Practical Libertarianism for Americans: Part VII

REDEEMING THE PROMISE OF LIBERTY

I ended Part VI by saying that

liberty has been vanquished in the mistaken belief (or hope) that government can effectively and efficiently make us better off, salve our woes, and put an end to social and racial divisions. To those ends, the governed and their governors, walking hand in hand, have taken liberty for a stroll down a slippery slope. Every step they have taken down that slope has made more problematic our journey back up the slope.

Is it possible to journey back up the slope -- even part of the way -- toward something resembling liberty? And if so, by what route?

The Options, in Brief

Rebellion: The central government has more than enough power at its disposal to snuff out anything that smacks of rebellion. Most State governments, as presently constituted, would join the central government. The Spirit of '76 died at Appomattox Court House.

Secession: Secession is as unlikely as rebellion, for the same reasons. The idea of "taking over" a State, propounded by the Free State Project, seems to be going nowhere. And what's the good of taking over a State when the central government already has usurped most of the powers of the States and many of the liberties of their citizens?

Nullification: The nullification of unconstitutional federal statutes by the States has been proposed by no less than Jefferson and Madison and tried by South Carolina. But the idea is as doomed as rebellion and secession. Anyway, nullification is a recipe for legal chaos. If there is to be any kind of federal government -- as there must be, for the common defense and a few other things -- there must be a binding set of federal laws.

Jurisdiction stripping or departmentalism: Removing power from the courts or defying the courts would be good solutions if the courts were the only problem. But jurisdiction stripping and departmentalism, to the extent that they're constitutionally valid, leave us defenseless against legislative and executive fiat. That is why I reluctantly subscribe to the doctrine of judicial supremacy. (See here, here, here, and here.) In fact, I will argue here that the reconstitution of liberty in America depends on the reinstitution of pro-libertarian federalism through the Supreme Court.

Federalism: The Supreme Court could help the cause of liberty by going beyond the Rehnquist Court's rather halting steps toward federalism, that is, the devolution of power and rights to the States and the people, in accordance with the Constitution's original meaning. But for federalism to succeed, the president must nominate the right judges, the Senate must confirm them, and the Supreme Court must roll back 70 years of unconstitutional legislation and judicial usurpation.

At this moment in history, federalism seems the most promising option because the Left is now beginning to understand that the power of the federal government may be used not only to advance its agenda but also to thwart that agenda. Leftists, like conservatives and pragmatic libertarians, may be willing to settle for a "good" solution rather than hold out for the "best" of all possible worlds. But, as I will explain, the way to federalism isn't through a collaboration between Left and Right.

The Left Discovers Federalism

The Left's new respect for federalism arises from its petulant reaction to Bush's re-election. Just after the presidential election of 2004, Jesse Walker, writing at Tech Central Station, noted that

a series of satiric proposals for blue-state secession have been floating around the Internet. Here's an idea for liberals looking for a more realistic political project: Team up with some hard-core conservatives and make a push for states' rights and local autonomy. If you have to get the government involved in everything under the sun, do it on a level where you'll have more of a popular consensus. Aim for a world where it won't matter what Washington has to say about who can marry who and whether they can smoke after sodomy.

Pejman Yousefzadeh, writing at Tech Central Station a few weeks later, produced a roundup of post-election reaction from the Left, in which he noted that

secession is being openly talked about as an option -- with this geographic arrangement being one of the more popular ones in quasi-serious secessionist corners.

(I especially like the idea of Blue-State secession, though its proponents should check out Texas v. White.)

Fantasies about secession then morphed into a discovery -- by the Left -- of the merits of federalism. Consider a post-election post by publius at Legal Fiction (a regressive blog), which includes these tidbits (with my comments in bolded brackets):

From the New Deal on, the courts allowed the legislature to have the final say-so on whether a given law was related to interstate commerce. Maybe the legislature was right, maybe it was wrong – but it was the final arbiter. In the 1990s, the Rehnquist Court (for the first time in over half a century) [unthinkable!] found that a congressionally enacted law did not relate to interstate commerce and was therefore unconstitutional. [Imagine that!] The Court ruled that the law was outside the Article I enumerated powers in a case called Lopez and later in a case called Morrison....

