Overruling Government Overreach: Damon Root on the Libertarian Legal Movement
2014-11-27 · Guest: Damon Root (Senior Editor of Reason Magazine) · 52:38
Judicial Restraint and the War for the Supreme Court
Bob Zadek interviews Damon Root, Senior Editor of Reason Magazine, about his book Overruled: The Long War for Control of the U.S. Supreme Court. They discuss the historical and ongoing conflict between judicial restraint and the protection of individual and economic rights, focusing on landmark cases like Heller v. D.C. and Lochner v. New York.
Topics: Supreme Court, Judicial Restraint, Judicial Activism, Economic Liberty, Gun Control, Heller v. D.C., Lochner v. New York, Occupational Licensing, Libertarian Legal Movement, New Deal, Commerce Clause
Speakers:
- Bob Zadek: Host
- Damon Root: Senior Editor of Reason Magazine and author of Overruled
Introduction to the War for the Court [00:10]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show every Sunday at 9:00 AM. I’m your host, Bob Zadek. Thanks so much for listening. I sure appreciate your letting me spend an hour with you on this Sunday morning. We are the only live libertarian talk radio show on the air all weekend. Most importantly, the show of ideas, not attitude.
We are in the midst of—our country right now is facing lots of major, major decisions. Obamacare, gun control, the role of unions—issues that one would have thought would have long since been decided in the 225-plus year history of our country. Core issues that affect American life. But they are not decided, and perhaps will never be ultimately decided. And the interesting part of these very important debates about how much liberty we are to have as individuals, how much freedom—the important point is that conventional wisdom is, well, our country and life in America is a function of democracy, is a function of our elected representatives, and we have ultimate control over that through the ballot box. Or do we?
What is the role of the unelected nine members of the United States Supreme Court in affecting everyday life in America and the degree of liberty that we will enjoy? What has been the role of the Supreme Court? What is the role? And most importantly, most importantly, what should be the role of the Supreme Court? After all, they are not elected. How much control over our lives should the Supreme Court have? And most importantly, what are the rules by which the Supreme Court ought to reach these decisions?
Big topic this morning. To help us sort all of this out, I’m delighted and grateful to welcome Damon Root to my show. Damon is a senior editor of Reason Magazine and has just written Overruled: The Long War for Control of the U.S. Supreme Court. Overruled, control of the Supreme Court, war—big topics in the title. Damon, good morning and welcome to the show.
Damon Root: Good morning. Thank you for having me on.
Bob Zadek: Damon, I wasn’t aware there was a war going on for control. Who are the combatants in this war, and what are they fighting for?
Damon Root: The combatants are both liberals and progressives on one side, conservatives and libertarians on the other, but then also conservatives against libertarians even within the ranks of the right. And they’re fighting for a vision of the Supreme Court and the role that it should play in our society. So on the one side, you’ve got advocates of the philosophy of judicial deference or judicial restraint, which says that the courts, as you mentioned in your introduction, are an unelected branch of government—they’re the least democratic branch—so therefore they should defer to the elected branches, defer to the will of the people as expressed through the lawmakers.
And then on the other side, you’ve got this vision that says no, the courts should be active and aggressive in policing the other branches of government, are a check on the other branches, are undemocratic by design and should be stopping the will of the people sometimes when the Constitution requires it. And there’s this vision of the Constitution as a document that protects individual rights and restricts government power. And certainly, the libertarians today very much want the courts to interpret the Constitution that way and to act as that sort of check on the other branches.
Judicial Restraint vs. Individual Rights [04:40]
Bob Zadek: Now, when you say the Supreme Court is the least democratic, one might—they would be mistaken—but one might interpret that to be a criticism, since we consider democracy to be a good thing. When I say “we,” I don’t include myself, but we as a country as part of our collective ethos consider democracy to be a good thing. Therefore, an institution which is the least democratic or not democratic, it sounds like we are being critical. But of course, we are not. By “least democratic,” you mean that the people have the most remote control over the Supreme Court. And remote control means the people elect the president and the people elect the legislature, and the president nominates members of the Supreme Court and the legislature confirms the nomination. So we have, in the most remote sense, indirect control, but certainly no direct control. And that’s what you mean by the least democratic.
And the question therefore is, among other things, to what degree should the Supreme Court be responsive to what is, quote, “good for America”? Often the Supreme Court in its decisions seems to be speaking about, almost as a super-legislature, what is good for America. And that always struck me as being the wrong approach. They are not there to decide what’s good and bad for America, but rather their traditional role is far more restricted.
