Jo Jorgensen on lockdowns

Jo Jorgensen was the 2000 Libertarian Party candidate for VPOTUS, and the 2020 Libertarian Party candidate for POTUS. The following is from her 2020 campaign website:

Dr. Jo Jorgensen pledges to sue states for unconstitutional lockdowns that harm low and middle-income families | Jo20.com

"Democrats like Joe Biden constantly promise to harm the wealthy for the benefit of low and middle-income families. But so-called income inequality was actually falling between 2016 and 2019, according to a report by the Federal Reserve. In fact, low-income families gained the most, and high-income families gained the least. But now this progress has stalled. Why? Because of the COVID-19 shutdowns, most of which were illegal.

"As President, I would use the Attorney General’s office to sue state and local officials who impose COVID-19 mandates. Such mandates violate the 14th Amendment, which says 'nor shall any State deprive any person of life, liberty, or property, without due process of law.”'The shutdowns were dictated by governors without due process. That makes them unconstitutional acts of aggression. Some court rulings have already confirmed those, others have disagreed, and some are still pending. I would add the weight of the federal Executive Branch to these cases."

https://jo20.com/dr-jo-jorgensen-pledges-to-sue-states-for-unconstitutional-lockdowns-that-harm-low-and-middle-income-families/

UPDATE, January 3 - I have expanded the page by adding part of an interview NPR did with Jorgensen in May.

Libertarians Name 2020 Candidate: Meet Jo Jorgensen | NPR: 

May 30, 2020 - "After four days of online campaigning and speechmaking, the Libertarian Party has selected its nominee. NPR's Scott Simon speaks to Jorgensen, an activist who teaches psychology at Clemson University....

SCOTT SIMON, HOST: The Libertarian Party has nominated their candidates for president and vice president online. Jo Jorgensen, a party activist who teaches psychology at Clemson University, is the 2020 Libertarian candidate for president. She joins us now from Greenville, S.C. Dr. Jorgensen, thanks so much for being with us.... You've been critical of the federal government's response to the coronavirus crisis. What would a Libertarian administration do?

JORGENSEN: Well, the Libertarian administration first wouldn't have put everybody under house arrest. We believe in individual freedom and that people should be able to go about their lives as they choose. And I'd like to point out that part of the problem that we had is that people weren't tested to know if they were contagious or not, if they had the virus or not. If people who had the virus knew they had the virus, then they would have been able to know to stay home or not go about their daily lives. But the people who are healthy or who have already had the flu let the economy go on and don't destroy the economy in the process.

SIMON: I want to follow up on your use of the phrase house arrest. I doubt any governor or mayor who declared that people should stay at home would consider that to be house arrest.

JORGENSEN: People who want to go out and go about their daily business felt like it. And in fact, I know here in South Carolina, I was told I could only leave the house to go to work, medical emergencies and other things. And within my city, if there were more than three people outside, then there was a possibility that we would either be fined $100 or that we would go to jail.

SIMON: But isn't - in the middle of a pandemic, isn't that just wise?

JORGENSEN: Of course, it's wise to stay at home during a pandemic, especially if you've got other conditions. My problem, though, is that the government is the one who decided it and not the individual person. And in fact, when they did a survey - what? - maybe about a month ago and they asked people, should we be opening up the economy, something like 60 to 80% of the people said no, it's too soon. We should still stay at home. OK, so that just shows that people have enough common sense to stay at home without the government telling them to.

SIMON: There are now more than 40 million unemployed people in the United States. You have opposed, I gather, the stimulus bills that have been passed to provide unemployment benefits and other forms of relief. Why?

JORGENSEN: Because what we're doing is we're letting the bureaucrats spend the money how they want to. And it's going to the large corporations and not often to the people who need it. So I say that private charity always works best. What happens when you give money to the government, and let's say they don't spend it wisely? Nothing happens. Taxes get raised, but it's not like people get fired. There is absolutely no accountability. And one of the things that brought me into the Libertarian Party is the idea of voluntary cooperation, of how people working together can do a better job.

