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Libertarian Constitutional Myths

[ 77 ] May 11, 2011 |

One of the better moments in the utter dismantling of the arguments that the ACA is unconstitutional performed by the 4th Circuit yesterday was Diana Gribbon Motz pointing out that Daniel Webster managed to give four days worth of oral argument on the commerce clause without mentioning the “activity” that conservatives have been convinced since 2009 was central to the clause’s point.   David Bernstein thinks progressives should be careful about this:

I don’t think that the Democrats want to fight this battle over the 18th or early 19th century understanding of Congress’s power to regulate interstate commerce.

Well, actually, I would have no problem with the ACA being evaluated according to an “early 19th century” understanding of the commerce clause — if the most important Supreme Court opinions of that period count.   The libertarian trick is to pretend that there was a consistent, uncontroversial understanding that the federal government had a very limited ability to regulate interstate commerce that was broken only during the New Deal.    But, unless you believe that John Marshall and Alexander Hamilton lack the constitutional authority of Roger Taney and James McReynolds, that’s not the case.  Looking at the long sweep of American history, it’s the Jacksonian and Lochner eras that are anomalous, and both were rejected as decisively as can be imagined.

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Comments (77)

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  1. chris says:

    Second link is broken.

  2. Ed Marshall says:

    I don’t *think* this Court would do it, but if Stevens was replaced by another Bush era style appointee, I can completely see them rediscovering a “right to contract” in the due process clause Lochner style.

    • timb says:

      Isn’t it weird that they want to return to Lochner? Who wants child labor (besides Tea Party activists)?

      • DrDick says:

        Pretty much the entire elite wing of the GOP, as it would dramatically drive down wages.

      • richard says:

        Lochner wasn’t a child labor case. It was a restriction on the hours that bakers could work (which the Supreme Court held violated the implicit right to contract of workers and employers). Bad decision but not a child labor case

        • ploeg says:

          Not Lochner itself, true, but the doctrine was used to overturn federal regulation of child labor.

          • rea says:

            No more minimum wage. No more overtime.

          • richard says:

            I’m not so sure that was the case. The US Supreme Court case that struck down federal child labor laws was Dagenhart and that was based on a ruling, later overruled, that such laws were outside the commerce clause power given to Congress. I don’t think Dagenhart relied on the Lochner right of contract rationale. However there are a series of cases commonly referred to as the Lochner Era which include Lochner and Dagenhart and stand for severe restrictions on the power of Congress to act in economic matters. However the rationale used in the Lochner case was not, as far as I can recall (although law school was a long time ago and I don’t get many cases now on the question of federal authority over child labor), used in the cases that overturned child labor regulations

            • Scott Lemieux says:

              Richard is right — Hammer was a commerce clause case, not a right to contract case. (IIRC, dicta also made it pretty clear that states were permitted to ban child labor, just not the feds.)

              • timb says:

                I was referring to the New York case where the Supremes overturned the rights of the state (not the Feds) to keep children from working. If you want me to look it up, I will.

      • Joe says:

        What New York case did you cite below?

  3. rea says:

    We no longer have an early 19th Century economy, nor do we have an early 19th Century understanding of economics.

  4. DrDick says:

    Yes, but reality has never been kind to conservatives in general and libertarians in particular.

    • Manju says:

      The collapse of communism and socialism problematize that.

      • L2P says:

        Problematize?

        I guess I missed the libertarian armies fighting off the communists. Conservatives I can at least respect.

        • Manju says:

          I’m tempted to take a 50% victory and go home. But the libertarian zeitgeist is distinctly anti-communist. The blog being referenced here features immigrants from the USSR. Everyone from Ayn Rand to Barry Goldwater hated communism. They ended up being right, and a good chunk of the left jawdroppingly wrong. Both the Nation and the NYTimes engaged in Ukrainian famine denailsim, for example.

          Now, I suppose some libertarians opposed the military-industrial complex, so they get demoted on realism grounds. But that still leaves socialism, theoretical opposition ot communism, and the Goldwater wing so I have to be at least 85% right.

          • DrDick says:

            The collapse of communism had absolutely nothing to do with libertarianism. Rather it reflected an overly centralized planned economy and excessive investment in defense which drew off too many resources from actual productive ends. As with Mark Twain, news of the death of socialism has been greatly exaggerated. It is flourishing in Scandinavia, on the rise in South America, and still hanging on in much of Europe. The libertarian zeitgeist is purely delusional and has never been implemented anywhere outside of Somalia and failed states.

