Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.
This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.
The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.
Ilya Somin and David Bernstein, abstract to “The Mainstreaming of Libertarian Constitutionalism” in Law and Contemporary Problems, reposted in the Washington Post, 2015-02-20.
October 13, 2016
September 14, 2016
Published on 27 Aug 2016
Gaius Gracchus took up the mantle of his dead brother, overcoming resistance from the Senate and the elites to win the election for tribune. Although he had a hot temper, he shared his brother’s charisma and talent, so he built a powerful base of popularity by creating programs for the poor, the army, and the middle class.
With Tiberius dead, it fell to his brother Gaius to take up his mantle. Both brothers were talented and charismatic, but Gaius had a much more fiery temper that made the Senate wary. During his political post, as a quaestor assigned to Sardinia, they tried to bind him to his post to prevent him from running in another election. Gaius broke tradition and defied the Senate’s orders, but when they put him on trial, he brought the citizens over to his side and walked away freely. As they had feared, he ran for tribune: the same office his brother had held. Despite heavy opposition from his enemies, he won. Support for him both in and outside Rome had grown so large that people flooded the city just to vote for him. In his first act, he passed a law which applied retroactively to punish Popilius Laena, the man who had banished Tiberius’s supporters after his death. Popilius fled rather than face the law. Over the remainder of his term, Gaius proved extremely active and efficient: he passed new laws and implemented programs to help the poor, the soldiers, and the middle class through measures like the grain dole. At the end of his term, he planned to step down from politics for a while, but there weren’t enough people who won the election for tribune that year so he was reinstated by default. Now he had what his brother had died for: a second term as tribune.
September 8, 2016
Published on 20 Aug 2016
To protect himself from retaliation for his populist policies, Tiberius Gracchus ran for tribune a second time. On election day, he sought protection from the crowd among rumors that wealthy elites planned to assassinate him, but accidentally sent a message that he wished to be not elected, but crowned as king. A Senator formed an opposing mob that killed Tiberius and 300 of his supporters on the spot.
Tiberius looked to shore his support as many people questioned the way he’d stripped Octavius of office. His chance came when the King of Pergamum died, and left his kingdom and all its land to Rome in his will. Tiberius stepped in to tell the Senate he would draft a bill to deal with this new land and submit it directly to the people. This outraged the Senate: foreign policy had always been their domain, and even those who had been silent during his squabble with Octavius now spoke against Tiberius. Fearing retribution, Tiberius ran for tribune a second time: an unprecedented political act that would make his person sacrosanct. On Election Day, Tiberius received a warning that the wealthy elites of Rome planned to assassinate him and stop his re-election. He tried to indicate to his supporters that his life was in danger, but since they couldn’t hear him above the din, he did so by pointing at his head. One onlooker interpreted this as him asking for a crown, and brought this news to the Senate. They called upon the consul to stop it, but he said he would just nullify the vote if that happened. One Senator did not accept this response. He gathered his own mob to take things into his own hands. They caught Tiberius and killed him, along with 300 of his followers. Many who escaped were later executed or exiled, and Gaius – the brother of Tiberius – was refused when he asked for his brother’s body back to hold funeral rites. It was the first great act of political violence in Rome, and it set the stage for a new age of violent upheaval. After all, harming a tribune was supposed to be not only illegal but a sin before the gods, so if this mob had done just that and escaped without punishment, what other laws could not be broken? Into this troubled stage stepped Gaius Gracchus, already known for his fiery disposition and now determined to take up his dead brother’s cause.
