The Agenda

Mandating Libertarianism at the Federal Level?

Matt Yglesias writes:

A set of far-right academics, think tank types, and media figures have long promoted the idea that judges ought to throw out existing constitutional law and instead insist on using judicial review to essentially mandate libertarianism at the federal level. This has never been something that practical conservative politicians or actual conservative judges have been very interested in. But during the debate over the Affordable Care Act, the notion that the individual mandate was unconstitutional took hold in the conservative echo chamber.

This is a not entirely unfair characterization of my views: I think that some of the decisions made by the Supreme Court in the New Deal era undermined competitive federalism in the United States. I tend to think that legislators should do the heavy lifting, and that judges should generally exercise restraint. But in some areas, like restoring the federal common law, I do think that judges have a role.

But I’m not sure I’m on the far-right. Moreover, I think that Medicare-for-all would pass constitutional muster under a more stringent regime, as Michael Greve has argued. It is the mandate that raises thorny questions for us far-right constitutionalists. I should add that far-right constitutionalists are generally comfortable with the idea of California or Hawaii embracing a far more robust welfare state; they’re just wary of letting Washington, D.C. impose one-size-fits-all regulations. It’s not obvious to me that “mandating libertarianism at the federal level” wouldn’t prove very advantageous for social democrats working in the states.

Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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