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What Would a Libertarian Supreme Court Justice Look Like?

Old 12-05-05, 08:21 AM
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What Would a Libertarian Supreme Court Justice Look Like?

What Would a Libertarian Supreme Court Justice Look Like?

by James Ostrowski

[Below are my prepared remarks as a panelist at a University at Buffalo Law School Federalist Society program on the recent Supreme Court nominations. I spoke last after a very liberal law professor and a conservative constitutional law professor. In her remarks, the liberal professor had summed up her position: "We believe in the federal government." I responded, speaking for many or most libertarians: "We donít." I reminded the probably left-wing audience that it is the liberalsí beloved federal government that is fighting the war they oppose in Iraq. I asked, while liberals say that when states violate rights, the federal government should step in, where do we go when the federal government violates our rights, the United Nations? I never got a response, nor did I get a response the last time I asked that question.

The conservative professor quoted Justice Scalia who, in response to those who believe in a "living constitution," said "the constitution's dead; itís parchment." I said, while that quip is quite amusing, I believe the constitution is dead for reasons Scalia would probably not accept. The framers had rejected a provision that would have allowed the federal government to use force against recalcitrant states. Thus, the voluntary nature of the union was an important check on centralized power for many decades. This understanding was, however, destroyed in 1861. Secondly, while Madison had argued that the militia system served as another powerful check on federal power, that system is also dead, being replaced by a permanent and enormous standing army. Yes, the original constitution is indeed dead!

Finally, the liberal professor complained about "corporate power". I said, I had never received a tax bill from a corporation. She cleverly said, I had, in the indirect form of special tax breaks for corporations. I responded, if the New Deal court she was so vociferously defending had not eviscerated the equal protection clause, such nonsense as corporate welfare would have been stricken down long ago.]


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What would a libertarian Supreme Court Justice look like? Thatís a very difficult question to answer without exhuming the bodies of Grover Clevelandís appointees.

The constitutional philosophy of a libertarian would most likely be Jeffersonian. Jefferson hasnít been a force in American politics since Cleveland left office in 1897.

On top of that is the problem that libertarianism is now a more hard-core doctrine than it was in Jeffersonís or Clevelandís time. How do you combine the modern doctrine of libertarianism with the small "r" republicanism of Jefferson? Thereís no easy answer to that question.

Two more problems: The Jeffersonian republic dies in 1861 when federal troops invade Virginia, ushering in an era of federal supremacy that continues to this day and is inconsistent with Jeffersonís vision.

Iím afraid the problems are even deeper and older than that. The philosophical ancestors of libertarians were not too happy about the constitution in the first place and would have been happy with the old Articles of Confederation. They were the Anti-Federalists of their day.

So, how would a libertarian justice wrestle with the constitution that replaced the idyllic Articles and was massively bolstered by the Consolidation of 1861?

Years ago, I read about a study that analyzed a conservative justiceís judicial opinions. It found that he tended to favor the government over the individual and the federal government over state governments.

So what would a libertarian justiceís tendencies be?

A libertarian would tend to favor the individual in any conflict with the government. As Jefferson wrote, "To secure these rights, governments are instituted." Governments serve us, not the other way around.

A libertarian would tend to favor state governments over the federal government. As James Madison said, summing up the American structure of government: "The powers delegatedÖto the federal government are few and defined."

And a libertarian would tend to favor the legislature over the executive at any level of government. As James Madison wrote in Federalist 51 regarding the ability of each branch to defend itself from actions by the others, "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates."


Philosophical Tendencies of Potential Judges

Liberal:

Individual v. Government (civil liberties) = I
Individual v. Government (economic issues) = G
Federal Government v. States = F
President v. Congress = ?

Conservative:

Individual v. Government (civil liberties) = G
Individual v. Government (economic issues) = I
Federal Government v. States = ?
President v. Congress = ?

Libertarian:

Individual v. Government (civil liberties) = I
Individual v. Government (economic issues) = I
Federal Government v. States = S
President v. Congress = C

Another way of looking at it is this. When dealing with constitutional provisions that speak of government power, the libertarian would be a strict constructionist. For example, the powers of Congress under the commerce clause would be construed narrowly. However, when dealing with provisions defining individual rights, the libertarian would be a loose constructionist.

Clearly, there hasnít been a libertarian justice in my lifetime. The most libertarian current justice, in my view, is Clarence Thomas, but keep in mind that I say that based on a narrow range of opinions on a small number of issues. Specifically, he would narrowly construe the federal governmentís power under the commerce clause and thus increase individual liberty. He would, if given the chance, defend the individualís right to bear arms, which is clearly the point of the Second Amendment. And he would favor the states over the federal government in their intra-governmental disputes as in the term limits case. I canít vouch for his libertarian views on other issues and they may be sparse. Still, libertarian views are so infrequently voiced on the Supreme Court that we greatly appreciate it when they are.

So what would a libertarian justice look like? See to the right (which points to a picture of Thomas Jefferson), but that radical fellow could never get nominated today.

December 5, 2005

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "Whatís Wrong With Buffalo." See his website.

Copyright © 2005 LewRockwell.com
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I saw this posted on another forum and was just wondering what some of my fellow PoliOtters thought of it...besides c-man (of course).

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Old 12-05-05, 08:49 AM
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I wonder if the United States would have been able to win the second World War if it had been a loose confederation of individual states? I doubt it.
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Old 12-05-05, 08:56 AM
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Do Libertarians (note the capital L) not think fighting the Civil War was justified?

Not a leading question, just curious.
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Old 12-05-05, 09:14 AM
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Depends on your history revision of the Civil war.

Yes, the north was fighting to abolish slavery. I personally don't think the south was fighting to keep "it" (slavery) so much as they were fighting to keep their economy.

