Several years ago, I wrote a review of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Cato Institute chairman Robert A. Levy and Institute for Justice co-founder William Mellor. As its subtitle suggests, the book criticizes twelve U.S. Supreme Court decisions that are especially offensive from a libertarian perspective, such as Wickard v. Filburn, Korematsu v. U.S., and Kelo v. City of New London.
Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.
I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.
In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.
Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.
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