Thursday, February 2, 2017

A Libertarian Take on Donald Trump's Supreme Court Pick

President Donald Trump has nominated Neil Gorsuch for the empty seat on the Supreme Court.

Many conservative commenters have hailed the choice as have some libertarian-leaning court observers such as Judge Napolitano, but how should a PL think about the choice?

Libertarians should understand that the essence of the job of a Supreme Court justice is to rule on law as written in the Constitution. That is, the fundamental role of a justice is not to advance liberty but to interpret the Constitution as it applies to specific judicial cases.

This is in direct conflict with libertarianism. Murray Rothbard wrote in 1961:
[T]here can be no really firmly grounded and consistent defense of freedom unless that defense is rooted in moral principle....

I regard Madison as a weak trimmer and fuzzy compromiser, rather than a sagacious combiner. Without the unnecessary Madisonian concessions to the profoundly statist programs and conceptions of Hamilton, the Constitution would have been a far more libertarian and a far more lasting instrument than it has proved to be. But there is more involved here...From any libertarian, or even conservative, point of view, [the Constitution] has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing. The Constitution has been stretched a very long way.

...the instruments set up by the Constitution – in particular, the erection of a monopoly Supreme Court with the final power to decide what is Constitutional – embody a fatal flaw in any constitutional attempt to limit the State. In short, when you give the State itself the final power to interpret the very instrument that is supposed to limit the State, you will inevitably find the Constitution being stretched and distorted, until it becomes merely a means of lending an unjustified aura of prestige to the State’s despotic actions.
To be sure, some justices can be worse than others, Activist justices can contort and twist the Constitution in all types manner for particularly totalitarian outcomes and it is indeed better that a justice be on the bench that is not such a twister.

However, because a justice is not an activist, it does not mean he is, as Rothbard would have it, a firmly grounded defender of freedom. He is a defender of the Constitution as he sees it and that is the problem.

It is noteworthy that Rothbard singled out the period of FDR's New deal with its draconian rules against freedom as an example of how the Supreme Court can put "the official stamp of Constitutional blessing" on such anti-liberty measures.

Gorsuch is weak on this very issue.

Law professor Ilya Somin writes:
In a 2005 article, [Gorsuch ]suggested that judges should only strike down laws in “extraordinary” circumstances...Gorsuch praised New Deal-era liberals’ “judicial restraint and deference to the right of Congress to experiment with economic and social policy.” He urged modern liberals to “return to their New Deal roots,” as exemplified by “their own judges of the New Deal era.” Liberal jurists of that period advocated near-total abdication of judicial enforcement of limits on federal power. Their position was badly misguided, and utterly at odds with the originalist approach to constitutional interpretation that Gorsuch himself has advocated elsewhere.
Bottom line, the Constitution was not written in a manner to put full strength behind the non-aggression principle and only the non-aggression principle. It provides for Supreme Court justices to move in directions that are opposite of NAP. Sometimes terribly opposite the NAP as is apparently the case with  Gorsuch when it comes to New Deal-type "experiment[s] with economic and social policy."

The only solution to this monopolistic Supreme Court final power is a society that respects the NAP and private property, in short, a Private Property Society.



  1. The effect of SCOTUS was foreseen by the antifederalists:

    “[Blackstone] observes, "That equity, thus depending essentially upon each individual case, THERE CAN BE NO ESTABLISHED RULES AND FIXED PRINCIPLES OF EQUITY LAID DOWN, WITHOUT DESTROYING ITS VERY ESSENCE, AND REDUCING IT TO A POSITIVE LAW." From these remarks, the authority and business of the courts of law, under this clause, may be understood. They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.

    […] The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: -- I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.” ~ Brutus; the Antifederalist Papers (#11)

  2. When you go to law school, they spend about 3 minutes explaining that it was necessary for the Supreme Court to grant Congress plenary economic power because, thanks to the Great Depression (and the Robber Barons), we all now know that laissez faire failed and the economy requires government regulation and assistance. Also, never argue the opposing position in class or in court. In fact, never give the impression that there is an opposing position. End of Discussion.

    1. Wow. If that is not an indication of complete socialist victory in this country then I don't know what is.