SIMON: But when 40 million people are unemployed virtually at once, I mean, how can you begin to raise the amount of charitable capital? Particularly, by the way, I believe one of the stories we keep doing is that individual donations are way down because 40 million people are out of work.

JORGENSEN: Right. Well, don't forget, if the government hadn't shut down the economy, people wouldn't have lost their jobs in the first place. So this is typical where the government breaks your leg and then thinks that you should be grateful that you're getting a crutch from them. If the government doesn't break your leg to begin with, you don't need the crutch.

Read more: https://www.npr.org/2020/05/30/866059206/libertarians-name-2020-candidate-meet-jo-jorgensen

Also read: Libertarians oppose all the mandates

Pennsylvania lockdown was unconstitutional, federal judge rules

Federal Court Rules Pennsylvania's Lockdown Order Unconstitutional | Reason - Christian Britschgi:

September 14, 2020 - "A federal judge on Monday has ruled that lockdown restrictions imposed by Pennsylvania Gov. Tom Wolf (D), including a ban on large gatherings and the closure of 'non-life sustaining businesses,' are unconstitutional. While those restrictions were "well-intentioned," wrote U.S. District Judge William Stickman IV, 'good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable and the intent is good—especially in time of emergency."

"In May, Wolf and Pennsylvania Department of Health Secretary Rachel Levine were sued by a coalition of counties, federal and state elected representatives, and several small businesses over the state's coronavirus restrictions. The restrictions included a shelter-in-place order requiring people to stay in their homes, a closure of all 'non-life-sustaining' businesses, and bans on gatherings of more than 25 people indoors, or 250 people for outdoor gatherings.

"The plaintiffs collectively argued that the governor's restrictions on gatherings violated the First Amendment's protections of free speech and assembly. The shelter-in-place order and closure of businesses, they contended, were a violation of their rights to substantive due process under the 14th Amendment.... 

"In regards to restrictions on gatherings, Stickman ruled that these were not 'narrowly tailored' but 'rather, they place substantially more burdens on gatherings than needed to achieve their stated purpose' of controlling the transmission of the virus. The fact that the governor's orders allow people to visit malls, restaurants, and stores in greater numbers than what the state's restrictions on gatherings permit showed that the latter were overly broad, Stickman wrote. His opinion also cites comments from Wolf's chief of staff about how large protests — which the governor attended — didn't lead to a 'super spreader' event as evidence that restrictions on gatherings were overly broad.

"Stickman similarly ruled that Wolf's order closing non-life sustaining businesses was also overly broad and arbitrary, and deprived Pennsylvanians of their right to earn a living under the 14th Amendment. Stickman also wrote that population-wide lockdowns are 'such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.'"

Read more: https://reason.com/2020/09/14/federal-court-rules-pennsylvanias-lockdown-order-unconstitutional/

SHUTDOWN PROTEST NOTICE

IMPORTANT INFORMATION ON U.S. SHUTDOWN PROTESTS

by George J. Dance

There are two types of Americans protesting their state governments' emergency shutdown and stay-at-home orders. In order to understand the protests, it is essential to be able to tell the difference.

The first type of Americans consists of libertarians. They support the goals of the emergency orders (to reduce human interaction by 50-75% through 'social distancing'), but believe that achieving social distancing should be done voluntarily, to prevent violating the Constitution and vandalizing the economy. Accordingly their protests obey social distancing guidelines: they mainly stay inside cars, drive past legislatures (and governors' offices and homes), and honk their horns.

The second type has to be called (with apologies to intelligent supporters of the President) trumptards. They often defy social distancing guidelines to crowd into state legislatures, looking like an armed mob trying to take over. Their position is unclear, though it appears to be that the pandemic is no threat, and the Democratic governors used it as a pretext for causing a depression in order to defeat Donald Trump.

Since trumptards have joined and (media-wise) hijacked libertarian protests, it is easy to confuse the two types. However, in order to understand the shutdown/lockdown protest phenomenon, it is vitally important to understand the differences between them.