August 30, 2016
Published on 13 Aug 2016
Tiberius Gracchus took up the cause of land reform, determined to restore property rights to the average citizen and curtail the abuses of the rich. But another tribune vetoed his proposed law, so Tiberius began to fight back with his own veto and ground the government to a halt. At last, he held a special vote to remove his opponent from office so that his land reform bill could pass. ____________
Tiberius Gracchus returned from war to find a Rome where soldiers reaped no rewards for their service, and the rich worked all the farmland with slaves who were the spoils of war. Determined to fix this, he took up the cause of land reform. His first goal: to restore the ager publicus, or “public land.” Tradition held that some of the land won in war would always be set aside and distributed to the citizens, with no one allowed to hold more than 500 acres of it, but the rich had ignored that law so long that no one even tried to enforce it. Tiberius got himself electrd as tribune and wrote a law that didn’t punish the rich, just asked them to surrender their illegally held land after the state paid them for it. Nevertheless, the richest of the rich accused him of trying to foment a revolution. They tried and failed to turn the people against Tiberius, but when his law passed anyway, they recruited one of his fellow tribunes to veto the law. Tiberius responded by drafting another, harsher version of the law – only to see this one vetoed also. He began using his own veto in retaliation, refusing to let any other law pass and stopping the senate from withdrawing money from the treasury. Government ground to a halt. Roman government had always relied on the responsible use of powers that were now being abused, and the snowball began to roll downhill. Tiberius took the unprecedented measure of holding a special vote to get his opponent, Octavius, removed from office by popular vote. Despite Octavius’s efforts to hold out, the people voted with Tiberius: Octavius was stripped from office and barely escaped from the Campus Martius with his life after an angry crowd turned on him. But at last, with no more opposition from Octavius, the agrarian reform law proposed by Tiberius Gracchus passed.
August 26, 2016
France, like the rest of the liberal West, gets this exactly and lethally wrong. First we forbid individuals their natural right to set the rules within their own property, to exclude and admit who they choose, to demand the burkini or to ban it. Then we set the law on people for the crime of wearing too much cloth on the public beach. A photograph is reproduced worldwide showing three armed male policemen standing over a Muslim woman and making her remove the clothes she considers necessary for modesty. Whatever your opinion of Islam and its clothing taboos, does anyone in the world believe that this makes the next jihadist attack less likely? To call it “security theatre” would be a compliment. The popular entertainment it calls to mind is that of the mob stripping and parading une femme tondue.
Natalie Solent, “Security strip”, Samizdata, 2016-08-24.
August 24, 2016
Published on 26 Jun 2015
In this video, we take a look at common goods. Common resources are nonexcludable but rival. For instance, no one can be excluded from fishing for tuna, but they are rival — for every tuna caught, there is one less for everyone else. Nonexcludable but rival resources often lead to what we call a “tragedy of the commons.” In the case of tuna, this means the collapse of the fishing stock. Under a tragedy of the commons, a resource is often overused and under-maintained. Why does this happen? And how can we solve this problem? Like we’ve done so many times throughout this course, let’s take a look at the incentives at play. We also discuss Nobel Prize Winner Elinor Ostrom’s contributions to this topic.
June 6, 2016
The Great Depression was the worst economic crisis in U.S. history. From 1931 to 1940 unemployment was always in double digits. In April 1939, almost ten years after the crisis began, more than one in five Americans still could not find work.
On the surface, World War II seems to mark the end of the Great Depression. During the war more than 12 million Americans were sent into the military, and a similar number toiled in defense-related jobs. Those war jobs seemingly took care of the 17 million unemployed in 1939. Most historians have therefore cited the massive spending during wartime as the event that ended the Great Depression.
Some economists — especially Robert Higgs […] challenged that conclusion. Let’s be blunt. If the recipe for economic recovery is putting tens of millions of people in defense plants or military marches, then having them make or drop bombs on our enemies overseas, the value of world peace is called into question. In truth, building tanks and feeding soldiers — necessary as it was to winning the war — became a crushing financial burden. We merely traded debt for unemployment. The expense of funding World War II hiked the national debt from $49 billion in 1941 to almost $260 billion in 1945. In other words, the war had only postponed the issue of recovery.
Even President Roosevelt and his New Dealers sensed that war spending was not the ultimate solution; they feared that the Great Depression — with more unemployment than ever — would resume after Hitler and Hirohito surrendered. Yet FDR’s team was blindly wedded to the federal spending that (as I argue in my 2009 book New Deal or Raw Deal?) had perpetuated the Great Depression during the 1930s.
FDR had halted many of his New Deal programs during the war — and he allowed Congress to kill the WPA, the CCC, the NYA, and others — because winning the war came first. In 1944, however, as it became apparent that the Allies would prevail, he and his New Dealers prepared the country for his New Deal revival by promising a second bill of rights. Included in the President’s package of new entitlements was the right to “adequate medical care,” a “decent home,” and a “useful and remunerative job.” These rights (unlike free speech and freedom of religion) imposed obligations on other Americans to pay taxes for eyeglasses, “decent” houses, and “useful” jobs, but FDR believed his second bill of rights was an advance in thinking from what the Founders had conceived.