But here’s what was really going on. Lopez and Morrison were less about enumerated powers and more about increasing the power of the judiciary.... [Actually it was about exercising the judiciary's constitutional power. See below.]

So here’s what’s coming – and this will be the “first front” against the New Deal’s legislatively-enacted regulatory state. [That's an almost-accurate description, but don't forget the judiciary's acquiescence.] If Republicans keep appointing judges, the number of laws found to be outside of the commerce power and Article I will grow. [One hopes.] In the beginning, they will be politically appealing decisions such as striking down federal laws banning medicinal marijuana. [You wish!] But with the principle firmly established, the courts will move on to bigger game. Though I doubt any of them will have the guts [a Republicans-are-racists slur] to declare the Civil Rights Act unconstitutional (it was enacted under the commerce power), they could very well strike down the entire environmental regulatory regime. Jeffrey Rosen (via Kevin Drum) recently wrote an excellent article that outlined just how much the administrative state could be threatened.

In short, the greatest danger from a Bush Court is not the overruling of Roe v. Wade but the overruling of the post-New Deal regulatory state.

That’s 100% correct. Rosen also makes the astute observation that, just like in the political sphere, conservatives scream about social issues like abortion to distract Americans from the economic consequences of approving Republican judges. But Rosen misses an essential point. Things like the EPA and the Endangered Species Act and anti-discrimination laws and workplace protections were all legislatively approved by democratic majorities. [So what, if they aren't constitutional?] Conservatives cannot get a political majority to overturn the Clean Air Act, so they’re systematically stocking the judiciary with judges who will. It’s exactly what Bork was talking about, except that the judges are thwarting the political process in the economic and regulatory arena as opposed to the social arena. You can see how it works – Lopez and Morrison shift the power to the judiciary to be the final arbiters. [No, the Constitution does that.] Once that principle is established, GOP judges will start using that power to strike down the regulatory state. [Right on!]

So that’s the first front of the battle-to-come. The second front is a revival of Lochner. This is less likely, but as I explained earlier this week, Lochner revivals are stirring. For non-lawyers, just remember what I said yesterday. The Constitution is an obstacle course of sorts. If a law gets through the Article I obstacles, it must then not violate any other part of the Constitution. What a new Lochner would do would be to establish a new obstacle in the form of a “right to economic freedom” that could not be unreasonably infringed upon.

Here’s how this would work. Currently, if you argue that a given law violates your economic freedom (or economic due process rights or equal protection rights), it is reviewed under a “rational basis” test. That’s legalese for “anything goes.” The big point here is that, since the New Deal, courts have decided that the legislature (and not judges) should have the final say-so on the wisdom of an economic law or regulation. [As if the New Deal supplanted the Constitution.]

A new Lochner (or even a new watered-down version of Lochner) would increase the “scrutiny” applied to economic regulations. [Actually, Lochner is bad law; the same result can and should be achieved through the contracts clause, as I explain here.] More regulations would be struck down on the grounds that they infringe upon people’s economic freedoms. [True.] But the big point, once again, is that such a move would shift power from the legislature to the judiciary. Judges, and not legislatures, would be the final arbiter of what economic laws are acceptable.... [True, and proper, according to the Constitution.]

If this happened, judges would be thwarting the [unconstitutional] will of the democratic majorities in order to enact their own minority political preferences [actually, their preference for constitutional laws].

If this is all too confusing, here’s the big point. Much of the conservative judiciary has adopted a judicial philosophy that is strikingly anti-democratic [read, anti-socialist and pro-constitutional] in the economic sphere. This philosophy – if enacted – would shift the power to judge economic regulations from the legislature to the judiciary....[What a novel concept: The power to judge would reside in the judiciary. And it would be the power to judge the legislation that authorizes regulations, as well as the conformity of regulations to legislation.]