Damon Root: That gets right to the heart of this debate. So the advocates of what you might call a “living Constitution,” they would say that the courts, policymakers, everyone needs to respond to the changing needs of the times and recognize essentially what’s good for the country. And if the language of the Constitution doesn’t seem to support that, well, the language actually should be viewed as very flexible and to allow a response to what’s good for society and the changing needs of the times.
And then this other view of the court would say that the Constitution is a written document. It should not be seen as too flexible. It imposes these restrictions, and it’s the job of the courts to enforce it, even when that means going against what lots of people might want the courts to do, might want the law to be seen to be able to do.
Bob Zadek: So those people, such as myself and I dare say such as you, do not see the role of the Supreme Court of doing what’s good for the country, but rather seeing to it that the other branches of government adhere to the restraints imposed on those other branches by the Constitution. And it is not their job to make decisions based upon what is good or bad, but rather the adherence to what some people call first principles of our Constitution and our civic life.
Damon Root: Yeah, no, I think that’s exactly right. What the court’s first job is is to start with the text and the history of the Constitution, of the legal powers at issue in the case, and you begin there. A good judge will sometimes come to a conclusion that he or she does not like, but that’s what the law demands that they do in that instance, rather than saying, “Well, maybe the law seems to cut the other way, but this is for some sort of greater good.” That’s the argument—that that’s what lawmakers are there for, and the president has certain executive powers that they can wield, and they are elected and they can be accountable to voters and to bring those sort of wishes of the people into fruition. And the courts are there to act as an occasional brake on that, because sometimes what people want or what lawmakers want to do exceeds the powers that the Constitution grants or it violates individual rights. One of the problems with democracy is that if you have 60% of the people want to impose some sort of unjust law on the other 40%, in a pure democracy that would be allowed. And our system’s not a pure democracy, and the Supreme Court, which is less democratic, is one of the brakes that’s built into the system to check that sort of majoritarian impulse.
Gun Control and Heller v. D.C. [09:40]
Bob Zadek: This is Bob Zadek. I’m talking with Damon Root. Damon is senior editor of Reason Magazine and has written Overruled: The Long War for Control of the U.S. Supreme Court. Damon, I think we’re going to talk about some very important issues this morning, but I think a good issue that really, in my judgment, frames this debate between what’s good for the country or an activist judiciary, deference to the legislature versus the rights of the people—a wonderful issue only because everybody has an opinion on it—is gun control.
Now, when the Supreme Court handed down the Heller decision in D.C., which basically—I’m going to be simplistic—invalidated the Washington D.C. very restrictive gun control laws, that caused quite a furor. And there were lots of—the media was out there with microphones in hand interviewing people on the typical “man in the street.” And they were voicing an opinion: “I don’t agree with the Supreme Court in the Heller decision. I don’t agree with the Supreme Court.” That always struck me as being so unusual, because you can’t agree or disagree with the Supreme Court except by applying constitutional principles. And what these citizens were doing is they were saying, “I don’t approve of the policy.” The Supreme Court does not set policy, and gun control is a wonderful example of that clash between setting policy, which the Supreme Court doesn’t do, and doing its best to interpret the very few words in the Second Amendment.
Damon Root: Yeah, you know, that case presented a very clear, as you say, a very clear example of the debate. On the one hand, you’ve got local gun control laws that are enacted by lawmakers and city officials who are accountable to the local residents. And so the argument would be, if you don’t like the gun control law, you vote those people out of office, you vote new people in, and they would pass and enact gun regulations or eliminate gun regulations to your liking. And that would be the way the majority would have its say.
And then on the other side, well, the Second Amendment is this text in the Constitution. You have to take it seriously. And what does it mean? And a majority of the court found that it protected an individual right—so that’s the first holding of the case—and then the second holding is that D.C.’s basically total ban on handguns within the home for self-defense purposes, that violated the historical meaning of the individual right that the Second Amendment protected. And so whether or not that ran roughshod over what the local officials had done was not the most important value at stake. The most important value at stake was the constitutional text. And so you had a very clear division between those two views. And in that case, it was 5 to 4, so it was very close. The side that said we’re going to put the text of the Constitution ahead of what the local officials want to do, that triumphed.
Bob Zadek: And when you’re asking, when the media is asking, when the pollsters ask the public, the lay public, “Do you agree with the decision?” it’s an absurd question because it’s not a question about whether the decision is supportable under constitutional law, but rather people are voicing an opinion on the policy. It is so silly and misleading for reporters and for the media, every time the Supreme Court hands down an important case, to ask the public if they agree with the decision. You only can ask constitutional scholars if you agree with the decision on the merits. You only can ask the public about the policy underlying it, and the Supreme Court does not make policy; they presumably, if they do it right, interpret the law or the Constitution.