          • richard says:

            I disagree with most of the posts at the Volokhn blog but I read it regularly because the writing is good and the debates can be intellectually stimulating. Eugene Volokh and Ilya Somin are the two Russian immigrants. Somin is a very ardent libertarian, Volokh less so but a strong and principled advocate of maximum free speech and their beliefs in large part come from their hatred (very justified IMHO) of Soviet and Eastern European communism. Some of the other commentators (David Bernstein and David Post come to mind) are much more partisan – Republican apologists – and less intellectually consistent. Orrin Kerr is probably the most mainstream of the commentators (he dislikes the health care act as a matter of pincipal but believes it is constitutional under prevailing interpretations of the Commerce Clause). Randy Barnett is the most vociferous opponent of the individual mandate on constitutional grounds.

            Its easily the best law blog out there (or at least I haven’t seen any liberal law blog that can match it) and although the posters are all conservatives or libertarians, the reader comments are filled with a very large variety of perspectives.

      • rhino says:

        I’m sorry, but when did socialism collapse? Socialism-lite is the framework of the whole civilized world.

        Granted, we have our own right wing zealots and lickers-of-plutocratic-scrotum assaulting that framework as hard as they can, but the bulk of society supports every single ‘socialist’ ideal I can think of from unemployment benefits to subsidized education.

        • BKP says:

          Socialism-lite is the framework of the whole civilized world.

          Do any of the socialists here agree with this?

          • Malaclypse says:

            Do any of the socialists here agree with this?

            I don’t, no. Neoliberalism is the framework of the developed world.

            • BKP says:

              Libertarians lost the message somewhere during the 70s and 80s chasing political success.

              If you aren’t careful, you are going to get treated as a neoliberal apologist.

            • John says:

              Indeed. The welfare state isn’t particularly socialist. It’s an alternative to socialism, and was built, in part, by such famous socialists as Otto von Bismarck, Winston Churchill, and Konrad Adenauer.

            • DrDick says:

              I do not either, really. There has been a somewhat more socialist influence in much of Western Europe, but it is heavily diluted and has been progressively scaled back by conservatives in most countries.

              • Holden Pattern says:

                Yeah, but what most of the western industrialized countries do have is “soshulizm!!11!!” which means a fairly pragmatic mixed economy which doesn’t leave every damn thing up to the vagaries of the magic market fairy.

                In the United States, the level of perceived “soshulizm!!11!!” in each government activity varies depending on whether or not the average upper middle class white exurbanite benefits from that particular activity. So AFDC = MASSIVE “soshulizm!!11!!”. Medicare != any “soshulizm!!11!!”

            • chris says:

              So you don’t think that neoliberalism is a synthesis of classical liberalism and socialism?

              • Hogan says:

                If we’re talking about DLC/Third Way neoliberalism, I’d say it’s an effort to roll back and delegitimize the welfare state. Or at best acquiescence in such an effort.

              • BKP says:

                I think its appeasement.

                There was a time when “socialism” was about worker autonomy. Neoliberalism is all about trying to salvage our current status quo as far as resource distribution goes, which works directly in the face of what I thought was real socialism.

            • rhino says:

              Er, I would beg to differ. Neoliberals have been tearing down the frameworkas fast as they can, but the underpinnings of government in europe and canada are essentially socialist in nature: EI, subsidized or public health care etc etc.

              Not, I hasten to add, nearly as socialist as I would like them to be.

      • Walt says:

        I have to give Ayn Rand credit, in that she makes the argument that conservatives and libertarians clearly believe, but never make openly: the rich deserve to rule us. That’s why they bring up communism. It was an attempt at system other than straightforward rule by the rich, and it was a disaster.

        • BKP says:

          It was an attempt at system other than straightforward rule by the rich, and it was a disaster.

          Of course, libertarian economists were arguing in the 20s and 30s for the liberalizing power of the pricing mechanism and arguing that resource distribution by bureaucrats would veer off in irrational ways.

          While their warnings may have been overstated, they did have a great deal of predictive success.

      • The collapse of communism and socialism problematize that.

        Ah, the libertarian two-step.

        When discussing the Cold War, the economic system of the west was free-market capitalism, and the collapse of communism demonstrates, and was brought about through, the superiority of that free-market capitalism.

        When discussing any other topic, the economic system of the west is shot through with socialism, and needs to be radically altered in order to avoid precisely the same fate as the Soviet Union.