Burton Folsom, “If FDR’s New Deal Didn’t End the Depression, Then It Was World War II that Did”, The Freeman, 2014-12-26.
May 20, 2016
Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle — a mere counter in a grotesque and knavish game. If the right pressure could be applied to him, he would be cheerfully in favor of polygamy, astrology or cannibalism.
It is the aim of the Bill of Rights, if it has any remaining aim at all, to curb such prehensile gentry. Its function is to set a limitation upon their power to harry and oppress us to their own private profit. The Fathers, in framing it, did not have powerful minorities in mind; what they sought to hobble was simply the majority. But that is a detail. The important thing is that the Bill of Rights sets forth, in the plainest of plain language, the limits beyond which even legislatures may not go. The Supreme Court, in Marbury v. Madison, decided that it was bound to execute that intent, and for a hundred years that doctrine remained the corner-stone of American constitutional law.
H.L. Mencken, The American Mercury, 1930-05.
January 7, 2016
Some advice for the beleaguered and backward states of Illinois, Massachusetts, et al.: If police are not obliged to ask our permission before recording their public encounters with us, then we should not be obliged to ask their permission before recording our public encounters with them. That states generally dominated by so-called progressives should be so insistent upon asymmetric police powers and special privileges for government’s armed agents is surprising only to those who do not understand the basic but seldom-spoken truth about progressivism: The welfare state is the police state.
Why Illinois Republicans are on board is another matter, bringing up the eternal question that conservatives can expect to be revisiting frequently after January: What, exactly, is the point of the Republican party?
Illinois is attempting to resurrect what the state’s politicians pretend is a privacy-protecting anti-surveillance law; in reality, it is the nearly identical reincarnation of the state’s earlier anti-recording law, the main purpose of which was to charge people who record police encounters with a felony, an obvious and heavy-handed means of discouraging such recording. Illinois’s state supreme court threw the law out on the grounds that police do not have a reasonable expectation of privacy when carrying out their duties, though police and politicians argued the contrary — apparently, some part of the meaning of the phrase “public servants” eludes them. The new/old law is, by design, maddeningly vague, and will leave Illinois residents unsure of which encounters may be legally recorded and which may not.
Here is the solution: Pass a law explicitly recognizing the right of citizens to record police officers. It is important to note that such a law would recognize a right rather than create one: Government has no legitimate power to forbid free people from using cameras, audio-recording devices, or telephones in public to document the business of government employees. The statute would only clarify that Americans — even in Illinois — already are entitled to that right.
Kevin D. Williamson, “Prairie State Police State”, National Review, 2014-12-10.
December 12, 2015
Kevin Williamson on the travesty that is the no-fly list:
There are many popular demons in American public life: Barack Obama and his monarchical pretensions, Valerie Jarrett and her two-bit Svengali act, or, if your tastes run in the other direction, the Koch brothers, the NRA, the scheming behind-the-scenes influences of Big Whatever. But take a moment to doff your hat to the long, energetic, and wide-ranging careers of three of our most enduring bad guys: laziness, corruption, and stupidity, which deserve special recognition for their role in the recent debates over gun control, terrorism, and crime.
The Democratic party’s dramatic slide into naked authoritarianism — voting in the Senate to repeal the First Amendment, trying to lock up governors for vetoing legislation, and seeking to jail political opponents for holding unpopular views on global warming, etc. — has been both worrisome and dramatic. The Democrats even have a new position on the ancient civil-rights issue of due process, and that position is: “F— you.” The Bill of Rights guarantees Americans (like it or not) the right to keep and bear arms; it also reiterates the legal doctrine of some centuries standing that government may not deprive citizens of their rights without due process. In the case of gun rights, that generally means one of two things: the legal process by which one is convicted of a felony or the legal process by which one is declared mentally incompetent, usually as a prelude to involuntary commitment into a mental facility. The no-fly list and the terrorism watch list contain no such due process. Some bureaucrat somewhere in the executive branch puts a name onto a list, and that’s that. The ACLU has rightly called this “Kafkaesque.”
Here’s where our old friends laziness and stupidity play a really prominent role: The no-fly list is not composed of identities, but merely names. Lots of people share the same name. So, for instance, the late Senator Ted Kennedy ended up on the no-fly list, because somebody had used his name (or a similar name) as an alias. Among people called “Kevin Williamson,” we find myself, the famous Scream screenwriter, a notable Scottish politician and political activist (he is also the author of Drugs and the Party Line), a Canadian entertainment journalist, a fine woodworker who sells his wares on Twitter, and a famous underwear model for whom I am unlikely to be mistaken. If a trip to the DMV or the IRS one day eventually sends me over the edge into full-on barking mad durka-durka-Mohammed-jihad territory, those other Kevin Williamsons are going to suffer simply because we share a name.