Defining Judicial Activism and Restraint [13:30]
Bob Zadek: Now, there is a phrase or a dichotomy in public discourse all the time, and especially comes up, of course, during nominations for Supreme Court justices. And there’s a lot of confusion out there, Damon. You spent a lot of time in your book discussing it: judicial activism versus judicial restraint. This, of course, was a big deal in the Bork decision. It was a somewhat of a big deal in the Roberts decision, but Roberts handled it very smoothly politically. But help us understand what these very important phrases mean so our listeners out there can at least follow the action as these debates take place in the public sphere.
Damon Root: Well, judicial activism is a phrase that’s typically just used as an insult. It’s to sort of describing decisions I don’t like or the other side, and that’s often how you see it wielded. And conservatives for the last 30 years have complained that liberals are the activists because they’ve invented a right to privacy and rights to abortion and things like that, and that that’s not grounded in the Constitution. But you also have liberals who accuse conservatives of the same crime. They say, “Well, you know, conservatives have read the Second Amendment too broadly. The Second Amendment doesn’t protect an individual right, it protects a collective one.” And so they think Heller, the case we were just talking about, was an example of conservative judicial activism. So it’s often really just used—it’s used very loosely and not specific.
Now, in the book, what I tried to show is that there has been this very long debate, a century and a half, over the use of that term, but more importantly over the question of what’s the role of the courts. And so that’s where the idea of judicial deference and restraint comes in. Because you do have some very consistent points of view where people say that the courts really should be budding out and hands-off of these democratically enacted laws and should not be interfering with the elected branches of government. Both Robert Bork and John Roberts are pretty good examples of that.
And Roberts, if you recall, as your listeners of course will as well, that in 2012 he cast the deciding vote to uphold the healthcare law, the Obamacare law. And in his decision doing that, Roberts said it was an act of judicial restraint. He said, “It’s not our job to protect the people from the consequences of their political choices.” So I think it was clear that Roberts didn’t necessarily like the healthcare law, but he felt that his role as a judge was to defer to Congress and defer to the president in that instance. And so this was surprising to many people because here you have this conservative Chief Justice—he’s appointed by George W. Bush, he’s Republican, he has Republican Party associations—yet he saves President Obama’s key law. And the reason he did it, as I argue in the book, is because he takes this idea of judicial deference very seriously and is willing to apply it even in instances where he may not like the outcome of the case. But he says, “It’s not our job to see the law differently.” Now, of course, most conservatives and libertarians disagree with him and think that he got that wrong, that the Constitution actually told him it was his job to strike down the law. So you can see how this debate kind of cuts across normal political lines. It doesn’t always track just with one party or one side or the other. But so when people are talking about those ideas, that’s the kind of thing that they’re referencing.
The Progressive Roots of Judicial Deference [16:58]
Bob Zadek: And judicial deference means—is a point of view that suggests that the courts, specifically the Supreme Court, should bend over backwards to find laws constitutional because laws were passed by representatives of the people, and we live in a constitutional democracy, and therefore we have to give respect—we being the courts—to the will of the people. So a concept of judicial deference is one that says you, to the greatest extent possible, if a law can be found at all to be constitutional, then that’s what a court should do. They have a bias in favor of finding a law constitutional.
Now, what’s interesting, that you can see with very little effort a common thread. Progressives, who tend to favor as a system of government very much of top-down control, where you have a small number of wise elected officials at the top controlling huge swaths of American life—and they’re smarter than the rest of us and therefore they are to decide—in the issue of deference, the courts are buying into that. Felix Frankfurter, Oliver Wendell Holmes, they buy into that system, and they say, “We defer to the wisdom of the legislature, even if along the way individual rights may be sacrificed, because that is what we are supposed to do.” And so the issue of deference elevates the elected officials and the democratically selected branches of government, elevates them in my view above the Supreme Court. So the Supreme Court almost subordinates its own role in American life. Is that a fair summary, or am I reading too much into this?
Damon Root: The original progressives, you know, of the late 19th, early 20th century, they really wanted the courts to play a very, very small role in these questions of the government’s role in the economy. And they thought that the courts should almost never declare an act of a state legislature or Congress unconstitutional. They thought that the proof, the burden of proof to declare an economic regulation, for example, unconstitutional was so high that it could almost never be met. That in effect, the judges, their job was to basically kind of put the thumb on the scale on the side of the law and tip the scales in favor of that in all instances. And there’s no question that someone like Felix Frankfurter, who was a progressive activist as well as a law professor and an advisor to Franklin Roosevelt’s New Deal, and then Roosevelt appoints him to the Supreme Court—he very much believed that the elected branches of government, that lawmakers, legislatures, the president, people like that, should be given just a wide, wide degree of latitude by the courts.