  5. R. Johnston says:

    Is there any aspect of libertarian understanding of the Constitution that isn’t rooted primarily or entirely in mythology unrelated to actual history or constitutional text?

    • Manju says:

      This understanding is not too different from liberal judicial activism, only the logic that liberals apply to marriage equality for example is (also) applied to property rights. So, one might use the Loving precedent to argue that the Equal Protection Clause of the Fourteenth Amendment requires government to treat gays and straights and everyone in between equally. Ergo, the state must recognize same sex marriage.

      Now historically that’s not what the 14th was all about. And the text doesn’t speak directly to it. No doubt, the architects of the ammendment didn’t intend it to work that way.

      But still there’s a certain logical consistency here. This position reflects the original meaning (as opposed to intent) of the text, despite being historically inaccurate. The underlying philosophy of classical liberalism and the “unenumerated rights retained by the people” back up this interpretation.

      Ergo, the right to contract should be retained. In this world view, property rights can’t really be separated from the others. That’s one reason why the professors over at Volokh deem laws banning the use of sharia law (in contracts, in arbitration, etc) unconstitutional.

      • Ed Marshall says:

        Grow up.

      • L2P says:

        I’m not sure who it is who argues that property rights are “separated” from other rights. If, instead of the right to marry rights, homosexuals were denied the right to own property, “liberal activists” would see just as dire an equal protection problem. And if, in some insane alternate reality, contracts were traditionally private affairs intimately connected in personal relationships between two people, then maybe we’d talk about Loving being relevant.

        But it’s a pretty long leap from saying “Equal protection demands that disfavored groups not be attacked with irrational, discriminatory laws” to “The government lacks the power to regulate contracts, ever, because contracts are sacred under the Constitution.” That’s some authentic libertarian bullshit right there.

        • matth says:

          I think Manju meant property rights in the sense of substantive rules limiting the state’s power to regulate economic activity: rights like the Takings Clause, the obligations of contracts clause, and, to some extent, federalism rules.

          And in this sense, “property” rights certainly do have a disfavored position in modern constitutional law. (Recall the famous footnote 4 in Carolene Products.)

          I think your example actually illustrates the point. Modern constitutional law is very concerned with values that relate to personal autonomy in non-economic spheres: a law forbidding homosexuals from owning property isn’t problematic because it forbids people from owning property, but because it burdens a person’s sexual autonomy.

          Going back to Manju’s original point, though, the text of the Constitution seems to vigorously protect a range of economic (or “property”) rights. Judicial enforcement of those rights ended up being problematic, so there’s a reason we’ve gradually turned them over to the political branches. But it’s not obvious that libertarians are more divorced from the text and history of the Constitution than progressives are.

          • Ed Marshall says:

            Seriously? Intent, originalism? Who really believes in any of that. Judicial restraint? Using the real meaning and not the modern libertarian/conservative one. Maybe Hugo Black believed in it (with incredibly dubious results).

          • Hogan says:

            a law forbidding homosexuals from owning property isn’t problematic because it forbids people from owning property, but because it burdens a person’s sexual autonomy.

            Wait what? Is there some specific reason to think that’s true? Case law, law review articles, anything about such laws?

            • chris says:

              I’m forbidden from owning cocaine, which would be my property if I owned any, but I don’t (and can’t). Nobody seems to see a constitutional problem with that, even the people who think it’s bad policy.

        • Manju says:

          “The government lacks the power to regulate contracts, ever, because contracts are sacred under the Constitution.”

          The flaw in your argument is that it only debunks the above construction, which is extreme. But what if contractual rights were not sacred, but rather laws regulating them were held to a higher level of judicial scrutiny?

          • Ed Marshall says:

            What does that mean? There is no legal system on this planet that concerns itself with contractual relationships at the level of the U.S. Supreme Court. What more do you want them to do?

            • Manju says:

              it means the commerce clasue is interpreted so broadly that its hard to figure out what it doean’t cover.

              Then the standard of judicial review is too low for economic rights. We live in a world where the governemt can take your proeperty and give it to a casino. Scotus doesn’t have to defer to the state like that when it comes to other rights. “Public use” should be enough to raise a red flag there.

              There’s a case making its way up the ladder where the state mandated high taxi fees (presumably in order to benefit large taxi companies). The state should be required to justify this more than it has in the past.”Rational basis” looks like an excuse to ignore property rights while pretending not to.

              http://www.ij.org/economicliberty/3768

          • L2P says:

            I guess you’re talking about intermediate scrutiny? Good luck with that – I thought libertarians didn’t like unbridled judicial discretion. But hey, I like arguing over whether an interest is “sufficiently strong” and “sufficiently focused” as much as the next guy, and god knows lawyers need work. (Pick whatever buzzwords you want for “less than compelling” and “less than narrowly tailored.” Nobody except law professors who will never have to write laws or defend them will care.)