And, of course, every third actual dirtbag terrorist has the same name as a million other ordinary schmoes, because Arabic names tend to be a little repetitive. (Is there a Mohammed al-Mohammed in the house? Seriously, go to LinkedIn and see how many graphic designers and accountants walking this good green Earth share that name.)
November 14, 2015
Charles Murray explains why so many Americans are feeling alienated from their own government:
I have been led to this position by what I believe to be a truth about where America stands: The federal government is no longer “us” but “them.” It is no longer an extension of the people through their elected representatives. It is no longer a republican bulwark against the arbitrary use of power. It has become an entity unto itself, separated from the American people and beyond the effective control of the political process. In this situation, the foundational principles of our nation come into play: The government does not command the blind allegiance of the citizenry. Government is instituted to protect our unalienable rights. The more destructive it becomes of those rights, the less it can call upon our allegiance.
I won’t try to lay out the whole case for concluding that our duty of allegiance has been radically diminished — that takes a few hundred pages. But let me summarize the ways in which the federal government has not simply become bigger and more intrusive since Bill Buckley founded National Review, but has also become “them,” and no longer an extension of “us.”
In 1937, Helvering v. Davis explicitly held that the federal government could spend money on the “general welfare,” establishing that the government’s powers were not limited to those enumerated in the Constitution. In 1938, Carolene Products did what the Ninth Amendment had been intended to prevent — it limited the rights of the American people to those that were explicitly mentioned in the Constitution and its amendments. Making matters worse, the Court also limited the circumstances under which it would protect even those explicitly named rights. In 1942, Wickard v. Filburn completed the reinterpretation of “commerce” so that the commerce clause became, in the words of federal judge Alex Kozinski, the “Hey, you can do anything you feel like” clause.
Momentous as these decisions were, they were arguably not as crucial to the evolution of the federal government from “us” to “them” as the decisions that led to the regulatory state. Until the 1930s, a body of jurisprudence known as the “nondelegation doctrine” had put strict limits on how much power Congress could delegate to the executive branch. The agencies of the executive branch obviously had to be given some latitude to interpret the text of legislation, but Congress was required to specify an “intelligible principle” whenever it passed a law that gave the executive branch a new task. In 1943, National Broadcasting Co. v. United States dispensed with that requirement, holding that it was okay for Congress to tell the Federal Communications Commission (FCC) to write regulations for allocating radio licenses “as public convenience, interest, or necessity requires” — an undefined, and hence unintelligible, principle. And so we now live in a world in which Congress passes laws with grandiose goals, loosely defined, and delegates responsibility for interpreting those goals exclusively to regulatory agencies that have no accountability to the citizenry and only limited accountability to the president of the United States.
The de facto legislative power delegated to regulatory agencies is only one aspect of their illegitimacy. Citizens who have not been hit with an accusation of a violation may not realize how Orwellian the regulatory state has become. If you run afoul of an agency such as the FCC and want to defend yourself, you don’t go to a regular court. You go to an administrative court run by the agency. You don’t get a jury. The case is decided by an administrative judge who is an employee of the agency. You do not need to be found guilty beyond a reasonable doubt, but rather by the loosest of all legal standards, a preponderance of the evidence. The regulatory agency is also free of many of the rules that constrain police and prosecutors in the normal legal system. For example, regulatory agencies are not required to show probable cause for getting a search warrant. A regulatory agency can inspect a property or place of business under broad conditions that it has set for itself.
There’s much more, but it amounts to this: Regulatory agencies, or the regulatory divisions within cabinet agencies, operate as self-contained entities that create de facto laws that Congress would never have passed on an up-or-down vote. They then act as both police and judge in enforcing the laws they have created. It amounts to an extra-legal state within the state.
I have focused on the regulatory state because it now looms so large in daily life as to have provoked a reaction that crosses political divides: American government isn’t supposed to work this way.
October 17, 2015
Published on 13 Oct 2015
Ken White, founder of the influential group blog Popehat, tells FIRE how he got interested in the First Amendment and discusses anonymous speech on the Internet.
