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Libertarianism, Neoconfederacy, and McCulloch

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Corey Robin comments on the debate about neoconfederacy and libertarianism, which had generated excellent posts by Jacob Levy and Randy Barnett. The latter is particularly good on the selective nature of the southern commitment to “states’ rights,” something we can all agree on. (I also strongly recommend Barnett’s paper on the origins of the Fourteenth Amendment.) As Robin notes, it is interesting that even for Barnett the standard historiography of the Civil War was a relatively recent discovery.

Unfortunately, unless it’s escaped easy detection on Google, Barnett has yet to comment on Shelby County. But the underlying discussion led me back to Barnett’s discussion of McCulloch v. Maryland in Restoring the Lost Constitution. Essentially, Barnett tries to argue for a middle ground between Marhsall’s latitudinarian reading of the necessary and proper clause (“convenient, “useful”) and the far more narrow Jeffersonian reading, which would essentially render the clause a nullity by requiring strict necessity. Barnett essentially calls for (to borrow the term from equal protection law) an intermediate level of scrutiny — a means/ends requirement “neither so strict that no statute can pass muster nor so lenient that any statute can pass.”

Of course, Barnett’s analysis (which I would say is an effective overruling of McCulloch, and both he and the Court claim is just a narrower reading of Marhsall’s essential holding) got five votes from the Supreme Court in Sebelius. In particular, Roberts’s argument that “[e]ven if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective” tracks Barnett’s analysis almost perfectly (not surprisingly, since Barnett was the architect of the legal challenge.) And while I don’t know if Barnett himself endorses its application to Section 2 of the 15th Amendment, Roberts’s use of the “appropriate” qualifier to impose an ill-defined narrow tailoring requirement on Congress in Shelby County is a similar kind of argument.

In the abstract, Barnett’s reading of the necessary and proper clause seems reasonable, but as these two cases show the implications are in fact quite radical. After all, in both cases the fit between ends and means was very tight. The individual mandate was crucial to making the regulatory framework of the ACA workable (as the five conservatives implicitly conceded by holding that it could not be severed from the rest of the act), and the few potential alternatives for solving the free rider problem — such as requiring people who abjured health insurance to sign waivers denying themselves access to free emergency care — are clumsy and unlikely to be workable. Similarly, the combination of the limited number of states covered by preclearance requirements and the bailout provision gave Section 4 an obviously strong relationship between means and ends, and the idea that the appropriate relationship between means and ends requires Congress to always use the most recent data is a recipe for chaos if it were to be taken seriously.

McCulloch as it has been generally been interpreted since the Civil War is the superior way of looking at the issue; the more libertarian interpretation is just a recipe for judges to throw out legislation based on policy judgments that don’t lead to coherent constitutional doctrine. And while many libertarians are strongly personally opposed to white supremacy and neoconfederate apologias, libertarian conceptions of federal power continue in practice to frustrate the enforcement of civil rights.

…Barnett responds, and not surprisingly was well aware of the conventional historiography despite the implication of his initial post. Robin has more here.

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