It's clear that publius is antagonistic to the idea of judicial supremacy -- even though, within the confines of the three branches of the federal government -- the judiciary necessarily has the last word in most instances. Moreover, it's clear that publius believes that the power of Congress should not be limited to those powers enumerated in the Constitution -- even though that is plainly what the Framers intended. (See here, here, here, here, and here, for example.)

Given publius's leanings I am especially heartened by his forebodings as to the demise of the national regulatory-welfare state. If a conservative or libertarian were predicting that demise, I would say that he was smoking a controlled substance (though that wouldn't bother me). But publius's prediction fills me with hope because it comes from the keyboard of someone who clearly begrudges it.

The Left's alternative to the national regulatory-welfare state is -- drum roll -- the devolution of power to the States (but not to the people, of course). Here's Jonah Goldberg, writing at NRO in December:

Federalism! It's not just for conservatives anymore! That's right. All of a sudden, liberals have discovered federalism and states' rights. I discovered this while listening to a recent episode of NPR's Talk of the Nation, in which host Neal Conan and various callers discussed the idea as if some lab had just invented it....It's not surprising that liberals would suddenly be interested in federalism, given that a sizable fraction of them think George Bush is an evangelical mullah, determined to convert America to his brand of Christianity. As conservatives have known for decades, federalism is the defense against an offensive federal government....

The problem with the last half-century of public policy is that liberals have abused the moral stature of the civil rights struggle to use the federal government to impose their worldview — not just on racial issues but on any old issue they pleased. But now, all of a sudden, because they can't have their way at the federal level anymore, the incandescently brilliant logic of federalism has become apparent: Liberals in blue states can live like liberals! Wahoo!

The Left's embrace of federalism may be more than a passing fad. Consider, for example, three articles at Slate (a semi-respectable sounding board for Leftists). In " The New Blue Federalists," Richard Thompson Ford, a professor of law at Stanford, notes that "Federalism is not just for conservatives, anymore." Jack Shafer, Slate's editor-at-large, writing about "PBS Unplugged," gives an example of how centralized power now threatens the Left's agenda:

The new CPB chairman, Republican Kenneth Y. Tomlinson, invokes the "objectivity and balance" clause to demand that PBS abandon what he considers to be its liberal line....

Left-wing activists fear that Tomlinson's meddling in CPB affairs will result in a media filibuster by the conservative majority. The activists want "the people" and "the local stations" to decide public broadcasting's future, not top-down partisans....

For the longest time, calling for the defunding of public broadcasting was a Republican pastime. Now that the GOP rules public broadcasters, who will be the first Democrat brave enough to call for the end of PBS and NPR as we know them?

Then there's what Slate's editor, Jacob Weisberg, calls " Interest Group Conservatism":

In this, the third year that Republicans have controlled everything, a variation on the old interest-group liberalism has emerged as the new governing philosophy. One might have expected that once in command, conservative politicians would work to further reduce Washington's power and bury the model of special-interest-driven government expansion for good. But one would have been wrong. Instead, Republicans have gleefully taken possession of the old liberal spoils system and converted it to their own purposes. The result is the curious governing philosophy of interest-group conservatism: the expansion and exploitation of government by people who profess to dislike it....

True, the clients, patrons, and causes are different. Instead of the Children's Defense Fund pushing to fully fund Head Start, we now have church-affiliated social service agencies lobbying to have faith-based drug treatment funded by HHS. Instead of Sen. Ted Kennedy of Massachusetts promoting a hate-crimes bill endorsed by the Leadership Conference on Civil Rights, it's Sen. Wayne Allard of Colorado introducing a constitutional amendment to ban gay marriage on behalf of James Dobson's Focus on the Family. Instead of the Environmental Protection Agency proposing higher air-quality standards, it's the Federal Communications Commission levying fines and threatening broadcast licenses on the basis of profanity and indecency.

The Left simply thought that it would hold the reins of power indefinitely, and so it gave little heed to the possibility that the power it vested in the national government would be used against the Leftist agenda.

