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Conservatives v. Libertarians

The debate over judicial activism divides former allies.

Damon W. Root
June 8, 2010

It’s hard to imagine a greater victory for the conservative legal movement than the Supreme Court’s 2008 decision in District of Columbia v. Heller, which overturned D.C.’s ban on handguns. Not only did the Court definitively settle the long-contested question of whether the Second Amendment secures an individual right to keep and bear arms, but it did so using the language of “originalism”—the school of thought, long championed by conservatives, that says the Constitution should be read according to its original public meaning.

It was therefore surprising when a leading conservative jurist, Judge J. Harvey Wilkinson III of the U.S. Court of Appeals for the 4th Circuit, denounced the ruling as a shameful piece of judicial activism. Heller, Wilkinson wrote in the Virginia Law Review, “encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”

It was a classic conservative complaint, except that Wilkinson’s targets sat on the right side of the bench. And this was no isolated incident. With John Roberts coming into his own as chief justice of a right-leaning Court, conservative anxiety about libertarian-flavored judicial activism has been heating to a boil.

In the 2010 campaign finance reform case Citizens United v. FEC, for example, the high court overturned parts of multiple precedents that had upheld restrictions on political speech. In response, Stuart Taylor Jr., a legal commentator widely respected on the right, said the Court’s conservatives had “forfeited whatever high ground they once held in the judicial activism debate.” By overturning precedents and nullifying portions of federal law, Taylor worried, the Court’s conservative majority had set an example that liberals would be all too happy to follow.

The most visible split yet occurred in the run-up to the March 2010 oral arguments in McDonald v. Chicago, in which the Supreme Court considered the constitutionality of the Windy City’s handgun ban. With the Court preparing to rule for the first time on whether the Second Amendment applies to state and local governments (Heller applied only to the federal government, which oversees Washington, D.C.), conservative and libertarian groups openly battled one another over legal strategy and constitutional interpretation. In the end, the conservative National Rifle Association successfully lobbied the Supreme Court to take 10 minutes of argument time away from the libertarian lead attorney, Alan Gura (who had successfully argued Heller), and hand it over to the NRA’s Paul Clement, who as George W. Bush’s solicitor general had angered gun rights activists (including the NRA) by urging the Court to adopt a relatively deferential approach to gun control. The oral arguments in McDonald, which highlighted differences over how the Second Amendment should be applied to the states, left many libertarians deeply angry at the Roberts Court and wondering if the conservative-libertarian legal alliance was finally coming apart.

“Now that conservatives form a majority on the Supreme Court and the lower federal courts, the fault lines are emerging between religious conservatives and libertarians, moderates and radicals, originalists, proponents of judicial restraint, and result-oriented conservatives,” says Doug Kendall, the president and founder of the Constitutional Accountability Center, a liberal think tank that has worked with—and against—many figures in the conservative legal movement. “The challenge for conservatives, now that they are in charge, is to figure out what they truly believe in, rather than simply what they oppose.”

They won’t be reaching a consensus anytime soon. Although libertarians and conservatives are routinely lumped together, even by seasoned legal journalists, there are profound differences between them over matters of law. With both libertarians and conservatives increasingly turning to the courts to advance their agendas, and with major legal battles brewing over contentious issues like gay marriage, health care, financial reform, and terrorism, these fault lines have the potential to reshape the legal landscape and affect the life, liberty, and property of every American for generations to come.

A Big Tent

The conservative legal movement occupies one of the biggest tents in American politics, with a membership ranging from religious traditionalists to gay-friendly libertarians who shouldn’t really be called conservatives at all. The movement’s origins lie in the political backlash against the Supreme Court’s perceived liberal activism during the 1960s and ’70s, when it issued landmark decisions legalizing abortion, giving defendants procedural safeguards against self-incrimination, endorsing school busing, applying “heightened” judicial scrutiny to alleged sex discrimination by the government, limiting the scope of executive power, and loosening the eligibility requirements for federal welfare programs. In the eyes of many conservatives, the Court wasn’t just fulfilling the liberal wish list; it was inventing new rights previously unrecognized in constitutional law.

As David Kennedy—a co-founder of the Institute for Justice, a libertarian public interest law firm—told Steven Teles, author of the 2008 book The Rise of the Conservative Legal Movement, there “was an enormous sense of political disfranchisement” among the opponents of those decisions. “With the lessons taught by the leftist activists of the sixties and early seventies in their use of the courts to obtain results which they were unable to obtain politically,” Kennedy explained, “there developed a movement to use the same tactics on behalf of more traditional, more conservative, more libertarian causes.”

