“Crony capitalism” is the idea that politically well-connected owners of productive factors – land, labor, capital, entrepreneurial skill – can use the government’s coercive power to limit competition and increase their return on those factors. More generally, it’s the use of the coercive powers of the state to redistribute resources to specific groups and their associates.
As Gordon Tullock was fond of pointing out, while government protection is not a factor of production, it can be a factor of profit.
The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.
Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution. Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage. More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.
Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the right to assisted suicide could be found in the Constitution. The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter, because laws against the practice had long existed.
But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either. In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had itself not met the Glucksberg test. But the right of abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.
The Texas Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing and Regulation (link no longer available), striking down a state law requiring at least 750 hours of training in order to perform commercial “eyebrow threading”—a form of hair removal mainly performed in South Asian and Middle Eastern communities—has generated substantial notoriety for the court and for the Institute for Justice, which brought the lawsuit challenging the law.
My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”—must surely stand as one of the most searching and thoughtful in recent memory.
The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.
But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.
This next edition of Liberty Law Talk is a discussion with Michael S. Paulsen, co-author with his son, Luke Paulsen, of their new book entitled The Constitution: An Introduction. The Paulsens’ book is a thoughtful and probing overview of the foundations and evolution of American constitutionalism. Our discussion focuses on key ideas in the book: What does it mean to be a country that is defined by a written constitution? Is the Founders’s Constitution a pro-slavery document? Has the use of substantive due process in Lochner, Griswold, and Roe corrupted our understanding of the Fourteenth Amendment? Of what worth is the Youngstown decision that…
Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.
The story of this term has been a united block of the left on the Court, where Justices on the right were fractured. I have suggested that one important reason is that justices on the right take jurisprudence seriously, whereas the left are ideologically motivated. More evidence for this proposition comes from the observation that even when the right won, their justices often wrote separately. It is reason not result that counts for them. And this is as it should be: insistence on right reason affirms the rule of law. A focus on results is just about political power.
In contrast, when the left was in the majority, they tended to join opinions as one, even when they were as doctrinally unpersuasive as Justice Anthony Kennedy’s in the same-sex marriage case. The senior justice on the left boasted she kept her voters in line. Indeed the real division on the Court is between legalists of various kinds and ideologues of one kind.
What is to be done? Above, all win a Presidential election. Ultimately if we are to preserve the Constitution as a rule of law, we must elect someone committed to justices who will interpret it as other law, not a vessel for advancing the left’s ideology. Yet the leading candidate of one of our parties has already said that what matters to her is not jurisprudence but a result—the overruling of Citizens United, a case that perhaps not coincidentally permitted citizens to use a corporate form to distribute a film that criticized this candidate herself.
But what can be done in the interim by the justices themselves?
What approach to constitutional interpretation best protects liberty? My task in this essay is to answer that modest question. Ultimately, there is no definitive answer that applies to all times and all places. But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet. Both the structural and individual rights provisions of the Constitution generally protect liberty more when interpreted from an originalist standpoint than by applying any of originalism’s plausible competitors. Before even beginning to defend that position, we must first consider what is meant by “liberty.” Adherents of different ideologies…
In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not…
Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of “ ‘negative’ liberty defended by most…
The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…
I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…