The Left's Conception of Federalism

The Left may now wish for federalism, but in a decidedly anti-libertarian form. Consider "Reclaiming Federalism" (Dissent, Spring 2005), by by Prof. David J. Barron of Harvard Law School (emphasis added by me):

What would a progressive federalism look like? It might well be a mirror image of Rehnquist Federalism. It would give states and local governments much greater room to regulate the private market. This would check national and multinational business influence as Louis Brandeis and earlier progressives once imagined. It would also give the national government much more power to regulate nonmarket social relations. This would give Congress the power to protect basic Fourteenth Amendment rights.

To expand the ability of states and local governments to regulate private business, progressive federalism would permit federal statutes to trump state regulations only when they were in clear conflict. In other words, states would get the benefit of the doubt in this area. A progressive federalism would also interpret the Takings Clause to give more deference to local efforts to make developers assume the costs of their development. And rather than characterizing state and local regulations as protectionist or as obstructive of the national market, as the Court often does in its Dormant Commerce Clause decisions, progressive federalism would permit sensible attempts by state and local governments to protect their communities from the harsh and dislocating effects of larger economic forces.

But progressive federalism would do more than free states from the limits imposed by Rehnquist Federalism. It would promote a different view of Congress's enumerated powers. It would reinforce Congress's Fourteenth Amendment power to "enforce" basic constitutional rights and thereby protect the prerogatives of national citizenship from threats posed by local prejudices. Among the highest priorities of progressive federalism would be to reverse the Rehnquist Court's unwarranted curtailing of this vital power....

Progressives for too long have been strikingly unimaginative when it comes to federalism. They speak only in a national key. But it is clear that their faith in unlimited national authority was the contingent product of liberal control of national institutions. Circumstances have changed. We should now look at the Constitution's federalism with fresh eyes. Doing so would cast some much needed doubt on the stereotype that progressives love big government....

So, the next time you read a progressive trashing of the Rehnquist Court, resist the impulse to applaud the national government as our sole hope and savior. Federalism is what we make of it. Rehnquist and his conservative colleagues have been making the most of it for more than a decade. It's time for progressives to do the same.

The stereotype that Barron seeks to disclaim is all too true. The Left does loves big government, that is, all-powerful government. But the Left knows that big government needn't reside in Washington if it can reside in Statehouses and city halls.

Toward Pro-Libertarian Federalism

The Left's vision of federalism is to devolve the central government's acquired anti-libertarian powers to somewhat less remote commissars at the State and local level. The Left simply isn't to be trusted as a partner in the shaping of a new federalism. A pro-libertarian federalism would not only limit the power of the central government but would also limit the power of State and local governments to advance the Left's anti-libertarian agenda.

The only way to advance pro-libertarian federalism is to ensure that the Left neither controls the central government nor has little influence over its policies. This is especially true of the Supreme Court. For the surest way to return to a form of federalism that, in the main, advances liberty and prosperity is through Supreme Court rulings of the kind so feared by publius and his ilk: "the overruling of the post-New Deal regulatory state."

Something resembling pro-libertarian federalism will come about only if a Republican president, aided by a strongly Republican Senate, is able to stock the courts with judges who are committed to the restraint of government power -- at all levels of government. (Janice Rogers Brown is that kind of judge.)

Certainly not all decisions by all Republican appointees to the bench will satisfy all libertarians, many of whom seem to focus on narrowly tailored "rights," such as abortion and gay marriage (both of which are in fact threats to liberty, as I argue here and here). But by siding with the Left on such issues, libertarians effectively abjure more basic rights -- rights that broadly affect the ability of most Americans to pursue happiness -- such as freedom of speech, freedom of association, and freedom of contract.

In the real world there are real choices. The real choice for libertarians is between what seems "best" for a few and what is actually "better" for the many. I choose the latter, without hesitation.

Pro-libertarian federalism is the best practical way to redeem the promise of liberty. The surest route to pro-libertarian federalism, it seems to me, can be found in an alliance with the Republican Party. The GOP may not be reliably anti-statist, but it is less statist than the Left. And it is more likely to defend our basic rights -- in the courts, in the streets, and in foreign fields.