The Corner

Re Economic Liberty and The Courts

I would be more than happy to read all the Supreme Court decisions defending economic liberty, post-1937. Where are they? And, here goes — the fundamental problem with the libertarian approach is its embrace of the judiciary as the institution that will best defend individual liberty, including economic liberty — as a kind of benevolent Olympian council. But like any oligarchy, ultimately it abuses its power. At this point, any restraint it exercises is voluntary for it need not fear an effective response by the other branches. Indeed, any suggestion of impeachment (a modern day dead-letter, for the most part) or Article III limitations are met with tremendous resistance. It’s really quite odd how libertarians embrace such a concentration of authority in the hands of so few — hoping that only if the right people are appointed to the Court, and enough of them who share their principles, that cause of liberty will be advanced. And it’s remarkable that despite 70 years of evidence of the judiciary’s lurch to the left, they continue to argue for judicial supremacy. While it’s true that the elected branches can often be no better, change and redirection are at least more likely through the ballot box. Not so with lifetime appointed judges. And while it is also true, as our libertarian friends remind us, that states can and do often violate individual rights, a primary strength of federalism is that state decisions are not national decisions. This is a long way to say that I find more similarity between the liberal and libertarian approach than the liberal and conservative approach.


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