Economic Rights and the New Deal [20:17]
Bob Zadek: And now you mentioned the next topic that I want to get into because it’s so important: the concept of economic regulation, economic rights. We all have grown up learning that we have certain civic rights that cannot be abridged by government. Free speech, the right of freedom of assembly, freedom of religion, freedom from unreasonable searches and seizures, the right when we’re incarcerated not to be treated in a cruel and inhuman manner. So we all can recite from memory, because we are well-educated, what our civic rights are.
But there is another branch of rights, and they are called unenumerated rights—that is, they are not specifically mentioned in the Constitution or in the Bill of Rights. But most observers of American civic life believe they exist. They are economic rights: freedom of contract, the right to—and Damon, you call it free labor—the right to sell whatever you want at a fair price as long as you don’t commit a crime in doing so and commit fraud. And so, but these over time, these economic rights—think minimum wage, and of course we’re going to talk about Lochner after the break—these economic rights have become over time subordinated, if not totally written out of our system. Tell us about economic rights.
Damon Root: Well, you’re absolutely correct that they’ve achieved a sort of second-class status in the hierarchy. And that was not always the case in our legal history. During the progressive and New Deal periods, for example, the courts were regularly striking down economic regulations because the court found that they violated economic rights. The basic idea is that it comes from, in the 14th Amendment, it comes from the free labor philosophy of the abolitionists and the radical Republicans who ratified that amendment, added it to the Constitution in 1868. And it was this idea that we each as individuals own ourselves, own the fruits of our labor, and as long as we’re not harming someone else, we’re not harming the public—you know, you may not be allowed to build a nuclear reactor in your basement because that would harm your neighbor, could harm yourself—but if you’re engaging in a basic occupation, you want to drive a taxi cab, you shouldn’t have to go through burdensome licensing processes. You know, things like that, that those are basic economic rights that individuals enjoy in this country and enjoy them under the Constitution. And the courts should protect them at the same level that the courts protect the right to freedom of speech and the right to free association and those sorts of things.
And once upon a time, the courts did protect those rights at the same level. And then that was something that changed at the end of the New Deal. Legal scholars talk about the New Deal constitutional revolution in 1937, 1938, and then in the early ’40s in a series of Supreme Court cases. The Supreme Court basically backtracked on its former protections of economic liberty and said, “Well, we’re not going to do that anymore. From now on, we’re going to defer to regulators, to lawmakers, to government officials, to bureaucrats,” and uphold their regulation. And we’re going to treat economic rights as if they may exist, but they receive very little respect and attention from the courts. And essentially, the courts have acted as a sort of a rubber stamp in favor of the regulatory state since the end of the New Deal.
Bob Zadek: And that is because economic rights crash into economic regulation, which of course grew astronomically during the New Deal and thereafter and interfered with the broad system of top-down control that progressives so much enjoy. This is Bob Zadek. I’m spending a wonderful morning talking with Damon Root. Damon has written Overruled: The Long War for Control of the U.S. Supreme Court. 800-345-5639 to join our conversation. We’re going to take a 60-second break. Be back very shortly. Please stay tuned.
Lochner v. New York and the Right to Contract [25:05]
Bob Zadek: Welcome back to the Bob Zadek Show every Sunday at 9:00 AM. The only live libertarian talk radio show on the air all weekend. Thanks so much for listening. 800-345-5639 to join my conversation with Damon Root. Damon has written Overruled: The Long War for Control of the U.S. Supreme Court. Damon is a senior editor at Reason Magazine. His writings have appeared in the New York Post, the Daily News, Chicago Sun-Times, Washington Times, Wall Street Journal, and many, many other publications.
Damon, we were talking before the break about economic rights and how they have become subordinate. Economic rights include or speak to such issues as, for example, the minimum wage. Now, the discussion in America today over the minimum wage or the living wage is at this level: people deserve it. It’s a good thing, it’s a bad thing, it’s not going to increase the prices or it is going to increase the prices, it’s going to put lower-skilled people out of a job—that’s good or that’s bad. It’s all this policy discussion. There’s almost no discussion of the core constitutional issue, which is: minimum wage laws are laws that criminalize two consenting adults who want to enter into a contract for the sale of labor. And the worker says, “I would like to sell you my labor for $6 an hour because that’s what it’s worth.” And the employer says, “That’s a good deal. Your labor is worth $6 an hour. Start tomorrow.” That’s a transaction between two consenting adults basically enjoying economic freedom, the freedom to enter into a contract. Putting aside that it’s nice to earn more money, isn’t that a wonderful example of the tension between economic freedom and the extent to which the legislature can deny that freedom?