This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Bipartisan majority supports violating constitution

Red and Blue America Agree That Now Is the Time to Violate the Constitution | The Atlantic - Adam Chilton, Kevin Cope, Charles Crabtree, & Mila Versteeg:

March 25, 2020 - ""To what extent should the Constitution be violated to fight the coronavirus? Lockdowns, especially ones that apply to people who haven’t tested positive for the virus, are constitutionally questionable. The threat ... to prosecute residents who spread false information about the virus ... could violate the First Amendment. Some people ... have challenged ... city ... authority to force a gun shop to close, citing their right to arm themselves. Perhaps most alarming, the U.S. Department of Justice 'has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies.'

"To assess how Americans weigh the trade-off between preserving civil liberties and halting the spread of the coronavirus, we ... presented a nationally representative sample of 3,000 U.S. residents with eight possible policy responses to the outbreak, all of which may be unconstitutional, including forced quarantine in a government facility, criminal penalties for spreading misinformation, bans against certain people entering the country, and conscription of health-care workers. We also asked our sample to imagine that public-health officials had reviewed the policies and estimated that each would likely save some number of lives, hypothetical figures that we provided.

"A majority of respondents supported all eight of these policies, most by considerable margins. The proposals with the lowest support were seizing businesses and banning all citizens and noncitizens outside the country from entering, but these policies still had 58 and 63 percent support, respectively. The proposals with the highest levels of support were banning noncitizens from entering the country (85 percent) and conscripting health-care professionals to work despite risks to their own health (78 percent). Both policies burden a defined minority of the population, so it’s not surprising that large majorities support them..... About 70 percent of respondents supported restricting people’s ability to say things that may qualify as misinformation. Likewise, 77 percent of respondents support suspending all religious services and gatherings.... And even when we explicitly told half of our sample that the policies may violate the Constitution, the majority supported all eight of them....

"Perhaps the most striking feature of our results is the broad bipartisan endorsement of these liberty-restricting policies. Like other surveys, ours reflected a huge gap between Democrats and Republicans in approval of President Donald Trump’s handling of the pandemic: 34 percent of Democrats expressed approval, while 88 percent of Republicans did. One might have reasonably concluded that different policy preferences were driving these responses....

"But our findings suggest that’s not the case. Democrats and Republicans ... show almost identical levels of support for detaining sick people in government facilities, conscripting people to work, prohibiting the spreading of misinformation, and banning all people (citizens and noncitizens alike) from entering the country. Seventy-four percent of Democrats supported each of the eight proposed policies, while 71 percent of Republicans did....

"Often, efforts to roll back civil liberties face political opposition, but now bipartisan support for rights-restricting COVID-19 responses could smooth the path for constitutional erosion. James Madison predicted as much when he described constitutional rights as 'parchment barriers,' easily transgressed when the majority is so inclined. And indeed, history presents numerous examples of liberty violations made in the face of security threats ... the Alien and Sedition Acts ... Japanese American internment camps during WWII, and the use of torture after 9/11. After the threat has subsided, Americans must recognize any constitutional violations for what they were, lest they become the new normal."

Read more: https://www.theatlantic.com/ideas/archive/2020/03/coronavirus-america-constitution/608665/

SC Libertarians call for Article V convention

South Carolina Libertarians, Republicans United In Supporting Convention Of States – FITSNews:

November 2, 2019 - "South Carolina Libertarians approved a resolution on Saturday ... at their annual state convention in Florence, S.C., calling on the GOP-controlled S.C. General Assembly to “join other states – including Florida, Georgia, Alabama, Tennessee, Indiana, Missouri, Arkansas, Louisiana, Oklahoma, Texas, North Dakota, Utah, Arizona and Alaska – in passing a resolution calling for an Article V convention of states.

