Thanks to Carl for his fine commentary on the most recent effort to define a consistently libertarian judicial activism. He reminded me that I forgot to link to a brief (and flawed) article I wrote sometime ago appreciatively criticizing Ilya Somin’s instructive review of a book by Damon Root that means to “mainstream” this point of view. Both Somin and Root responded to me, the former in the Washington Post and the latter in Reason.
Among Carl’s many excellent observations is that this confident libertarianism is written to appeal to mainstream liberal jurisprudence, to what’s being taught most of the time in most law schools. The theory is simple: Let’s apply to property rights and related issues of economic regulation the same aggressive view of “substantive due process” found in Planned Parenthood v. Casey and Lawrence v. Texas as applied to reproductive choice and relational autonomy. The key to jurisprudence is using the single word “liberty” to strike down all laws that arbitrarily deprive individuals of their liberty or autonomy.
This view might be understood to be fairly mainstream now with much of the establishment of the Republican party. Big donors from the Koch brothers to Peter Thiel have devoted time and treasure to both economic and “social” deregulation. The same principle that causes them to work for “marriage equality” also induces them to work for “right-to-work” laws, especially in the states with a strong tradition of unions, such as Michigan and Wisconsin. The arc of liberty is moving in a single direction, from this view.
I want to emphasize that I have no objections to working politically to vote in same-sex marriage or the right to work or to repeal Obamacare. I applaud those efforts especially insofar as they stimulate democratic deliberation about reasonably competing views of liberty, beginning with Carl’s instantly famous five views.
My objection, as Carl suggests, is to the conclusion that abstract or unencumbered “Lockean individualism” should be imposed in every nook and cranny of social life by the Court. My objection is to the view that the law — especially state and local law — is completely disabled by our Constitution from being based on thinking of members of our species as parents, children, citizens, and creatures — or as more than free individuals. My objection is to the tyrannical implications of marginalizing (by declaring, in effect, irrevocably unconstitutional) in the public square those who think, for example, that our Constitution can’t be construed as fundamentally hostile to state and local civic deliberation or to the transpolitical relational institutions — such as the churches — that teach that ”Lockean individualism” is, in truth, a very partial and even distorted view of who we are.
One reason I admire the newly confident libertarian jurisprudence is that it should serve to rouse conservatives from their dogmatic slumber full of dreamy imaginings based on the conviction that the war between the Founders (good) and the Progressives (bad) explains recent American political history.
The consistently libertarian view seems to imply that Progressivism in the sense of progress toward bigger and better government based on the “historicist” premise that Americans should be regarded as parts of an evolutionary national community is dead. Those in the know these days affirm the techno-progressivism that manifests itself in the enveloping dynamics of the 21st-century global competitive marketplace. The movement is toward ever-upward when it comes to peace, prosperity, and freedom. It points away from nature or biological determination, in an insistently transpolitical movement in the transhumanist direction.
I also think that this new judicial activism is naïve, insofar as it’s forgetful that the promising convergence of initiatives on behalf of liberty on the present Court depends on Republican electoral victories based on campaigns directed against judicial activism. So there might now be a libertarian “post-political” fantasy in America that’s not as different as one might think from the one that’s plagued Europe for a while.