Damon Root: Well, that’s right. The classical understanding of economic freedom, the way the courts understood it a century ago and the way libertarian legal scholars and advocates talk about it now, is that the government, under the Constitution, the government can play a role regulating the economy, but it has to be justified as a public health, safety, or welfare measure. So if you’re talking about something like pollutants going into the river, the government can, under the Constitution, the state governments can do something about that. They have some limited authority to regulate in that area. But when you get into these questions of the relationship between the worker and the employer, if it’s a workplace health or safety condition, then there may be some role for the government. But when you’re talking about bartering over wages, then that no longer—that just becomes more of a special interest legislation kind of question rather than a public health or safety one. And therefore, the liberty of contract doctrine and the economic liberty doctrine, that comes into play and argues that the government is exceeding its power in that instance.
Bob Zadek: So for our listeners out there who might be wondering how a libertarian would view this issue, or some libertarians might, or those people who favor maximizing individual freedom, the question is: what’s wrong with, as a policy matter, what’s wrong with two people simply having freedom to enter into a contract? There is no victim. Two people are voluntarily doing it. Sure, one person might need the money more, but the contract is mutually beneficial. The person selling their labor gets a benefit—he gets money when he has time on his hands—and the employer gets to buy labor for what it’s worth. So we have two people peacefully cooperating, entering into a transaction, and that transaction, otherwise mutually beneficial, becomes criminal because of the application of minimum wage laws. So that’s a perfect example of the subordination of economic rights.
Now, as Damon pointed out, for a good deal of our history, economic freedom was taken for granted. People were allowed to enter into these economic contracts between two adults, and they were allowed to do so. And it’s only with the advent of the progressive movement that economic rights, which interfered with a progressive’s worldview of how the country ought to be run, that economic rights got subordinate.
Now, the focal point—at least I learned the focal point in doing reading on economic rights—we all end up sooner or later, usually sooner, learning about the famous or infamous, if you’re a progressive, Lochner case. And if you do any reading in this area, sooner or later you will be introduced to the Lochner case. Damon, you talk about the case in your book. Tell us about Lochner.
Damon Root: Sure. Well, it’s a decision the Supreme Court issued in 1905, and it had to do with—it came out of New York, the case is Lochner v. New York—and it came out of a New York law called the Bakeshop Act, passed in 1895. And this regulated the baking industry in all sorts of ways throughout the state. You know, height of ceiling, drain pipes—you name it, all sorts of different regulations. But one of the things the law did was it limited the amount of hours that bakery employees could work. So it was a 10-hour maximum day, 60-hour maximum week. It was illegal to work longer hours than that.
And the Supreme Court took this case, and the court said that the maximum hour provision has nothing to do with health or safety. You know, you can work 12 hours a day in a bakery and the bread is just as safe to eat and just as healthy. It’s not dangerous for the workers in any way to work more than 10 hours a day. So it’s not a health or safety law, unlike the other provisions of the act which the court said were fine—you know, the height of ceilings and drainage pipes and things like that. They said those are health and safety, but the maximum hour law is not. And they struck it down. They said this violated the right to liberty of contract. The employer had a right to say that this is how many hours I need people to work, and the employee had a right to contract to work for those hours.
And this was a case that progressives at the time and ever since have pointed to as conservative or libertarian judicial activism. They said the court just took this sort of laissez-faire economic theory and read it into the Constitution and overturned the will of the people of New York who wanted to regulate this industry, the progressive lawmakers who had enacted this law. And so this is really the case that set the terms of the legal debate for the next 30 years. And so Lochner, as I said, is in 1905, and so for the next 30 years Lochner is the law. It’s cited in some very Supreme Court cases that deal with economic regulations. And progressives and then the New Dealers, they hate this decision. They want it overturned. And in 1937, the Supreme Court does overturn it. And that is the one of the moments I referred to earlier as the New Deal constitutional revolution, where the Supreme Court said that we used to protect economic liberty, we used to protect liberty of contract, but we’re not going to do it anymore. It’s done, it’s finished. And that doctrine has, in fact, been dead ever since.
Crony Capitalism in the Lochner Era [30:58]
Bob Zadek: And what’s interesting about Lochner, what’s not in the decision, but—and this pops up so often, Damon, as you know—is that the subtext was that why was this case, why were these statutes enacted? Well, what happened was there were these large union-employed bakeries, sort of corporate bakeries, that were making money. And along came these mom-and-pop bakeries, immigrant bakeries, staffed by other immigrants, family members, who worked their butts off around the clock making—and therefore the cost of their production was much lower—and they were aggressively competing against the corporate bakers. And this was actually a crony capitalism statute, because the statute really was done to put these family-owned bakeries at a competitive disadvantage. So the subtext was, while couched in the purity of protecting the poor worker from themselves, in reality, it was just yet another, although an early example, of crony capitalism. You don’t get that from the decision, but that in fact is the fact underlying Lochner.
