At Liberty Law Blog, Kurt Lash has two long posts (here and here) reviewing (critically) Damon Root's Overruled: The Long War for Control of the Supreme Court
Heroic stories need a bad guy for the hero to struggle against and overcome. Root supplies two. The first is the New Deal Supreme Court and its creation of the doctrine of “judicial deference” in matters involving commercial and economic regulation. The central goal of the libertarian fight for “control” of the Supreme Court is judicial protection of what libertarians believe is the fundamental right to economic freedom. Accomplishing this requires overruling the Supreme Court’s 19th century decision in The Slaughterhouse Cases (1873) and ratcheting up the modern Court’s application of deferential “rational basis review” in cases involving the right to pursue a trade. Much of Root’s book involves describing the libertarian long game in trying to achieve these results.
The second and somewhat surprising bad guy in Root’s book is constitutional federalism. This traditional theory of divided government power has long thwarted libertarian efforts to expand the protections of the Fourteenth Amendment and force states to recognize a fundamental right to economic freedom. Throughout the book, Root characterizes federalist resistance to the libertarian agenda as driven by misguided conservative theories of judicial deference or a “Bible-thumping” fear of freedom.
Thus,
Overruled is devoted to challenging not only the expansion of federal power by judicial Progressives, but also to challenging the theory of state autonomy and the rights of local self-government. Federalism stands in the way of the libertarian ideal of national economic freedom by insisting that local economic policies be reserved to the people in the several states. Accordingly, despite their making common cause against unduly expansive theories of national power, libertarianism and federalism seem doomed to a death struggle. As J.K. Rowling might write, either must die at the hand of the other for neither can live while the other survives.
In Part 2, Professor Lash turns specifically to the Fourteenth Amendment's privileges or immunities clause:
Like most libertarian constitutionalists, Root believes that the Fourteenth Amendment’s Privileges or Immunities Clause, properly read, justifies judicial enforcement of unenumerated rights, including unenumerated economic rights. The Supreme Court has repeatedly rejected such a reading, initially in The Slaughterhouse Cases (1873) and again in New Deal-era decisions like United States v. Carolene Products (1938). Root insists that such cases be overruled, and that advocates of federalism give up their wrongheaded efforts to limit judicial interference with the rights of local self-government.
….
I now want to focus on constitutional text, in particular on the Fourteenth Amendment’s Privileges or Immunities Clause. This single clause supports the entire theory of contemporary libertarian constitutionalism. If Root is wrong here, he is wrong everywhere else…
Lash (author of an important book on the clause) then argues at some length that Root is in fact wrong about the original meaning of the clause.
And in conclusion:
It is possible that Obergefell is but the first step in the direction of libertarian constitutionalism. Perhaps the next shoe to drop will be Justices Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor embracing and enforcing economic freedoms against overbearing commercial regulation.
Or not. That’s the problem. When there are no textual or historical constraints on judicial decision-making, it is difficult to say which social concerns will be constitutionalized and which will remain subject to democratic decision-making. We become subjects waiting for the Supreme Court to tell us what we may or may not do, what we may or may not discuss and decide.
Thus the irony of contemporary libertarian constitutional theory: What begins as a theory of limited government power and maximum individual autonomy ends as a theory of maximum federal power and minimum individual influence.
Federalists know this. They struggle against the lawless interpretive methodology that grounds so much of contemporary constitutional jurisprudence as much as they struggle against modern federal regulatory power, and for the same reason. The only just power of any government, or any branch of government, comes from the consent of the governed. In the United States, that consent is found in a written Constitution ratified by the People themselves, one establishing a dual federalist system of government.
There is good reason to think that, at least at the present moment, libertarians will get closer to their goal of individual freedom by joining, not fighting, the federalist cause.
Posted at 4:35 PM