Several organizations soon formed to carry out that mission, including the Pacific Legal Foundation (founded in 1973), the Landmark Legal Foundation (founded in 1977), and the Washington Legal Foundation (also founded in 1977). They filed amicus briefs, challenged various government regulations, and pursued conservative and/or libertarian policy goals—both in and out of court.

The most significant early development came with the formation of the Federalist Society. Founded in 1982, the Federalist Society functions as both a legal network, with law student and lawyer chapters around the country, and an academic seminar, sponsoring highly respected conferences and debates that draw top-notch speakers and participants from across the political spectrum. Much of the society’s attention is focused on attracting and nurturing conservative legal talent. That focus has paid off with the placement of several former members in high-ranking government positions, most notably Supreme Court Justice Antonin Scalia, a former faculty adviser to the society’s University of Chicago chapter. Since the Federalist Society doesn’t take official positions on public policy questions, its membership is as wide-ranging as the conservative legal movement in general. As a result, even the most conservative member has been exposed to libertarian legal ideas.

Another important milestone came when President Ronald Reagan appointed conservative lawyer Edwin Meese III as attorney general in 1985. An aggressive critic of the liberal legal establishment, Meese made judicial restraint, which had long been a conservative rallying cry, into a central part of Reagan’s domestic agenda. “What, then, should a constitutional jurisprudence actually be?” Meese asked in a 1985 speech to the American Bar Association. “It should be a jurisprudence of Original Intention.” That meant judges should exhibit “a deeply rooted commitment to the idea of democracy” and to the choices made by voters and their representatives. Writing in The New York Law School Law Review a decade later, Meese said this approach was meant to undo “more than a quarter century of judicial activism, in which the text of the Constitution, precedent, and certainty were cast aside in favor of wild flings of judicial fancy.”

The movement’s first great legal victories came next, thanks to the formation of the Center for Individual Rights in 1989 and the Institute for Justice in 1991. In United States v. Morrison (2000), the Center for Individual Rights convinced the Supreme Court that portions of the 1994 Violence Against Women Act exceeded Congress’ constitutional authority to regulate interstate commerce, while in Gratz v. Bollinger (2003), the group persuaded the Court to strike down the University of Michigan’s race-based admissions policy for undergraduates. The Institute for Justice won key victories in Zelman v. Simmons-Harris (2002), where the Supreme Court rejected an Establishment Clause challenge to Ohio’s school voucher plan, and Granholm v. Heald (2005), where the Court nullified Michigan and New York laws prohibiting out-of-state wineries from shipping their products directly to consumers on grounds that the laws were unconstitutional barriers to interstate commerce.

Uniting against a common liberal enemy turned out to be much easier than agreeing on controversial political issues once the movement gained enough clout to start winning cases. In particular, conservatives and libertarians during their decades in the wilderness papered over profound divisions over one of the most fundamental questions in American law: the proper role of the courts. 

Majorities Rule

Article III, Section I of the U.S. Constitution vests “the judicial power” in “one supreme Court, and in such inferior Courts as Congress from time to time may ordain and establish.” Most supporters of ratification understood the judicial power as including the authority to decide whether acts of Congress were consistent with the Constitution. “If a law should be made inconsistent with those powers vested by this instrument in Congress,” constitutional convention delegate James Wilson explained to the Pennsylvania ratification convention in December 1788, “the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void.” This is the power of judicial review.

“Judicial review is doubtless the main issue that separates conservative and libertarian jurisprudes,” says Roger Pilon, an influential legal thinker who serves as director of the Center for Constitutional Studies at the Cato Institute, a libertarian think tank. “But that divide is rooted in turn in more fundamental differences about the American system of government.”

Libertarians typically favor an aggressive judiciary that is willing to overturn mistaken precedents and strike down unconstitutional state and federal statutes. The Georgetown law professor Randy Barnett, for instance, has argued that the courts should adopt a “presumption of liberty,” meaning that the government should be required “to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow ‘fundamental.’ ”

That position is almost the exact opposite of the judicial restraint advocated by Meese and other conservatives. As Ramesh Ponnuru of National Review has put it, judicial restraint “is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.”

Clark Neily, a senior attorney at the Institute for Justice and, in his private capacity, one of the winning attorneys in the Heller gun rights case, describes the source of disagreement this way: “What level of skepticism do you bring to government?”

It’s common to assume that conservatives bring a very high level of skepticism to government. But when it comes to legal theory, that’s not necessarily the case. Consider the Supreme Court’s decision in Lochner v. New York (1905). At issue was a provision of New York’s 1895 Bakeshop Act that banned bakery employees from working more than 10 hours per day or 60 hours per week. Writing for the majority, Justice Rufus Peckham nullified the law for violating the right to liberty of contract protected by the Due Process Clause of the 14th Amendment, which says that no state shall “deprive any person of life, liberty, or property, without due process of law.”