Damon Root: Yeah, there’s been a lot of great historical research that’s been done into the case in the years since, and that’s one of the things we now know is that the bakery unions pushed for this law, helped get it on the books. They were the driving force behind it. And in fact, the owners of the large corporate bakeries basically supported the law also because it drove their competitors out of business. If you were one of these small immigrant-run, as you said, mom-and-pop bakeshops, your competitive advantage lay in the fact that you had these older baking processes where they needed people to be on premises for longer to get the bread out, and that was how they were able to compete. So once the 10-hour day becomes the law, they start getting driven out of business, which doesn’t bother the large bakeries one bit. But it’s true that if you go to a law school today, you’re going to hear about this case as these evil employers trying to exploit these poor workers, when in fact you had—it was basically a question of different types of bakeries against each other. And one, the large bakeries, had the state lawmakers on their side and had the force of law behind them, and then these sort of upstart smaller bakeries, they didn’t have that and they were challenging the law.
Bob Zadek: You mentioned the word “exploit.” I always perk up whenever that word comes into the conversation. It’s one of those words like “greed” that I always get very alert when it’s mentioned. I never understand exactly how the word “exploit” can be used in labor relations. Now, I’m going to be a little bit extreme, but the point being that hiring somebody at a wage they’re willing to work for, you’re doing the worker a favor—you’re giving him a job. And how is it exploitation to merely say, “If you want to sell your work at this dollar per hour, we agree to buy it”? How can that possibly be exploitation? And yet it pops up all the time, especially in economic regulation cases such as minimum wage and other areas. It’s just simply freedom of contract. Now, it may be in any contract one party needs the deal more than the other, but the counterpart is not exploiting it; he’s simply there with the money when the person needs it. So it’s no more exploitation than if somebody desperately needs money and sells their car very inexpensively because they’re in a hurry for the money because they have a medical emergency. The buyer of the car is hardly exploiting; he’s taking advantage of an opportunity caused by the distress of somebody else. And exploitation is one of those words that I sort of react to when it’s used in this kind of a conversation of economic regulation.
Damon Root: Well, it’s certainly a term that’s used a lot in reference to the Lochner case. You can find that kind of language surrounding it quite a bit. And one of the things that you learn when you dig a little deeper is that the story is much more complicated than that. And in fact, it’s not this sort of simplistic morality tale of the big evil bosses versus the poor workers. It’s the story of one aspect of the industry kind of capturing the law to use it on its behalf, and that that hurts another type. And so you’ve got poor workers at these bakeshops who are at the risk of losing their jobs because of this regulation. And then the court also finds that this regulation’s not something that protects them from unsafe working conditions or anything like that as well. So it’s not quite the story people think it is, and that’s one of the things that’s very interesting about when you dig into this legal history, is a lot of these cases have more going on than the sort of the gloss, the soundbite version of them.
The Conservative-Libertarian Legal Schism [38:37]
Bob Zadek: The Wall Street Journal, which gave you a wonderful review of your book, they took issue to some degree with your use of the term “war” in describing the tension between conservatives and libertarians. Tell us about the fault line between conservatives and libertarians on the issue of the role of the Supreme Court.
Damon Root: The conservative legal movement that we know today is the product—it kind of grew up in response to the liberal court victories of the ’50s and the ’60s, the Warren and the Burger Courts. And so there was a—as well as being modeled on the civil rights movement achieving success through the legal means. And so we had this conservative legal movement that’s grown up over the past 40 years and is extremely influential and has a control of the Supreme Court now and is very influential within the right and within the Republican Party.
Bob Zadek: And that’s the Federalist Society is perhaps the point organization in all of this.
Damon Root: Sure. Yeah, the Federalist Society is a key organization there. And so as this is happening, there’s within the ranks of that broader movement, there’s this sort of libertarian insurgency that’s growing up that actually disagrees with the conservatives on a number of issues. But the real fault line is really over this question of the role of the courts. And so should the courts be deferential to the elected branches of government? And so for the conservatives of the past 30 years, one of the key issues has been privacy—sexual privacy, birth control, abortion—those cases. Because the right to privacy is an unenumerated right. It’s not listed in the Constitution. I think everybody takes for granted that they have a right to privacy, but in fact, it’s a right that’s not listed in the Constitution. And in 1965, the Supreme Court said, “Well, you have a right to privacy,” and in that case, the Supreme Court struck down a Connecticut law which banned the sale of birth control to married couples. And then a few years later, the court said, “And within that right to privacy, there’s also a right to an abortion.” So conservatives don’t like those opinions. They think that that was untethered from the text of the Constitution, that it doesn’t speak to a right to privacy, therefore you don’t have one and the court should not invent one. That’s the conservative view.