            • rea says:

              The formulation is darn near literally insane. What, the Uniform Commercial Code, must meet the heightend scrutiny test?

              You can’t have contracts without legal rules for contracts. Without the law of negotiable instruments, a check is just a piece of paper.

    • DrDick says:

      There is nothing in libertarian “understanding” period that isn’t rooted primarily or entirely in mythology.

      • BigHank53 says:

        To begin with: the idea that human beings, who have convincingly demonstrated their ability to be amoral shitweasels under nearly any circumstances, will agree to follow an arbitrarily generated set of rules and presto! the libertarian free-market heaven will appear on earth.

        Oh, and a pony.

        • DrDick says:

          In market systems, the incentives are to cheat. In large scale societies such as our own, the likelihood of getting away with it often enough to keep going are high. For evidence, see conditions in the late 19th and early 20th century which led to the current regulatory scheme.

  6. Joe says:

    David Bernstein is promoting his rehabilitating (not defending! no no!) Lochner book, including the argument it is not as “anomalous” as some think. This is true on some level. The SC judged the reasonableness of legislation then and now. The change was greater allowance of economic legislation. As with recognition of rights of gays and women, this was a result of gradual development of the modern state where such was found to be more reasonable.

    • richard says:

      I haven’t read Bernstein’s book and while I generally find his posts at the Volokh blog to be offensive (particularly his defense of every action Israel takes and his attacks on everyone who would even mildly criticize Israel), the book has gotten great reviews from Jack Balkin and Mark Tushnet, indicating that it is probably a pretty interesting and informative read.

      • Joe says:

        I have read a short subject on the case by him in a collection edited by Michael Dorf, and found his analysis worthwhile. So, it very well might be interesting (Amazon provides a preview) but his promotion at Volokh has left something to be desired in my opinion, including a tedious back and forth about Brandeis where he refused to answer my questions except in a spin job fashion, until I got annoyed at him and he got all defensive.

      • Murc says:

        Bernstein is a lot more tolerable, dare I say even informative, when he’s either 1) edited, or 2) not writing about Israel. His book is both, so…

  7. Manju says:

    Seriously? This is the problem with the American judicial system?

    Maybe it would help to change the first “the” to an “a”?

  8. Manju says:

    The libertarian zeitgeist is purely delusional and has never been implemented anywhere outside of Somalia and failed states.

    There is nothing in libertarian “understanding” period that isn’t rooted primarily or entirely in mythology.

    It doesn’t sound like we have a substantial disagreement here, just one over definition… i.e. who qualifies as a libertarian. If the label is used exclusively for libertaarrianism’s most the most purists brands then your narrative makes sense. However, I’m using it more generally.

    The term emerged as an alternative to “liberalism” once those who identified as liberals started detaching economic freedoms from the others. The two camps retained the basic structure of classical liberalism, which explains why Marxists took aim at Liberalism itself, but their difference on economic matters necessitated the creation of a separate line of thought.

    Allan Bloom once mocked libertarianism as the left-wing version of the right. That’s because libertarians retained some lefty characteristics Burke hated: disregard for tradition, lack of realism, reductionism, excessive rationalism, and of course a hyper-concern for philosophical purity. Liberals are known to do the latter one in a while too, but usually over civil liberties. At which point the realists mock them with “the constitution is not a suicide pact” and other standard rebukes.

    This leads to one of the most cutting insults aimed at libertarians: they are like communists. We hate this b/c Communists are our Nazis. But there is a // here. The tendency toward philosophical purity leads both camps to deploy the No Real Scotsman Fallacy: communism never failed because real communism never existed.

    The problem is you’re deploying it too (“has never been implemented anywhere outside of Somalia and failed states”).

    • DrDick says:

      The fundamental premises of libertarianism, that markets function best and most efficiently in the absence of government intervention and regulation and that markets are the best and most efficient mechanism for satisfying social needs are demonstrably factually false and have never been implemented anywhere (market systems cannot exist in the absence of government regulation and there are some goods and services more efficiently handled by the government than by markets).