Unsurprisingly, liberals denounced Peckham for striking down this economic regulation and later cheered the Supreme Court when it rejected liberty of contract in the landmark New Deal case West Coast Hotel v. Parrish (1937). Since the Constitution doesn’t mention liberty of contract, the liberal argument went, the Court had no business overriding the wishes of the New York legislature. Ask virtually any liberal law professor about Lochner, and he’ll tell you it’s a blatant example of judicial activism. Cass Sunstein, who teaches law at Harvard and the University of Chicago and currently serves as head of the federal Office of Information and Regulatory Affairs, has even compared Lochner to Plessy v. Ferguson (1896), the notorious case that enshrined the vile doctrine of “separate but equal” into law.

What’s surprising is that many of today’s most prominent legal conservatives share this hostility to Lochner. Foremost among them is Robert Bork, the former federal appeals court judge whose failed 1987 nomination to the Supreme Court galvanized conservatives and set a template for future judicial confirmation battles. A distinguished Yale law professor, bestselling author, and popular speaker, Bork has had an immeasurable impact on the conservative legal movement. Indeed, he is arguably its most influential figure. And in Bork’s opinion, Lochner represents “the symbol, indeed the quintessence, of judicial usurpation of power,” as he put it in his bestselling 1990 book The Tempting of America.

As Bork sees it, the “first principle” of the American system isn’t the protection of individual rights. “In wide areas of life,” he writes in The Tempting of America, “majorities are entitled to rule, if they wish, simply because they are majorities.” That means that in the vast majority of cases, the courts should give lawmakers the benefit of the doubt and presume the constitutionality of the disputed law, including economic regulations. In other words, courts should adopt a pro-government posture of judicial deference.

Chief Justice John Roberts offers an instructive example of the problems this approach can cause. During his 2005 Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and consensus that he extended even to the abortion-legalizing Roe v. Wade (1973), a case Roberts described as “the settled law of the land.”

Yet as Citizens United later demonstrated, Roberts’ judicial modesty has limits. In his concurrence in that case, Roberts argued that the Court was perfectly justified in overturning its decisions “if adherence to a precedent actually impedes the stable and orderly adjudication of future cases”—when, for example, “the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.”

That formulation leaves a lot of wiggle room for a self-described champion of judicial modesty. Many liberals would say Citizens United is hotly contested and therefore deserves to be overruled. Most conservatives would say the same thing about Roe v. Wade. And that’s precisely the point of judicial restraint; it eliminates all that picking and choosing by requiring judges to defer to the will of the majority.

Roberts tried to have it both ways, employing the standard conservative rhetoric of judicial restraint while selectively wielding a more libertarian form of judicial review. That’s what prompted Stuart Taylor to lambast him for forfeiting the high ground. It’s now anybody’s guess whether, in cases where conservatives prefer a particular outcome on policy grounds, the Roberts Court will flex its judicial muscles or defer to precedent and the popular will.

‘A Sea of Individual Rights’

One of the first libertarians to challenge the conservatives’ pro-government stance was the political scientist Stephen Macedo, who wrote a short book for the Cato Institute in 1986 with the provocative title The New Right v. The Constitution. Macedo argued that Bork, Meese, and their allies had turned the American system on its head. As he put it, “When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”

It would be difficult to overstate the role that the Cato Institute has played in critiquing Bork’s majoritarian conservatism and in pushing the conservative legal movement in a more libertarian direction. In addition to publishing Macedo’s book and producing numerous widely read articles and studies, Cato hosted a seminal October 1984 conference devoted to the topic of “Economic Liberties and the Constitution.” Among the participants were the University of Chicago law professor Richard Epstein, who argued that the judiciary should play an active role in defending economic liberty (much as it did in Lochner), and Antonin Scalia, then a federal appeals court judge, who advanced the Borkean view that the courts should defer to the political branches on such matters. “The Supreme Court decisions rejecting substantive due process in the economic field are clear, unequivocal and current,” Scalia declared. He added that “in my view the position the Supreme Court has arrived at is good—or at least that the suggestion that it change its position is even worse.”