Bob Zadek: And Justice Scalia is pretty much true to that line of thought.
Damon Root: Yes, he’s held to it very consistently. And the libertarian legal movement that’s risen up, they disagree with the conservatives on that. They say, “Of course there’s a right to privacy in the Constitution. Of course the state should not be able to prevent married couples from obtaining these birth control devices to use in the privacy of their own home. They’re not harming anyone. It’s government overreach. It’s a sort of a classic example of government overreach.” And so there’s this schism there.
But the people like Scalia and Robert Bork and John Roberts, they apply that deferential philosophy also in economic regulation cases. So they basically have said, “Well, you know, the New Deal constitutional settlement is basically, we’re going to abide by it. We’re going to say that the courts should treat economic rights in this second-class way, and the courts should also treat privacy and those kind of unenumerated rights also in a second-class way.” And libertarians disagree with that. And so you’ve had these instances where Scalia has debated libertarian law professors over whether or not the Constitution requires the courts to actively protect economic liberty. And Scalia has said it doesn’t, and it would be a terrible idea. And his concern, I think, is he doesn’t want—if the libertarian view becomes prevalent, it’s just going to encourage the liberal judges to be more aggressive themselves, and he wants to kind of curb all of that. And Bork felt the same way, and I think John Roberts feels that way as well, and we saw that come out in the healthcare case.
So this is this debate that’s going on within the ranks of the right between libertarians and conservatives. And I think it is actually fair to call it a war because the libertarians, who have been a very small section within the broader conservative legal movement, have been just waging a very aggressive campaign, a war of ideas, trying to persuade conservatives to come around to their point of view. And I think that they’ve had quite a bit of success. If you think about the healthcare case in 2012, that one of the questions there was: does the federal government, does Congress have the authority under the Commerce Clause to impose the individual mandate, to make Americans buy health insurance? And that’s a debate that’s been happening since the New Deal—just how broad is the Commerce Clause? One of the lawyers who was the architect of that legal challenge is a man named Randy Barnett, who’s a law professor at Georgetown. And he has been arguing for a very narrow reading of the Commerce Clause for a long time, and he thinks that the federal government has grown too powerful under a broad reading of that clause. Well, in 2005, Randy Barnett argued a medical marijuana case at the Supreme Court, and he lost. And he lost because the court said the Commerce Clause is broad enough to trump—what had happened there was California had legalized medical marijuana.
Bob Zadek: That was a terrible decision. Oh, the Raich case. That was a painful decision.
Damon Root: Yes, and California had legalized medical marijuana, and the federal government said, “Well, it’s still illegal under federal law,” and that was based on the Commerce Clause. And Randy Barnett lost that case, and Scalia and Kennedy voted against him. They voted in favor of a broad Commerce Clause power. And just seven years later, Barnett’s arguments, the same arguments he’d always been making about the Commerce Clause, they now are the default conservative position. Basically, the entire conservative movement in America lined up against Obamacare in that case. And Scalia sort of changed his views, and Roberts was the one who sort of held to this older, more old-fashioned, if you want to call it that, conservative view. So I think it’s fair to call it a war. I think the libertarians certainly see it as a war that they are fighting this uphill battle against both progressives and conservatives. And maybe people at the—Michael Greve, who wrote the review for the Wall Street Journal, I think that he even kind of conceded in that piece that the libertarians have gained quite a bit of ground, and we now see that the libertarian view is much more dominant on the right than it was 30 years ago. And that is the result of this long, decades and decades of intellectual war. You know, this is law review articles, speeches, debates, bringing court cases—I mean, you name it, they’re just sort of waging battle at all levels of the legal process, pushing their views.
Bob Zadek: And part of the reason is, I think, because the libertarian movement is so intellectually alive. There is so much brilliant writing and aggressive active scholarship in this battle of ideas. The libertarians are on a roll. And so the conversation in America today is invariably the libertarians have a seat, not only a seat at the table, but often they are at the head of the table leading the debate. And while they don’t always win, when you get to frame the debate, you in effect have won.
Damon Root: No, I think that’s exactly right. I think we can see that in gun control, we can see that in the healthcare debate, that the traditional conservative view of deference has fallen out of favor largely on the right. There’s still people who believe it and push those ideas, but more and more conservatives say, “No, no, the court should be really aggressive here and they should be striking down these laws.”