At the time of the civil war, the north was industrialized and had metropolitan cities. The south was still mainly farming/plantations.

They believed, without slavery, their whole way of life was in peril. How would they survive?

See what I mean?

I'm not justifying slavery, I'm showing how it is not a black & white "What would a libertarian do?" type of question.

See, the great thing about state's rights in the US is (TODAY), if you don't like a state's particular law - MOVE.

And just as with pro-choice people today who would help people get across state lines - slavery would not be possible today even if we hadn't had the civil war.
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Old 12-05-05, 09:28 AM
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God, I don't want to think about it.
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Old 12-05-05, 09:29 AM
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Originally Posted by B.A.
....
I saw this posted on another forum and was just wondering what some of my fellow PoliOtters thought of it...besides c-man (of course).



I think the author doesn't have a very good understanding of our history, specifically of the framers.
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Old 12-05-05, 09:35 AM
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Originally Posted by mosquitobite
Depends on your history revision of the Civil war.
Oh, I know the arguments against fighting the Civil War. I was just wondering if this was an actual Libertarian position.
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Old 12-05-05, 09:44 AM
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I know some libertarians on this forum that don't believe that congress is the supreme branch of government.
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Old 12-05-05, 09:53 AM
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Originally Posted by Pharoh
I think the author doesn't have a very good understanding of our history, specifically of the framers.
How so?
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Old 12-05-05, 11:00 AM
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Originally Posted by B.A.
How so?

By the assertation that Jefferson was libertarian. He wasn't.


And by his simplistic assessment that 'states rights' was always a core tenet and belief of the framers. It wasn't.
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Old 12-05-05, 11:22 AM
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Jefferson wasn't a framer either.

Jefferson was decidedly more of a libertarian than was Hamilton or Madison.

Red Dog,

Do you consider Clarence Thomas to be the most 'libertarian' of the justices?
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Old 12-05-05, 11:32 AM
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Originally Posted by classicman2
I know some libertarians on this forum that don't believe that congress is the supreme branch of government.
I certainly don't subscribe to that Wilsonian notion.
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Old 12-05-05, 11:34 AM
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Originally Posted by wendersfan
I certainly don't subscribe to that Wilsonian notion.
What branch of government did the framers give the power of the purse to?
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Old 12-05-05, 11:35 AM
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Originally Posted by classicman2
Jefferson wasn't a framer either.

Jefferson was decidedly more of a libertarian than was Hamilton or Madison.

...


It could reasonably be argued that Madison actually was, particularly given Jefferson's fondness for the power of the Statehouses.
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Old 12-05-05, 11:39 AM
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Madison favored a more powerful central government than did Jefferson. Granted they both favored a Bill of Rights - but so did a hundred others.

I'm not certain Jefferson, if Jefferson had he been a delegate, would have voted for ratification of The Constitution.
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Old 12-05-05, 11:41 AM
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Old 12-05-05, 01:27 PM
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Originally Posted by classicman2
Madison favored a more powerful central government than did Jefferson. Granted they both favored a Bill of Rights - but so did a hundred others.

I'm not certain Jefferson, if Jefferson had he been a delegate, would have voted for ratification of The Constitution.


Madison, much like his mentor, changed drastically over a short period of time. Granted, he changed far less, and far less often, than Jefferson.
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Old 12-05-05, 01:31 PM
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Originally Posted by classicman2
Madison favored a more powerful central government than did Jefferson. Granted they both favored a Bill of Rights - but so did a hundred others.

I'm not certain Jefferson, if Jefferson had he been a delegate, would have voted for ratification of The Constitution.
And Jefferson also favored a permanent alliance with France, while Washington and Adams wanted no foreign entanglements. Whats the libertarian position there?

Last edited by Tommy Ceez; 12-05-05 at 01:41 PM.
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Old 12-05-05, 01:36 PM
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Originally Posted by Pharoh
Madison, much like his mentor, changed drastically over a short period of time. Granted, he changed far less, and far less often, than Jefferson.
As Red Dog says - Madison became more Hamiltonian and less Jeffersonian.

I say that sometimes myself.
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Old 12-05-05, 01:42 PM
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WOuld Jefferson ratified the constitution? Who knows, but he did believe that all laws should expire every 20 years, so each generation could make thier own laws...so maybe its better he wasnt there.
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Old 12-05-05, 01:46 PM
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Originally Posted by classicman2
As Red Dog says - Madison became more Hamiltonian and less Jeffersonian.

I say that sometimes myself.

When? He surely became more 'Jeffersonian' in the years following the ratification of the Constitution. I agree though if you are refering to the time when he came to power.
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Old 12-05-05, 02:27 PM
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Originally Posted by Pharoh
When? He surely became more 'Jeffersonian' in the years following the ratification of the Constitution. I agree though if you are refering to the time when he came to power.

I'm speaking of after the time he became President and his later years.
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Old 12-05-05, 02:37 PM
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Originally Posted by classicman2
I'm speaking of after the time he became President and his later years.


I thought so, hence my agreement. Of more concern though, at least how it pertains to the original thread, is how he changed from the time of the Convention until Jefferson's election.
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Old 12-05-05, 05:44 PM
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Originally Posted by classicman2
Red Dog,

Do you consider Clarence Thomas to be the most 'libertarian' of the justices?


Based on outcome, I'd say Kennedy, and I have said this on numerous occasions. He's pretty pro-business and pro-civil/individual liberties. Note that libertarian does not necessarily mean consistent to the text of the Constitution. That why I call my political philosophy constitutional libertarianism. The (text of the) Constitution is the construct which we must operate under and thus always trumps.
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Old 12-05-05, 05:47 PM
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Originally Posted by classicman2
I know some libertarians on this forum that don't believe that congress is the supreme branch of government.

There is no supreme branch of government according to the Constitution.
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