White, who writes for Popehat on a variety of issues, including the First Amendment, criminal justice, and the legal system, said a college project at Stanford University “during … one of the upsurges of controversy on campus about speech codes and speech issues,” opened his eyes to the nuances of the First Amendment.
“I wound up doing my senior honors thesis in college with a law school professor on the subject of legal restrictions on hate speech,” White said. “I thought it was very much emblematic of a very American problem, and that is: How do we express our disapproval — our moral disapproval — for bad things like bigotry, while not restricting liberties?”
Popehat seems to be a space created to do exactly that. The forum has evolved into a blog the contributors describe as a “group complaint” about “whatever its authors want.”
That freedom hasn’t always come so easily for White, who blogged anonymously for more than five years due to concerns his honest blogging might harm his career. He still thinks anonymous speech provides both benefits and drawbacks.
“I think the right to anonymous speech is very central in the First Amendment and in American life,” said White. “Throughout American history, people have said unpopular things, incendiary things, politically dangerous things behind the shield of anonymity. A lot of bad things come with that. There’s some really terrible, immoral, anonymous behavior on the Internet.”
White said there’s also a risk to writing anonymously, and that even while he benefitted from posting behind the security of an online persona, he supports the rights of others to try and discover his true identity. Eventually, White said he gave up the pretext and started blogging under his own name.
For more from White, including why free speech “catchphrases” harm First Amendment discourse, watch the above video.
July 14, 2015
There is not very much good to say about the life and career of Vladimir Lenin, but give the pickled old monster this much: He cut through more than two centuries’ worth of bull and straight to the heart of all politics with his simple question: “Who? Whom?” Which is to say: Who acts? Who is acted upon? Even here in the land of the free, meditating upon that question can be an uncomfortable exercise.
The foundation of classical liberalism, and of the American order, is not the rule of law, a written constitution, freedom of speech and worship, one-man/one-vote democracy, or the Christian moral tradition — necessary as those things are. The irreplaceable basis for a prosperous, decent, liberal, stable society is property. Forget Thomas Jefferson’s epicurean flourish — John Locke and the First Continental Congress had it right on the first go-round: “Life, liberty, and property.” Despite the presence of the serial commas in that formulation, these are not really three different things: Perhaps we should render the concept “lifelibertyproperty” the way the physicists write about “spacetime.”
Kevin D. Williamson, “Property and Peace”, National Review, 2014-07-20.
July 13, 2015
I no longer do much in the way of “serious” photography (my digital SLR has been out of service for a couple of years now), but I still occasionally do a bit of cellphone photography when the occasion arises. On the byThom blog, Thom Hogan provides a long (yet not exhaustive) list of things, places, and people who are legally protected from being photographed in various jurisdictions … and it gets worse:
Funny thing is, smartphones are so ubiquitous and so small, many of those bans just aren’t enforceable against them in their natural state (e.g., without selfie stick), especially if they’re used discriminatingly.
I’m all for privacy, but privacy doesn’t exist in public spaces as far as I’m concerned. Indeed, I’d argue that even in private spaces (malls, for example), that if you’re open for and soliciting business to the public, you’re a public space. As for Copyright, placing artwork in open public spaces (e.g. Architecture) probably ought to convey some sort of Fair Use right to the public, though in Europe we’re seeing just the opposite start to happen. FWIW, I no longer visit and thus don’t photograph in two countries because of national laws regarding photography. Be careful what you wish for, Mr. Bureaucracy; laws often have unintended consequences. As in reducing my interest in visiting your country.
About half of this site’s readers actively practice some form of travel photography, either during vacations or while traveling for business. Note how many of the restrictions on photography start to apply against those that are traveling (locally or farther afield). It’s always easy to impose laws on people who don’t vote for you. it’s why rental car and hotel room taxes are so high, after all.
What prompted this article, though, wasn’t any of the latest photography ban talk, though. Here in Pennsylvania we have fairly restrictive regulations on “recording” another person (e.g. conversations, phone calls, meetings, etc.). In some states, it only takes one party to consent for a recording to be legal. Here in Pennsylvania it takes all parties to consent to being recorded.
H/T to Clive for the link.
June 14, 2015
At the Foundation for Economic Education, Ryan Radia discusses the free-speech-quashing subpoena issued by a federal prosecutor in New York state:
In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.
A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.
One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”
Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”
This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.
Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.
Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.