Orange County Register: Why not a libertarian?

[question everything]

Tuesday, July 5, 2005

Why not a libertarian?
A justice who believes in limits to government power is just what we need

By BRIAN DOHERTY
Reason Foundation senior editor

(snip)

O'Connor morphed this past court term from usually reliable winning swing vote to impassioned dissenter. She bravely stood up against the court majority for American citizens' rights to keep their homes and property, even when local governments want to snatch it for the benefit of private developers, in the Kelo case. She also thinks we should be allowed to make our own decisions on the state level regarding medical marijuana, as in her Raich dissent.

(snip)

In his announcement upon O'Connor's retirement, President Bush said he'd be looking to replace her with someone with "a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country." Instead of "interpret," he might fruitfully consider going for someone who will "apply" the Constitution - especially its stated limits on government power - intelligently. Bush should seek a justice unafraid to be an "activist" in the preservation of the Constitution, one with no fear of political constituencies of either left or right who rely on a government that can do whatever it wants, for whatever reason it wants.

A good libertarian legal thinker understands that when courts decide whether a government action is constitutional, they need to do more than just check whether it violates an explicitly stated right in the Bill of Rights. They need to notice the Ninth Amendment. It is too often forgotten, and is utterly central to the entire vision of government that America was created to further. It states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, our rights to be free of government interference don't stop with the list contained in the first eight amendments of the Bill of Rights.

(snip)

Where could President Bush look for this kind of potential justice, who could be trusted to act on a proper American vision of limited government power? My personal favorite is the just-quoted law professor and former prosecutor Randy Barnett, who argued the Raich medical marijuana case before the Supreme Court. Barnett notes that most Supreme Court opinions have historically "either stretched clauses beyond their original meaning to authorize governmental power or interpreted textual barriers out of existence." He could be counted on not to follow that liberty-dissolving trend.

(snip)

http://www.ocregister.com/ocr/2005/07/09/sections/commentary/article_582274.php

[iconoclastic cat]

1. To all Libertarians: If you help oust the fascists, I'll never flame you.

I'll never, ever accuse you of anything without tangible evidence. I'll never refer to you using hyperbolic mischaracterizations or slander. I'll never misquote or take your words out of context. Just keep talking sense (even if I don't always agree), and help keep this country from diving into total corporate rule.

Please?

Whattya say?

[Mythsaje]

2. I'd go for that...

we could use someone who's inherently anti-authoritarian on the SC. It would be a refreshing change.

[noahmijo]

3. Libertarians and Greens were the first as whole parties to protest war

in Iraq. In my much younger days I identified myself as a Libertarian, however today when it comes to economic issues I strongly disagree. However when it comes to social issues I think Libertarians can drink with most of us here. Being that the Supreme Court mostly affects our national policies on social issues I'd have no problem with seeing a Libertarian judge.

[question everything]

4. Indeed. It is the libertarians who are appalled by the changes of the GOP

that used to for small government but now, when they have the power, they expand government - and the deficit - beyond what any Democrat has ever done.

And I agree with you that the libertarians' "live and let live" fits with most of us here.

The only disagreement would be about the ability and responsibility of a government to do good, yet it has not done much recently.