"In urging state lawmakers to support 'constitutional amendments that impose fiscal restraints on the federal government, and limit the terms of office for members of congress,' the Libertarian resolution specifically cited Article V legislation recently introduced at the S.C. State House (H. 3125 and S. 112).

"The resolution also stipulated that any Article V resolution approved by state lawmakers must be 'specifically restricted to addressing the aforesaid issues.”

"The GOP resolution – which passed the party’s state convention back in May – was similarly worded, calling for an Article V convention that was 'specifically limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of congress'.....

"Critics of Article V legislation – including S.C. governor Henry McMaster ... claim there is no way to control the issues a constitutional convention may address, and have raised the specter that such a gathering could conceivably deprive Americans of their Second Amendment right to bear arms, among other essential liberties....

"Article V is the section of the U.S. Constitution which deals with amending our nation’s founding document.  An 'Article V Convention' is one of two methods by which changes to the Constitution can be proposed.  The other method is a two-thirds vote of the U.S. House and Senate....

"As of this writing, the convention of states method has never been engaged – but the concept is gaining momentum across the country. That is a map posted to the Convention of States Action website, which shows Article V legislation having been approved in fifteen states ..., having advanced through at least one legislative chamber in seven additional states and having been introduced for debate in another seventeen states (including South Carolina)....

"According to a January 2018 survey conducted by The Trafalgar Group, 44.2 percent of South Carolinians supported calling such a convention compared to 24.1 percent who opposed the idea.  The rest – 36.1 percent – were undecided. When asked whether they would support an Article V convention for proposing amendments that would address term limits and a balanced budget, though, support for Article V shot up to 64.7 percent."

Read more: https://www.fitsnews.com/2019/11/02/south-carolina-libertarians-republicans-united-in-supporting-convention-of-states/
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8th Amendment applies to states, SCOTUS rules

Why the Timbs case is about so much more than civil forfeiture | TheHill - Nila Bala:

March 1, 2019 - "[T]he Supreme Court has unanimously ruled that the Eighth Amendment, which bans excessive fines, applies to the states as well as to the federal government. The Supreme Court decided on the case of [an] Indiana man named Tyson Timbs, who was sentenced to home detention and probation for dealing in a controlled substance and for conspiring to commit theft. However, ... the state, under civil forfeiture laws, had also seized his $42,000 Land Rover vehicle, even though the maximum fine allowed in the case was $10,000.

"Civil forfeiture has come under fire by liberals and conservatives alike. Under most laws, an individual does not be charged or convicted for enforcement to seize his assets.... As if that were not enough, the police get to keep the profits they make from selling these assets, creating a perverse incentive for the state to take property without due process....

"The Timbs case, however, is about far more than the injustice of civil forfeiture. It brings attention to a larger problem of unchecked fines and fees that harm public safety and erode government accountability. These fines and fees are levied at every part of the criminal justice system, from charging people for their public defender ... to court costs, probation fees, and sadly even the costs of incarceration itself.

"Perhaps these fines and fees were first created because legislators had assumed that increasing the cost of crime would deter individuals from committing criminal acts. However, excessive fines and fees can actually contribute to crime.... Impoverished individuals often have to choose between paying for basic needs and paying fines and fees. Some cannot afford either of these and are driven to commit further crimes to survive.

"Even if they do not commit additional crimes, they could still end up in jail. Take the case of Tom Barrett, who was assessed more than $1,000 in fines and fees for stealing a $2 can of beer. He ended up selling his blood plasma to try to pay these charges, which continued to accrue interest. Eventually, Barrett was sentenced to a year in a jail because he could not afford to pay. He is not alone. When people cannot pay the fines and fees, they often end up facing heavy sanctions, which paradoxically include more fines and fees, along with drivers license suspensions, loss of the right to vote or, worst of all, incarceration in a de facto debtors prison. While struggling to pay these costs, people can lose their homes, their jobs, and even custody of their children....