Bob Zadek: And so many of the decisions that the Supreme Court has to decide are decisions about issues that are very important to libertarians: gay marriage, gun control, legalization of marijuana and other controlled substances—or decriminalization, if not legalization—and Rand Paul with his reducing the nature of the punishment for these low-level drug offenses. These are all and have been for a decade libertarian issues that right now are the issues being discussed in America. It just gives me goosebumps at how much libertarian thought is controlling, or at least has an important role in the public conversation. Indeed, the fight over Obamacare, the warriors in the battle against Obamacare are for the most part libertarian or libertarian-leaning attorneys, and the strong support comes from libertarians. And right now we are about to have yet another Supreme Court case again driven by libertarian law firms.
Damon Root: Yeah, that’s right. The King v. Burwell case. There’s the folks at the Cato Institute, law professor Jonathan Adler, who’s a libertarian who writes for the Washington Post, Michael Cannon at Cato have been just huge in creating that legal challenge and identifying that problem with the law. You know, I mean, this was a law that was passed by Congress that nobody in Congress read the whole thing, but those guys read it and they found these problems with it and were able to mount this legal challenge which the Supreme Court is going to take up this year.
Occupational Licensing and the Louisiana Casket Case [46:58]
Bob Zadek: Another example of economic liberty that has been so abused in the legislature, and you mentioned it in your book—and we’ve discussed it on my show many times, and I will not pass up an opportunity to discuss it—is the whole subject of occupational licensing, which you’ve of course discussed in your book and you discussed the casket case down in Louisiana with the monks. Tell us about that issue.
Damon Root: Sure. Well, the way that coincides with the libertarian legal view is that under the philosophy of free labor and the libertarian vision of the 14th Amendment as protecting economic rights, one of the things it protects individuals from is government regulations that don’t serve a legitimate health or safety purpose and that are either just trying to keep people out of an industry, that they act as some sort of economic protectionism or something like that. And occupational licensing is an area that’s just rife with that sort of abuse.
So in the Louisiana casket case, the state law said that to sell a casket, a coffin, to someone, you had to be a fully licensed funeral director. And to become a licensed funeral director in the state, it took, you know, many hours of study, thousands of dollars in terms of course fees, you had to embalm I think it was 25 dead bodies as part of the study. So it’s a year or two of your life.
Bob Zadek: Just to build a wooden box.
Damon Root: Just to build or even just to sell a wooden box. You know, so these—this is just selling these things or building them. You know, you don’t have to—you’re not dealing with human remains, you’re not actually doing any sort of funeral director work. And so there were these monks down there who had been building for their own use, their own purpose, these traditional handmade wooden caskets, and then to fund some repairs to their abbey, they started to sell them. And the state came after them and said, “Well, you know, you’re not licensed funeral directors, you know, you can’t do this.”
Now, I should just add in terms of the state law in Louisiana, it was legal in Louisiana to be buried without a casket. There were no requirements in terms of casket design. If you were going to be buried in a casket, it didn’t matter what it was made of, the lid didn’t have to be nailed down. I mean, essentially there’s no health or safety regulations dealing with caskets whatsoever in the state.
Bob Zadek: Just protecting the income of the funeral directors.
Damon Root: Protecting funeral directors. That was the only regulation. And so the Institute for Justice, these lawyers who I write about in the book, they brought this case and they went to the court and they said, “Listen, you know, there is no conceivable justification for this law.” And that in fact is the legal standard they have to meet under these deferential precedents: is that there’s no conceivable legitimate government purpose that this law could possibly serve. And the court said, “You know, you’re absolutely right. There is just no—it fails the smell test on every possible level.”
Bob Zadek: And what’s astonishing is the state of Louisiana was so aggressive in defending the statute. They didn’t just cave; they fought and they fought and they fought.
Damon Root: That’s right. They fought all the way up to the U.S. Court of Appeals, which is the highest level—that’s the level below the Supreme Court. I mean, they took it as far up as they could possibly go. And you know, other states have also—Tennessee, Oklahoma also had these kind of laws on the books. And the Tennessee one was—
Bob Zadek: Damon, I have to interrupt. We’re going to have to—regretfully, we’re going to end the show in about 30 seconds, and I just want to close by thanking you so much for giving us an hour of your time and to remind the audience: if you believe as I do that people ought to have the right to enter into a contract to sell their services, sell anything, free of government interference so long as there’s no fraud—it’s just the exercise of economic freedom—then welcome to libertarianism. You’re one of us. Thanks so much for listening. Thanks again to Damon Root. This is Bob Zadek saying so long for now. I’ll be back, promise, next Sunday at 9:00 AM. Thanks so much for listening and have a good day.