      In regard to the failures of communism/socialism, it is only one variety of socialism that failed (and there is no evidence that this was the form Marx or Engels had in mind). Highly centralized planned economies do not work well, whether Soviet-style communism or monopoly/oligopoly capitalism. For the existing systems there are also factors at work extraneous to the nature of the economic system (high expenditures on defense and colonial expropriation from the Eastern bloc countries by Russia) which led to the collapse.

      • BKP says:

        The fundamental premises of libertarianism, that markets function best and most efficiently in the absence of government intervention and regulation and that markets are the best and most efficient mechanism for satisfying social needs are demonstrably factually false and have never been implemented anywhere (market systems cannot exist in the absence of government regulation and there are some goods and services more efficiently handled by the government than by markets).

        That isn’t the fundamental premise, that is a response to a critique of the fundamental premise.

      • Manju says:

        I thought I addressed this. If you’re limiting libertarianism to those who demand “the absence of government intervention and regulation” then your narrative makes sense, although its largely irrelevant to the real world. But you originally said “reality has never been kind to conservatives in general and libertarians in particular.”

        There you cast a wider net. And the elephant in the room, considering that this is a post on economics, is that those caught in this net turned out to be right about socialism and communism. History has been very kind to the market based economy. So much so that the world’s most prominent left-wing economist can write words like this:

        “…the triumph of capitalism as something preordained by the superiority of our economic system. After all, it now seems obvious to everyone except North Korea and Cuba that a market economy is vastly more productive than one controlled from the center – and the Cuban economy is imploding, while the North Koreans are quite literally starving to death. Moreover, every time a Communist regime collapses, it turns out that the actual state of the economy it governed was far worse than anyone had imagined.”

        -Paul Krugman

        So, in short, the market based economy won. But rhino constructs a world where any market based economy with some government regulation falls within the socialist realm. (“I’m sorry, but when did socialism collapse? Socialism-lite is the framework of the whole civilized world.”) That’s another argument by definition, which I’m trying to avoid.

        The problem is that’s not the way these words were understood at the time of the great ideological battles. So it sounds like socialism collapsed but to save face the socialists now appropriate the success of market based economies, under the guise that they all have some government regulation in them, and call it their own.

        • BKP says:

          So much so that the world’s most prominent left-wing economist can write words like this

          And so much so that typically left-leaning economists consider the “top-down” charge to be a misleading insult.

        • DrDick says:

          Please find me real world examples of libertarians who do not believe that the best regulation is the least regulation. Certainly Brad routinely advocates for truly “free markets” here.

          Secondly, Krugman, as much as I like him, is not a “leftist” economist, but rather a liberal economist and firmly committed to the capitalist system. That he would say something like that is no more surprising than if Hayek said it.

          I do not disagree with Krugman that decentralized market economies work better than centralized command economies. However, that is, as I said above, only one possible version of socialism (though admittedly the most widely attempted). It is not even what Marx envisioned, but rather developed by Lenin based on his socialist theory of the state. Unfortunately, Marx never clearly outlined what he thought a functioning socialist economy or society would look like. The available evidence suggests, however, that he envisioned a decentralized system, like that of the Paris Commune, where workers directly owned and controlled enterprises, rather than the government doing so as a surrogate for the workers. This is also the model of socialism I favor.

          The second quote is not from me and as I said above not something I agree with.

          • BKP says:

            Please find me real world examples of libertarians who do not believe that the best regulation is the least regulation. Certainly Brad routinely advocates for truly “free markets” here.

            Nozick, Hayek, von Mises, James Buchanan, and Friedman all supported very broad governmental regulation of the economy.

            I’m far more radical about my views of the proper role of the state than the vast majority of libertarians.

    • chris says:

      excessive rationalism

      That’s the least insulting insult I’ve seen since someone described James Randi as “obsessed with reality”. I’m tempted to appropriate it as the title of a blog, or something.

      • BKP says:

        That is the foremost insult applied to libertarians and the root of their “loopiness”. Volokh’s inability to solve an asteroid problem is entirely based upon his excessive rationalization.

        Libertarians often run into problems of trying to apply axiomatic rational laws of morality and behavior onto social relations that are not rational and incoherent within typical libertarian moral frameworks.

        • richard says:

          Just to make clear, the asteroid position was that of Sascha Volokh, assistant professor at Emory University and not the position taken by the founder/head of the Volokh Conspiracy blog, Eugene Volokh, professor at UCLA. Many of the libertarian contributers to the Conspiracy, including Eugene, disagreed with Sascha’s (pretty stupid) position on an asteroid attack.

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