"Moreover, the funding for collection activities often comes from the fines and fees themselves...., When police transform from guardians of our community to collection agents, they waste valuable time and resources that are better spent on addressing violent crime. A study found that every 1 percent increase in the share of revenues in a jurisdiction from fines, fees, and forfeitures is associated with a statistically significant 3.7 point decrease in the violent crime clearance rate, which means that fewer violent crimes are solved because police spend far too much time trying to collect fines and fees.

"The Timbs case makes clear that the Eighth Amendment applies to civil forfeiture by states. But symbolically, the Supreme Court ruling stands for so much more by opening the door for us to question our criminal justice system policies assessing fines and fees, which should be used to support the individuals involved and protect our communities. As it stands today, excessive fines, fees, and forfeitures accomplish neither of these goals."

Read more: https://thehill.com/opinion/civil-rights/432250-why-the-timbs-case-is-about-so-much-more-than-civil-forfeiture

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In praise of the public domain

by George J. Dance

January 1, 2019 - In Canada, January 1 is Public Domain Day, the day when works of art lose their copyright status and pass into the public domain. "Public domain" means that the art no longer has an owner who can charge (and therefore exclude) those who want to experience it. Physical copies are still owned; but anyone in the country – teacher, humble blogger, or even small press owner – can make their own copies without having to pay royalties for the privilege.

Public Domain Day happens today in the United States, as well, but there it is more momentous. January 1, 2019 is the first Public Domain Day in the U.S. in 20 years, the very first since the rise of the internet.

The concept of a 'public domain' has a long pedigree, reaching back to the Roman legal concepts of res nullus (things that cannot be owned) and res communes (things owned in common). In modern law, though, it is treated as a mere negative: the things to which property law does not apply. The term itself was coined by French poet Alfred de Vigny, who equated the end of a work's copyright with it falling "into the sinkhole of public domain." "Sinkhole" was a good description; For most books, songs and poems, the lack of copyright meant that no one would publish them; a work that fell into the public domain could well and truly disappear.

However, the internet changed all that. Project Gutenberg began putting the literary canon online – Internet Archive began doing the same for the rest of pre-1923 writing – Wikimedia Commons did the same for paintings and music. Today, rather than being lost to us, public domain works are available and freely accessible to billions.  

Simultaneous with the rise of the net in the 1990s, copyright holders began pushing to extend their copyrights. In 1995 the United Kingdom increased its copyright term, from life plus 50 to life plus 70 years. The United States followed suit in 1998 with its own 20-year increase, from 75 to 95 years. The British law was retroactive, declaring works already in the public domain (some already republished) back in copyright (and those published works therefore illegal). However, as the U.S. Constitution forbids ex post facto punishments, Congress had to be content with freezing copyrights for 20 years, effectively banning Public Domain Day for that time.

Canada has been under considerable pressure (most recently with the Trans-Pacific Partnership) to increase its own term. Thankfully, that pressure failed; not least, because such extensions of copyright are indefensible. A libertarian can accept the idea of giving a work's creator the sole right to use and profit from his work, even for life; and adding an extra fixed term insures his dependents against his accidental death. (For example, if a writer dies at 30, Canadian law lets his heirs collect royalties as if he had lived to 80.) But there is no justification for forcing consumers to pay royalties to a creator's grandchildren.  

Yet copyright advocates continued to demand more for another decade. Some, like Sonny Bono (a main proponent of the 1998 law), even argued for perpetual copyrights that would never expire. Perpetual copyright is also forbidden by the U.S. Constitution, which empowers Congress to grant patents and copyrights for "limited times" only; Bono and his ilk hoped to circumvent that by passing further 20-year extensions every 20 years, meaning that the next increase had to happen by 2018.

Fortunately, the internet changed all that, too. The tipping point came in 2012, when Congress debated the Stop Internet Piracy Act (SOPA), which would have forced ISPs to black out websites accused of copyright violation and blacklist the site owners. Online opposition to SOPA was massive and widespread, and in addition backed by big sites like Google and Wikipedia. For once the big money pushing to expand copyright was balanced by big money pushing back. "The defeat of SOPA was so complete," says website Ars Technica, "that it has essentially ended efforts by copyright interests to expand copyright protection via legislation."

