6 thoughts on “Reconsidering “Judicial Engagement””

  1. Nice post. I agree with you. I would add, however, that just because judicial engagement is not unlibertarian, and is one of many possible ways of responding to statism and injustice, does not mean that every legal decision that results in a pro-liberty result, is actually correctly reasoned or compatible with the Constitution, nor that libertarians have any obligation not to point this out. Of course, it might be prudent to not raise a big ruckus in such case, but that’s more of a prudential or case by case matter.

    BTW, in their reply to you they write: “Since 1789, the Supreme Court has overturned 150 acts of Congress and roughly 1,200 state and municipal laws.” I thought I had read that the Supremes hadn’t overturned any federal law for like a century or something until fairly recently (I forget which case), so the 150 number seems high. Hmm.

    1. The Supreme Court didn’t strike down a single federal law as exceeding Congress’s powers under the Commerce Clause from 1937 to 1995, when United States v. Lopez finally ended the streak.

      It’s interesting that the federal courts have been so much more ready to strike down unconstitutional state and local laws. And why wouldn’t they, since it’s no loss to them if state governments aren’t able to oppress people? They don’t have the bad incentive in this area that they do when considering the constitutionality of federal laws. This suggests that giving federal courts the power to strike down state laws is a good thing — but should be balanced by state power to nullify unconstitutional federal laws. The criminal gangs’ guns should be turned on each other, rather than on us, as much as possible.

      Regarding whether libertarians should argue in favor of anti-libertarian constitutional interpretations: It’s so hard to say with certainty what is and isn’t “constitutional” because different people involved in creating and ratifying constitutional provisions may have had different things in mind, and different people living at the time may have had different understandings of what provisions meant — especially vague terms like “privileges or immunities.” I don’t think libertarians should shy away from pointing out the bad motives of some of the Founders (e.g. Hamilton) or unduly revere the Constitution, but I do think that among competing plausible interpretations, libertarians ought to endorse the one that is more favorable for liberty. I don’t think this “bias” is unreasonable or requires intellectual dishonesty, given the background “presumption of liberty” in place at the time of the founding, as Randy Barnett discusses in Restoring the Lost Constitution.

      (I think this view that I’m expressing now conflicts somewhat with the view I expressed in a 2010 ASC panel presentation, in which I said that libertarians shouldn’t hesitate to argue that constitutional provisions don’t protect liberty in order to better expose the state’s evil and destroy the myth of a libertarian constitution. As a prudential matter, I’m not sure anymore that this is a good idea; it seems too close to the “worse is better” view of people who want the state to become more oppressive so, they think, the day of libertarian revolution will come sooner. I think you can argue for libertarian interpretations of constitutional provisions and for the illegitimacy of the state at the same time.)

      1. The Supreme Court didn’t strike down a single federal law as exceeding Congress’s powers under the Commerce Clause from 1937 to 1995, when United States v. Lopez finally ended the streak.

        Ah, right. I wonder how many of those 150 federal statutes were overturned before, and after, this period. It is sad that more federal laws have not been overturned–by the Supreme Court. And I agree, states ought to also be able to nullify federal laws. I suspect the libertarian “centralists” would not agree with this, but am not sure. What do you think?

        Regarding whether libertarians should argue in favor of anti-libertarian constitutional interpretations: It’s so hard to say with certainty what is and isn’t “constitutional” because different people involved in creating and ratifying constitutional provisions may have had different things in mind, and different people living at the time may have had different understandings of what provisions meant — especially vague terms like “privileges or immunities.” I don’t think libertarians should shy away from pointing out the bad motives of some of the Founders (e.g. Hamilton) or unduly revere the Constitution, but I do think that among competing interpretations, libertarians ought to endorse the one that is more favorable for liberty.

        Agreed.

        I don’t think this “bias” is unreasonable or requires intellectual dishonesty, given the background “presumption of liberty” in place at the time of the founding, as Randy Barnett discusses in Restoring the Lost Constitution.

        Right. I just fear this is wishful thinking. The way we interpret such a presumption, it implies that sodomy and whatnot could never be criminalized, and that slavery and (say) voter discrimination by sex or race could not be permitted; it just seems hard to believe that a really libertarian presumption of liberty was understood at the time or can reasonably be read into the original understanding of the Constitution. But, if we can stretch to make that argument, why not?

        (I think this view that I’m expressing now conflicts somewhat with the view I expressed in a 2010 ASC panel presentation, in which I said that libertarians shouldn’t hesitate to argue that constitutional provisions don’t protect liberty in order to better expose the state’s evil and destroy the myth of a libertarian constitution. As a prudential matter, I’m not sure anymore that this is a good idea; it seems too close to the “worse is better” view of people who want the state to become more oppressive so, they think, the day of libertarian revolution will come sooner.

        Agreed.

        I think you can argue for libertarian interpretations of constitutional provisions and for the illegitimacy of the state at the same time.)

        Right. There are dangers to doing this, to judicial engagement: waters down radicalism, tends to make you and/or others think the state and the political process “works” or is legitimate, chills speech and makes you hold your tongue in some settings, etc. But it’s just a danger; it’s a trade-off. That’s life.

        1. There are some “libertarian centralists” who favor nullification. Randy Barnett doesn’t think that nullification is constitutional now but has his “federalism amendment,” which you’ve written about, which would provide for something like nullification. David Mayer does think that nullification is constitutional and appropriate now even though he doesn’t agree with the “compact” theory of the Union that Tom Woods relies on in arguing for nullification. Can’t think of anyone else offhand.

          I agree that arguing that the Constitution supports liberty could lead to bad “habits of mind,” as Lew Rockwell has put it, and water down some people’s radicalism. But I don’t think it has to. After all, Ron Paul does this, but he’s still a gateway to radical libertarianism. I think we should trust people to be sophisticated enough thinkers to sort this out.

          1. I agree, it doesn’t have to, but not so sure Paul is a good example–with his support for the war in Afghanistan, immigration controls, etc.

            It seems to me that so long as you think the feds have no right to use war to stop secession and/or that a secession is a right, then nullification follows–if state A nullifies a federal law then I guess the union can expel it but what else could they do? So does Barnett think there is no right to secede? THAt the feds are constitutionally justified in going to war to stop a state from leaving? If not, then it seems nullification is a consequence as a practical matter or implication.

  2. giving federal courts the power to strike down state laws is a good thing — but should be balanced by state power to nullify unconstitutional federal laws. The criminal gangs’ guns should be turned on each other, rather than on us, as much as possible.

    This is an interesting point. I would like to see more on this. When a tension exists between liberty and federalism (or call it what you want: decentralism, states rights, subsidiarity, etc.), it does seem odd that a libertarian should always, in every conceivable case, weigh in on behalf of the oppressions of the lower level of government.

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