Monthly Archives: February 2014

Harvard Law Professor (and recent OIRA head) Cass Sunstein has had some columns lately on Bloomberg View that seem to be squarely in my wheelhouse as an originalist and a libertarian. The most recent one is Resist the Sirens Call of Originalism. Before that was How to Spot a Paranoid Libertarian.

The columns have a striking similarity, in that they both attack extremist or caricatured versions of originalism and libertarianism, and appear to concede that the moderate version has some virtues.

Paranoid libertarianism, says Sunstein, is defined by five characteristics: 1, a belief that government will inevitably abuse its authority in any given area; 2, a presumption of bad faith by government officials; 3, a sense of victimization; 4, a refusal to engage in tradeoffs; and 5, an enthusiasm for slippery slope arguments. (These characteristics seem overlapping to me.)

Yet so far as I can tell, Sunsteins criticism of the category has nothing to do with non-paranoid libertarians, or with those who identify as classical liberals. For a good example on the other side, see this recent column by Richard Epstein, who distinguishes classical liberalism from libertarianism.

It is a little less transparent, but the same thing seems to be going on in Sunsteins column on originalism. Sunsteins three objections to originalism are 1, that the Constitution itself may not embrace originalism since it uses abstract terms; 2, some things (like wire-tapping) were unanticipated by the framers; and 3, originalism would deeply unsettle modern law, unless it embraces precedent, in which case it doesnt count as originalism.

Objections 1 and 2 are simply not true of most sophisticated originalists, who acknowledge that when a constitutional provision was intended to have broad or evolving scope, the originalist thing to do is to give it broad or evolving scope. (This also makes it easy to accommodate new situations.)

To be sure, originalists do sometimes argue that people like Sunstein are far too quick to assume that a provision is broad and abstract, but this a difference in application, not theory. Serious originalists ought to agree with Sunstein that a provision should not be interpreted to be more originalist than it was originally intended to be.

Objection 3 brings us back to a recurring theme of my recent originalist posts. Critics of originalism dont get to just declare that embracing precedent which nearly all originalists do, to differing extents is not the originalist position. Or if they do wish to define originalism so as to exclude most of its practioners, then they ought to be clear that they are attacking only an extreme version of the theory.

So it seems to me that the upshot of Sunsteins columns ought to be: extreme originalism and paranoid libertarianism are bad, though regular originalism and libertarianism are (apparently?) fine. Yet I fear that by the fallacy of mood affiliation, readers may think Sunstein has also struck a blow against regular originalism and regular libertarianism.

More:
Thoughts on Cass Sunsteins criticisms of libertarianism ...

The idea that one may get along without the help of others is so obviously false that its affirmation amounts to a confession of some form of ignorance at best. One cannot grow to adulthood without help from others. That should settle the matter. Apparently however, some adults believe themselves capable of getting along without the help of others. To this I would simply say Show me. Can the entrepreneur get along without customers, or the industrialist without workers? The simple truth is, they cannot. Yet somehow I dont expect the simple truth to be taken seriously, which is a sign of something. They tend to regard their customers or workers as interchangeable parts. They tend to think that they are therefore more needed than in need. But this is not the normal state of affairs. Yes, the addict needs the dealer more than the dealer needs him. But non-addicts do not need the dealer at all. Likewise, those not addicted to convenience can do without the vast majority of what the industrialist and the entrepreneur have to offer. Now all of this is rather obvious. What blinds us to it is our addiction to convenience. (I say our to include myself as such an addict. My only advantage is to have recognized the problem.)

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Libertarianism | graalbones

Kentucky Sen. Rand Paul is, from all indications, planning to run for president in 2016. Yet while Tea Party Republicans love Paul in part for his known affinity for libertarianism, that same reputation poses a bit of an obstacle for Paul when it comes to wooing social conservatives, who tend to see libertarianism as morally bankrupt and depraved. If Paul wants to have any shot at being the GOPs nominee in 2016, hell have to either win over, or at least placate, these still-vital members of the GOP coalition.

Thats the context you need to understand to interpret Pauls recent speech for the American Principles Project(APP), a right-wing activist group that holds very conservative views on abortion and same-sex marriage.

While speaking to the APP, the anti-choice Paul tried to assuage his audiences fears by insisting that libertarianism and social conservatism can work together in perfect harmony. To some, thats sort of still a bad word, Paul said of libertarianism. To others, its a word that may expand the party.

Libertarian doesnt mean libertine, Paul continued. To many of us, libertarian means freedom and liberty. But we also see that freedom needs tradition.

Paul then tried to tie his support for prison reform as fundamentally Christian in nature. I think there are things we can and should talk about, as Christians, who believe in forgiveness, Paul said.I think the criminal justice system should have some element of forgiveness.

Hoping to seal the deal, Paul then played his trump card: implicitly comparing himself to Ronald Reagan.

Everybody else told Reagan to shut up, too, he said. They said, Shut up and wait your turn.

See more here:
Rand Paul tries to sell social conservatives on libertarianism