Which is why the U.S. enjoyed a Public Domain Day this year. American copyright law today is far from perfect, and in many respects not even very good. But at least this day can remind Americans that, thankfully, their government no longer has carte blanche to make it worse.

Ron Paul and the "libertarian statists"

Ron Paul and the "libertarian statists" - George J. Dance, Nolan Chart:

February 22,2017 - "The role of U.S. Libertarian Party (LP) Chair is an administrative position, that normally receives little public attention. That changed this January, after the current Chair, Nicholas Sarwark, appeared on a year-end Lions of Liberty podcast to discuss the 2016 LP presidential campaign of Gary Johnson and Bill Weld. One comment in that 40-minute interview “caused an eruption in comments on Facebook,' and a 'debate [that] raged on social media'.

"During the discussion, the podcast host contrasted Johnson’s messaging with Ron Paul’s 'ideologically pure' libertarian message; to which Sarwark responded 'that you "run a very dangerous line" by identifying [libertarian] beliefs with any one personality.' Then Sarwark made the comment that touched off the storm, saying of Paul:

“He had policy prescriptions that were straight-up wrong and anti-libertarian. None of us should be given a pass on having to have actual libertarian positions, or not be able to be called out when you say you oppose marriage equality. You know, that’s not a libertarian position to have. State’s rights is not a libertarian position, and it’s something Ron Paul had pushed for a long time.”

"'Libertarian Party Chairman Denounces Ron Paul’s Support for States’ Rights,' was the headline on a Ron Paul Institute article by Adam Dick. 'The Libertarian Party believes Ron Paul is not a Libertarian,' headlined Liberty Conservative, with writer Chris Dixon smugly commenting: 'Before criticizing others for not being libertarian, the Libertarian Party should probably learn what it means to be a libertarian first'....

"Both fortunately and unfortunately, the storm blew over quickly. Fortunately, because it seemed like little more than an attempt by anti-LP libertarians to embarrass an LP figure, similar to many of the criticisms of Johnson and Weld during the campaign. Unfortunately, because (aside from [Mike] Maharrey’s contribution) there was little to no attempt to address the substantive issue that it reflected.

"At issue is the question of using the U.S. Bill of Rights, and the federal courts, to protect individual rights from state governments as well as from the federal government. Libertarians like Sarwark argue that 'the Federal government can protect the equal rights of people from state discrimination' – while 'states’ rights' advocates like Maharrey claim that one 'simply can’t reconcile [that idea] with the Constitution. Whether you agree philosophically with Sarwark’s constitutional construction or not, no founding era evidence exists to support it.'"

Read more: https://www.nolanchart.com/ron-paul-and-the-libertarian-statists
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Activist SCOTUS needed to defend U.S. liberty

George F. Will: The Constitution Is A Libertarian Tool - Investors.com:

October 21, 2015 - "A supremely important presidential issue is being generally neglected ... presidential candidates should explain how they would select judicial nominees....

"Republicans can't speak their minds about the judicial supervision of democracy because their minds are unsettled. Fortunately, they are being urged, by thinkers like Randy Barnett, to adopt a vocabulary that disconcerts conservatives who have grown lazily comfortable with rhetorical boilerplate in praise of 'judicial restraint.'

"Barnett, a Georgetown law professor, recently took to a place that needs it — the University of California, Berkeley — this message: 'The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.'

"In his lecture, 'Is the Constitution Libertarian?' Barnett acknowledged that in many respects American life 'feels freer' than ever, and that we have more choices. In other ways, however, freedom is too constricted, and individual rights are too brittle, because for decades America's Lockeans have lost ground to Hobbesians: 'The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends'....

"Lockeans favor rigorous judicial protection of certain individual rights -- especially private property and freedom of contract -- that define and protect the zone of sovereignty within which people are free to act as they please.... Lockeans say the Constitution circumscribes the majoritarian principle by protecting all rights that are crucial to individual sovereignty....  And, Barnett argues, a properly engaged judiciary bears the burden of saying when the government has not justified its restrictions as necessary and proper.

