society exists, and if they’re lawyers or law students, they should get involved and make sure the ideas that are important to them are part of the conversation. If “fascists” would come to dominate it someday — which they certainly don’t now — it could only be because libertarians weren’t doing their job.
The furor over the “Ground Zero Mosque” (which is neither a mosque nor at Ground Zero) doesn’t make me very optimistic about the prospects for liberty.
As a libertarian and just a live-and-let-live kind of guy, I can’t imagine caring much about, let alone vocally protesting, what someone is building two blocks away from me.
Yet apparently many of my fellow Americans are such busybodies that they’ll whine for weeks about something being built hundreds or thousands of miles away from them, in a city they don’t live in and probably won’t even visit. And many of the complainers are among the Tea Party set whom we are occasionally told are “libertarian,” even though they seem to hate Muslims and Mexicans and love war at least as much as they hate the federal government and love liberty.
Jonah Goldberg claims that the conservatives who object “mostly” recognize that the Muslims have a legal right to build their center. But what I hear on talk radio makes me doubt this. A common argument there seems to be that since “liberals” don’t care about the Constitution or property rights in general, they aren’t entitled to invoke them now — as though liberals somehow have the power to waive Muslims’ rights.
In any event, even if Goldberg is correct, it’s hard to imagine that the spirit of liberty resides in the sort of people who get so worked up over this sort of thing. The ease with which they’ve been distracted by this issue suggests that reducing government isn’t going to be their top priority once their team is back in control in Washington.
These quotes from 1976 and 2010 (via “Snowflakes in Hell“) suggest an answer.
Then:
“Our ultimate goal — total control of handguns in the United States — is going to take time. My estimate is seven to ten years. The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors-totally illegal.”
–Pete Shields, July 1976, President of National Coalition to Control Handguns (which later became Handgun Control Inc. and then the Brady Campaign)
Now:
“It is settled law. If I were taking a law school exam today, I would say, yes, you have got an individual right to have a gun in your home for self-defense.”
– Paul Helmke, President of the Brady Campaign, June 28, 2010
At the Volokh Conspiracy blog, Randy Barnett says libertarian political activists shouldn’t waste their efforts on nullification, as Tom Woods urges in his new book, because it’s a “sketchy” theory.
I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.
Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government. Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.
Brian Doherty provides a balanced libertarian look at the McDonald gun decision.
Although I’m sure the decision will benefit liberty at least a little bit, at least in Chicago, this article shows that no one really knows which gun bans will survive after courts hear challenges to other cities’ gun laws. Both the optimists and the skeptics among libertarians seem too confident in their predictions about this.
I’ll have a full review later. For now, here’s the short one I posted on Amazon:
If you’re serious about smaller government, read this book., June 28, 2010
There have been so many conservative and libertarian books complaining about how Congress has exceeded its constitutional powers and the federal government has grown far beyond what the Founding Fathers ever intended.
This one is different: It actually shows how we could do something about it.
First, Woods shows why the usual methods don’t work. Electing new Senators and Representatives doesn’t work because no matter what politicians promise, they always end up caving to special interests. Trying to get the Supreme Court to strike down unconstitutional laws doesn’t work, either, because the judicial branch is part of the very federal government we want to restrain, and it’s shown again and again that it won’t respect the Constitution’s (supposed) limits on federal power.
Next, Woods explains the alternative: nullification, whereby individual states can declare unconstitutional laws null and void and prevent their enforcement against the state’s citizens.
Although that idea may be new to many readers (most civics teachers, historians, and law professors completely ignore it), Woods shows that it is not new at all. Thomas Jefferson, James Madison, and many others in the founding era thought nullification was essential to stop the federal government from growing out of control. And Woods shows how nullification has been used at various times in American history to attack oppressive federal laws, including the Alien and Sedition Acts and the Fugitive Slave Act.
Most importantly, Woods shows how nullification can work again today. Some states are already starting to revive it — for example, California has said no to the federal government (even the Supreme Court!) on the issue of medical marijuana, and many states have said no to the federal REAL ID Act.
The numerous historical documents included with the book prove the importance of nullification in American history and provide additional ammunition you can use to make the case to others.
This isn’t a dry work of history or legal theory, though. It’s a manual for how we could shrink the federal government to something much closer to what the people who ratified the Constitution intended. That means Tea Partiers, libertarians, and anyone else who is serious about seeking real change — instead of just playing the same old rigged political game — should read this book.
The short-term answer is certainly yes. Chicago has one of the worst gun bans in the country, so if it’s loosened at all, then Chicagoans will enjoy more liberty. Presumably very restrictive bans in others cities will also fall, which is also good.
What about that disgusting language in the decision reassuring governments that the right to bear arms “does not imperil every law regulating firearms”?
Some libertarian friends have suggested that this might embolden certain state or local governments to pass more gun laws, but this argument isn’t persuasive.
Places that don’t have more stringent gun control now haven’t been holding back because they heretofore thought that the Second and Fourteenth Amendments protected an unqualified right to keep and bear arms. Until now, governments everywhere had every reason to think they could pretty much get away with anything because cities like Chicago had already done it. The reason some places, such as my home state of Ohio, have a lot of gun freedom (relatively) is because the people there want it, and that’s not going to change.
One might also argue that the decision is bad because it is centralist — it is the federal government telling the states what to do, which the Founders never intended, and which, arguably, the Fourteenth Amendment’s framers intended only to a limited extent. I’m sympathetic to this point of view, but that question was not at issue in this case. The reality is that the Supreme Court long ago assumed the power to strike down state and local laws that violate certain rights, and it’s not going to lose that power anytime soon no matter what. The only question now is whether it will use that power in a way that benefits liberty, and here it did so.
Of course, future Supreme Court decisions may make clear that the exceptions to the rule are so expansive as to render Heller and McDonald meaningless. And none of this is to say that we should be grateful to the Supreme Court for letting us do what we had a right to do in the first place, or that we should count on the Court to protect our rights in the future. Where you see the Supreme Court’s true character is in its decisions on the extent of the federal government’s power — which it has held to be virtually unlimited, with the exception of a few carved-out “rights” such as this one. If the Constitution is going to get us out of that problem, it won’t be through more Supreme Court cases, but through nullification.
Jacob H. Huebert is a public-interest lawyer in Chicago and the author of Libertarianism Today, a new introduction to libertarian ideas and the libertarian movement.
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"In Libertarianism Today, Jacob Huebert draws on his mastery of libertarian philosophy, Austrian economics, and history to show that limited government and free markets are the only cures for the numerous problems facing our nation. Huebert also provides an excellent introduction to libertarian thought and a concise summary of the history of the libertarian movement. Anyone interested in learning more about the past, present, and future of the liberty movement can benefit from reading this book."
- Congressman Ron Paul
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If you’re serious about smaller government, read this book., June 28, 2010