In response, Epstein argued that under the Scalia-Bork interpretation, “it is up to Congress and the states to determine the limitations of their own power—which, of course, totally subverts the original constitutional arrangement of limited government.” The Scalia-Bork view, Epstein said, ignores the Constitution’s “many broad and powerful clauses designed to limit the jurisdiction of both federal and state governments,” such as the Commerce Clause, which authorizes Congress to “regulate commerce…among the several states.” He said the Borkeans also ignore clauses “designed to limit what the states and the federal government can do within the scope of their admitted power,” such as the Fifth Amendment’s Takings Clause, which says private property may not be taken for public use without “just compensation,” and the 14th Amendment’s Due Process Clause (on which Lochner relied) and Privileges or Immunities Clause, which says states may not “abridge the privileges or immunities of citizens.” Taking those provisions seriously, Epstein argued, requires “some movement in the direction of judicial activism” on behalf of economic rights.

This debate brought the conservative-libertarian divide into the spotlight. “That’s why the conference was so important as a benchmark,” Roger Pilon says. “For the first time, libertarians threw down the gauntlet.”

‘Even I Have Acquiesced’

Today the broad conservative legal movement draws intellectual inspiration from both sides of the Epstein-Scalia debate. Conservatives were almost universally outraged, for example, when the Supreme Court struck a blow against property rights in the 2005 case Kelo v. City of New London (another lawsuit filed by the Institute for Justice), where it upheld the use of eminent domain to transfer property from one private owner to another for the sake of economic development. Yet as Richard Epstein observed, for the decision to have gone the other way, the Court would have had to “take an activist stance by striking down a comprehensive [development] plan that had survived endless rounds of public hearings.” When it comes to the judicial protection of property rights, conservatives increasingly lean libertarian.

But as Judge Wilkinson’s attack on Heller shows, the appeal of Borkean majoritarianism still runs deep. The similarities between Wilkinson’s 2008 article and Scalia’s 1984 Cato presentation are striking. Both emphasize judicial restraint and deference to the elected branches. At Cato, Scalia explained that judges were in no position to second-guess lawmakers. Wilkinson made the same point, except his target was the Heller opinion written by Scalia. Had Supreme Court Justice Scalia heeded the advice of appellate judge Scalia, Wilkinson pointed out, the Court would have concluded it had no business substituting its wisdom for that of the local officials directly accountable to D.C.’s residents.

Perhaps Scalia has changed his mind. Or perhaps, like Chief Justice Roberts, Scalia only selectively practices the judicial restraint he has long preached. Consider the Supreme Court’s latest gun rights case, McDonald v. Chicago. One day after the Supreme Court ruled in Heller that D.C.’s gun law violated the Second Amendment, lead counsel Alan Gura filed a new lawsuit challenging Chicago’s nearly identical handgun ban. This case requires the Court to decide whether state and local governments are, like the federal domain of Washington, D.C., bound by the Second Amendment.

Over the past century, the Supreme Court has gradually applied most of the protections in the Bill of Rights against the states, ruling that they are “incorporated” by the 14th Amendment’s Due Process Clause, which says states may not “deprive any person of life, liberty, or property, without due process of law.” That’s the provision the Court used to protect liberty of contract in Lochner; it also appeared in Griswold v. Connecticut (1965), where the Court struck down a state law banning the sale of contraceptives to married couples, and in Lawrence v. Texas (2003), where the Court nullified the state’s anti-sodomy law. This approach is also known as “substantive due process,” referring to the idea that the Due Process Clause guarantees more than just procedural rights and in fact secures all substantive or fundamental rights from violation by the states as well. Many conservatives argue that due process, by definition, applies solely to procedural safeguards, and that the courts have no business enforcing any substantive rights via the Due Process Clause.

Since joining the Court in 1986, Scalia has been an outspoken and persistent critic of substantive due process, which he has denounced as an “atrocity” and a “mere springboard for judicial lawmaking.” That stance is consistent with his many odes to judicial restraint and originalism. In McDonald, however, Gura offered Scalia and his colleagues an alternative: incorporation via the 14th Amendment’s Privileges or Immunities Clause, which says “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As Gura argued in the brief he submitted to the Court, the Privileges or Immunities Clause’s text, original meaning, and history, including the stated goals of its framers and ratifiers, show that it was designed to secure individual rights, including the right of armed self-defense, against abusive state and local governments.

The problem is that the Supreme Court rendered the clause a dead letter with its controversial 1873 decision in The Slaughterhouse Cases, which upheld a Louisiana law granting a slaughterhouse monopoly to a private company. Writing for the Court’s 5-to-4 majority, Justice Samuel Miller declared that the Privileges or Immunities Clause protected only a narrow set of national rights (such as the right to access federal waterways), thus leaving the states free to restrict liberty as they saw fit. Gura argues that the text and original meaning of the Constitution requires the Court to strike down Slaughterhouse 137 years later and apply the Second Amendment to Chicago via the Privileges or Immunities Clause, rather than the debased Due Process Clause.