"So, Barnett says, yes, the Constitution — 'the law that governs those who govern us' — is libertarian. And a Lockean president would nominate justices who would capaciously define and vigorously defend, against abuses by majoritarian government, what the 14th Amendment calls Americans' 'privileges or immunities.'

"Republican presidential aspirants must be forced to join their party's argument about the judiciary's proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of 'judicial restraint' serves the progressives' Hobbesian project of building an ever-larger Leviathan.""

Read more: http://news.investors.com/ibd-editorials-on-the-right/102115-776739-george-f-will-constitutions-focus-on-securing-natural-rights-makes-it-libertarian.htm
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Is the U.S. Constitution a libertarian document?

“Is the Constitution Libertarian?” My Baxter Liberty Initiative Lecture on 10/6 - The Washington Post - Randy Barnett, the Volokh Conspiracy:

September 29, 2015 - "On Tuesday, October 6th, I will be giving the Baxter Liberty Initiative Lecture, sponsored by the Political Science Department of the University of California at Berkeley. The topic on which I was asked to speak is 'Is the Constitution Libertarian?'...  I just finished writing my lecture. Here is a portion of how it begins:

"Truth be told, libertarians have a love-hate relationship with the Constitution. On the one hand libertarians, like most Americans, revere the Constitution. Libertarians particularly appreciate its express guarantees of individual liberty and its mechanisms to preserve limited government. If being American is to subscribe to a creed, then the Constitution, along with the Declaration of Independence, are the foundational statements of this creed.

"But some libertarians have issues with the Constitution as well. And here I speak for myself, as well as others. There was a reason I eschewed writing about and teaching Constitutional Law when I became a law professor in favor of teaching Contracts. For, after taking Constitutional Law in law school, I considered the Constitution a noble, but largely failed experiment in limiting the powers of government. In my con law class, every time we got to one of the 'good parts' of the text that protected liberty, we turned the page to read a Supreme Court opinion explaining why that clause did not really mean what it appeared to mean....

"This fundamental failure of the Constitution to limit the size and scope of government has even led some libertarians to contend that the enactment of the Constitution represented a coup d’état by big government Federalists against the more preferable state-centered regime defined by the Articles of Confederation and favored by the Antifederalists.

"Yet many libertarians are genuinely torn, one might go so far as to say schizophrenic, about how the Constitution has actually worked out. Big and intrusive as government is today, it could be much worse. Few can point to other countries where individuals are freer in practice than in the U.S.... Libertarians still refer to the U.S. as a 'free country,' maybe still the freest on earth. That the Constitution deserves at least some of the credit for this freedom seems likely."

Read more: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/29/is-the-constitution-libertarian-my-baxter-liberty-initiative-lecture-on-106/
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Constitutional right to gay marriage, SCOTUS rules

Supreme Court Rules Same-Sex Marriage Is A Constitutional Right - Forbes - Daniel Fisher:

June 26, 2015 - "Same-sex marriage is a fundamental constitutional right guaranteed under the 14th Amendment, the U.S. Supreme Court ruled today, in a 5-4 decision that reflected Justice Anthony Kennedy’s individualistic, libertarian views and drew angry dissents from the rest of the court’s conservatives.

"Saying 'marriage is a keystone of our social order' and 'inherent in the concept of individual autonomy,' Kennedy’s opinion in Obergefell v. Hodges makes gay marriage the law of the land in every state. In so doing, the court went past even the arguments advanced by Solicitor General Donald Verrilli and some gay-rights advocates who urged the more modest approach of merely striking down bans on gay marriage under the Equal Protection Clause of the Constitution.

"In a 34-page opinion that was matched in length by dissents by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, Kennedy acknowledged that same-sex marriage is a relatively new concept, but said basic Constitutional notions of freedom mean 'same-sex couples may exercise the right to marry'....

