Comments on: Book review: Gun case’s broader context

By: Kent Scheidegger

Kent Scheidegger — Tue, 29 Jan 2008 17:14:02 +0000

“A voter who favors Cato-style libertarian activism would probably best be served by a vote for Ron Paul, whether he wins the Republican primary (admittedly a long shot) or runs as an independent.”

Yes, I suppose, if the hypothetical voter is merely interesting in making a statement. I was thinking along the lines of voting for someone with a realistic chance of actually becoming the president and making appointments.

By: James N. Markels

James N. Markels — Tue, 29 Jan 2008 14:02:46 +0000

I think Levy and Mellor are actually seeking more Justices like Clarence Thomas, not Scalia, although Justice Thomas’ affinity for broad executive powers would still not make him the perfect choice for the authors.

By: James Ralston

James Ralston — Mon, 28 Jan 2008 23:53:21 +0000

A voter who favors Cato-style libertarian activism would probably best be served by a vote for Ron Paul, whether he wins the Republican primary (admittedly a long shot) or runs as an independent.

I have not read the book (yet), but I cannot help but wonder if what Levy and Mellor are really advocating is a [re]turn to a textualist interpretation of the Constitution—the approach championed by Scalia.

As much as I wince when the textualist axe swings at something I personally favor, I think we could do far worse than placing a few more Scalias on the bench…

By: Kent Scheidegger

Kent Scheidegger — Mon, 28 Jan 2008 17:06:58 +0000

The book could well become a document of some import during this year’s presidential election campaign, if it should turn out that the voting public (and the candidates) take any interest in the kind of judicial philosophy that they want to see pursued in future appointments to the Supreme Court.

And who exactly would a voter who favors Cato-style libertarian activism vote for? A vote for the Democratic nominee is a vote for Brennan-style liberal activism. A vote for the Republican nominee will likely be a vote for Rehnquist-style judicial restraint.

Folks on the left who are worried that gains they may make through the democratic process may be lost through judicial activism can relax. A few outliers such as the D.C. gun law may fall, but the bulk of the agenda, if enacted in statute, will stand.

By: Dan Passaro

Dan Passaro — Mon, 28 Jan 2008 14:45:39 +0000

[quote]It is a far more ambitious project than may be widely recognized. If it ultimately were to succeed, Congress’ power to spend under the General Welfare Clause would be severely curtailed, economic populism — freedom, especially, for small merchants from pesky government rules — would have a new birth, the bundle of ownership rights in property would expand markedly, the power at all levels of government to intervene to advance progressive social causes would be shrunken considerably — just as a few examples.[/quote]

This would be awesome.

By: Dennis Bedard

Dennis Bedard — Sun, 27 Jan 2008 12:19:41 +0000

A libertarian interpretation of the constitution is a needed retort to the conventional view taught in law schools. But the book, and what it portends politically, needs to be looked at in historical perspective. There is a hope among conservatives and fear among liberals that the court is headed in an increasingly conservative direction. This may be true but the direction of the court will most likely be at odds with the prevailing political winds. Philosophical shifts in legal jurisprudence have always come at the tail end of the electoral shift that produced the justices who formulated the doctrinal change. There is a political realignment in America every forty years or so. Thus, the elections of 1828, 1860, 1896, 1932, and 1980, all produced a fundamental change in our political landscape. These “revolutions” if you will also produced there own legal scholarship which reached its fullest influence after their political effectiveness had reached its apogee. For example, Dred Scott may have been a victory for slaveholding states but occurred 8 years before the South’s defeat. The decisions about economic regulation in the early FDR years may have been an annoyance to liberals but they really represented a “last gasp” of the free market interpretation that reflected the politics of the late 19th century. Ditto the Warren Court. It heralded a legal revolution but at a point in history when the old FDR coalition was breaking apart with a vengeance. Does anyone doubt that one of the principal reasons Ronald Reagan was elected was that a good part of the country was fed up with so called “activist judges.” The judges who produce these changes in legal theory cut their political teeth 20 to 30 years before they are appointed at the birth of an new political movement. But now it is 2008. The Reagan Revolution is almost 30 years old. The views of Roberts, Alito, and Scalia, are representative of their political icon: Reagan and to a lesser degree Bush. But the Reagan era is over or soon will be. Whether that is good or bad is irrelevant. The laws of political cycles are immutable. There is nothing that anyone can do about it. Five years from now, the Roberts court will most likely produce conservative opinions that a loose majority believes conflicts with their values and does not reflect the way America should be governed. In a way, this attitude is no different from FDR’s whining about the Supreme Court and trying to pack it or George Wallace claiming that he would give Judge Johnson a “barbed wire enema.” Every change in the Supreme Court’s philosophical direction was greeted with a grass roots or populist resistance to its mandates that eventually produced an electoral tidal wave. So if history is any guide look for a major schism in the next ten to fifteen years between the court and public sentiment.