But when the Court finally heard oral arguments in McDonald last March, Scalia responded to Gura with hostility and mockery. “What you argue is the darling of the professoriate, for sure,” Scalia quipped, “but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have—even I have acquiesced in it?”

A Slaughterhouse Divided

When this article went to press, the Supreme Court had not yet handed down its McDonald ruling. Based on the oral arguments, it seems very likely that the Court will vote for due process incorporation of the right to keep and bear arms. While that would be a landmark victory for gun rights, since it would extend the Second Amendment to the states for the first time in American history, it would still be a severe disappointment to most libertarian legal activists.

When I spoke with Heller co-counsel Clark Neily two weeks after the McDonald arguments, the frustration was still evident in his voice. “Continuing to ignore an entire provision of the 14th Amendment because you’re afraid of its implications is not principled jurisprudence,” he said, referring to Scalia. He added that the National Rifle Association “held their nose and jumped in bed with substantive due process. Who would have imagined a leading conservative group doing that?”

Timothy Sandefur, a libertarian who serves as principal attorney at the Pacific Legal Foundation, was even blunter, arguing that Scalia had permanently sullied his reputation during the McDonald arguments. “After this,” Sandefur wrote on the foundation’s blog, “Justice Scalia’s claims of being an originalist can simply not be taken seriously by anyone.” 

George Washington University law professor Orin Kerr, a leading conservative academic and prominent skeptic of Gura’s privileges or immunities strategy, says “a lot of libertarians hoped that McDonald would become the Brown v. Board of libertarian constitutionalism.” And indeed, many libertarians (including me) believe that the original meaning of the Privileges or Immunities Clause covers economic liberty as well as gun rights. This view recognizes the 14th Amendment’s origins in the free labor philosophy of the anti-slavery Republicans who designed it. Those framers weren’t just concerned with securing a right to armed self-defense for the recently freed slaves; they also wanted to protect the freedmen’s right to earn an honest living free from unnecessary government interference. Overturning Slaughterhouse is therefore a crucial step in the libertarian project of restoring the judicial protection for economic liberty that the Supreme Court destroyed during the New Deal.

That is precisely the problem for many conservatives, who remain committed to the majoritarian vision articulated by Robert Bork. “What’s so important about [Slaughterhouse] is that there’s nothing in the Constitution about such an economic right,” declared a December 2009 Washington Times op-ed co-authored by Ken Klukowski, a senior legal analyst at the conservative American Civil Rights Union, and Ken Blackwell, a senior fellow at the conservative Family Research Council. If the Court followed Gura’s advice and struck down Slaughterhouse, Klukowski and Blackwell wrote, “life-appointed federal judges could override the decisions made by elected leaders that we, the voters, choose. The people ultimately making those decisions would no longer answer to us.” It was the Epstein-Scalia debate all over again—only this time, Scalia is a justice on the U.S. Supreme Court, and no one is exactly sure what he thinks anymore.

All Tomorrow’s Legal Parties

Will the infighting over McDonald undo the conservative legal coalition? Federalist Society co-founder and president Eugene Meyer doesn’t think so. As the head of the country’s foremost conservative legal organization, Meyer knows a thing or two about maintaining a big tent.

“You’re always going to have divisions,” Meyer says, “but what I think helps bring us together is that these debates are over what the text of the Constitution actually says.” Maybe “if we cut the government in half,” he says with a laugh, “there might be a lot more fault lines in the conservative legal movement. But as long as the basic battle is over whether the U.S. should be more like Europe, the coalition will hold.”

Sandefur, the libertarian lawyer, isn’t so sure. “I believe that the tactical alliance between libertarians and conservatives will remain pretty strong throughout the Obama presidency, but it will break up,” he says, calling the alliance a “historical accident caused by the Goldwater and Reagan presidential campaigns.”

That scenario may seem unlikely in light of the recent collaboration between libertarians and conservatives in crafting a constitutional challenge to President Barack Obama’s health care plan. But one thing is certain: With an array of hot-button legal battles in the works, the courts will remain a central battlefield, and the conservative legal movement will continue to take fire from all sides. As for the continuing influence of libertarian legal ideas, Heller co-counsel Clark Neily is cautiously optimistic. “My hope is that McDonald gets conservatives to take another look at their jurisprudence,” he says. “Maybe it will bring us closer together.”

Damon W. Root (droot@reason.com) is an associate editor of reason. This column first appeared at Reason.com.


Damon W. Root is Senior Editor


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