"Kennedy’s decision, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, is surprising in its sweep, said William Eskridge, a constitutional law expert with Yale Law School who wrote a brief supporting same-sex marriage for the libertarian Cato Institute. The decision hews to Kennedy’s reasoning in Lawrence v. Texas, a 2003 decision striking down anti-sodomy laws as an unconstitutional intrusion into the private choices of individuals.

"'It is libertarian,' Eskridge told me. 'It’s like Lawrence. It’s the freedom for Americans to make choices regarding their relationships, their childrearing decisions, and to have those choices respected by the states the same as everybody else’s'...

"The decision raises some potentially uncomfortable questions, however, including whether religious institutions will be able to maintain their contrary views toward same-sex marriage, and whether states will also be forced to recognize polygamous marriages. After all, Roberts, wrote, the leap from two-person marriage to polygamy, in historical and cultural terms, is much smaller than the leap to same-sex marriage.

'"Although the majority randomly inserts the adjective "two" in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,' Roberts wrote.

"Kennedy voiced strong support for the First Amendment protection of religious beliefs and said no one is trying to denigrate them....

"Kennedy relied on a string of cases that struck down limits on marriage as violating the 14th Amendment and the Equal Protection Clause, most importantly, Loving v. Virginia. the 1967 decision striking down laws banning interracial marriages....

"While voters and the legislators they elect have the right to dictate policy, Kennedy wrote, that doesn’t mean they can enact laws that infringe on personal liberty, or that members of an oppressed minority must wait for protection of the laws. 'The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right,' he wrote."

Read more: http://www.forbes.com/sites/danielfisher/2015/06/26/supreme-court-rules-same-sex-marriage-is-a-constitutional-right/
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The long war for control of SCOTUS

Libertarians and Conservatives Battle Over the Supreme Court - Michael Greve, Wall Street Journal:

November 17, 2014 - "We have had wars over the direction of the Supreme Court — President Roosevelt’s 1937 court-packing plan or, more recently, the brutal fights over the judicial nominations of Robert Bork and Clarence Thomas . These partisan confrontations, however, are not what Damon Root has in mind in Overruled: The Long War for Control of the U.S. Supreme Court. His 'war' pits libertarians against conservatives. Libertarians, he says, want judicial 'action' and 'engagement.' Conservatives want 'restraint.'

"While legal historians may quarrel with the story here and there, the broader audience for which Overruled is intended will benefit from Mr. Root’s confident, competent telling. In particular, he powerfully illustrates that Holmes, Brandeis and Frankfurter—the most overrated justices in our history—had not the foggiest notion of the Constitution. To the extent that they comprehended it, they loathed it as inimical to their vision of government by experts.

"Mr. Root’s chronicle of these rival legal traditions sets the stage for the main parts of Overruled: its account of the conservative-libertarian debate of the past three decades and of litigation campaigns in which libertarian organizations have led the way. They include gun-control cases, spearheaded by the Cato Institute; the Kelo v. City of New London (2005) case, where the Institute for Justice argued (if unsuccessfully) that the 'taking' of private property requires a public purpose; the institute’s Lochner-style challenges to licensing requirements for hair braiders and casket makers; and the NFIB v. Sebelius (2012) litigation over the Affordable Care Act, where libertarian law professors played a central role. Mr. Root’s description of how those cases were conceptualized and litigated is fun stuff and informative even for insiders....

"Signally but obliquely, the author seems to recognize that the Supreme Court has also enhanced conservative-libertarian convergence in a different way.... Restraint-oriented conservatives never objected to freedom for hair braiders; rather, they worried that a libertarian-rights agenda might also entail abortion on demand (delicately omitted from Mr. Root’s 'landmark rulings') and gay marriage. Now that those battles have been fought and lost, conservatives might as well embrace the libertarian campaign for economic rights and an 'engaged' judiciary."

Read more: http://online.wsj.com/articles/book-review-overruled-by-damon-root-1416270073