Month: June 2005

Rights and the State

For reasons detailed here, I deny that rights are innate to humans. Rights may arise from urges that are innate to humans, but a person possesses rights only to the extent that those rights are enforced or enforceable through self-defense, common consent, or state power.

Moreover, not all rights comport with liberty, which is the right to be left alone in return for leaving others alone. For liberty conflicts with the contrary desire to control others. That desire arises from instincts that are just as deeply seated in humans as the yearning for liberty — aggressiveness, avarice, envy, fear, mistrust, and sloth, for example.

Absent coercion, the conflicting desires for liberty and for control are reconciled through political bargaining. The term “political bargaining” does not connote the creation of a state or the use of state power to strike a balance between liberty and control. For politics is “the process and method of decision-making for groups of human beings [which is] observed in all human group interactions.” Each party to a political bargain acquires certain rights, that is, claims on the other parties to the bargain, which the other parties acknowledge and for which they receive reciprocal claims of one kind or another.

Political bargaining becomes more complex as a group’s numbers grow. Factions arise, with each faction preferring a package of rights that differs from the packages preferred by other factions. If the resulting centrifugal force is not great enough to cause the group to splinter, a shifting coalition of factions will dominate the group’s decision process. And from that shifting coalition will emerge a shifting package of rights.

As long as the then-dominant coalition operates through persuasion and without resort to force or the threat of force — and as long as no member of the group is compelled to remain in the group — the resulting package of rights is consensual. Each member of the group, by remaining a member of the group, effectively agrees to accept certain rights (e.g., mutual defense) as compensation for the loss or diminution of other rights (e.g., a reduction of personal autonomy because of the demands of mutual defense).

At some point, however, a state arises,

  • as the outcome of a struggle between competing coalitions, in which the coalitions resort to force to settle their differences,
  • as an antidote to violent anarchy, or
  • because the then-dominant coalition seeks to perpetuate its particular conception of rights.

Rights then lose their consensual basis; instead, they are determined by the coalition that controls the state’s decision process, which is backed by superior force. That coalition — not the community as a whole — decides the package of rights and the distribution of the cost of securing those rights. Members of the group may opt out only by leaving the geographic territory controlled by the state, that is, by leaving their homes, their jobs, and their friends and relatives.

The state may lack sufficient power to force all of its subjects to adhere to its dictates, but the state’s ability to discipline blatant violations of official norms keeps most of its subjects in line. Some small groups (e.g., polygamous communes) may form for the purpose of evading state control and adopting group-specific packages of rights to which their members give common consent. But the state, in an effort to deter such rebelliousness and to maintain its dominance, seeks to suppress or destroy such groups whenever they gain notoriety.

The state could create and enforce a package of rights that is biased toward liberty — if the proper coalition controls the state’s decision process. That is what happened in the American experience, for a time. But that time has passed, as the package of rights envisioned by the Founders and enshrined by the Framers has been discarded by power-seeking politicians who have pandered to avarice, envy, fear, mistrust, and sloth.

Would we be better off with anarchy? Only as long as it is non-violent and fosters consensual decision-making. But, given human nature, anarchy leads to violence and violence leads to the creation of a state.

The choice then, is not between anarchy and the state, but between a minimal state that is disposed toward liberty and a state that is more or less disposed toward control. History and current events suggest that a repetition of the American experience would be nothing more than temporary good luck.

"Giving Back to the Community"…

…rankles every time I read or hear it. Generally, a person whose income isn’t derived from tax dollars already has “given back” by providing goods and services that are valued by the persons who receive and pay for those goods and services.

It’s another story if a person works for a tax-supported institution, as did I for 30 years…

In the latter years of my employment at a defense think-tank, our CEO established a “community service” program so that we well-paid, mostly white, professionals could “give back to the community.” The “community” to which we gave “service” was not well-paid, mostly white, or professional, of course.

I am confident that the targets of our beneficence paid only a minuscule fraction of the taxes that funded our nicely appointed offices, high salaries, and generous benefits. “Giving back” to the “community” that actually supported us would have involved mowing lawns, tutoring, and babysitting for mostly white, middle- and upper-income Americans in other parts of the D.C. area than the one selected by our CEO as the “community” to which we would “give back.”

If the services we provided in exchange for our splendid offices, salaries, and benefits had been worth what taxpayers were paying for them, there would have been no need for us to “give back” to any community. Taxpayers would have received their money’s worth, and that would have been that.

Our CEO either felt guilty about his huge office, high salary, and princely benefits or he thought that our think-tank wasn’t giving taxpayers fair value for their money. As he would have been the last person in the United States to admit that we weren’t delivering fair value, I can only conclude that his yearning to “give back” to the community arose from feelings of guilt, which he projected onto his employees. For, even as he was pressing us to “give back,” he constantly sought to justify the spending of more tax dollars on better accommodations and higher compensation for himself and the rest of us.

Feelings of guilt aren’t confined to those who feed at the public trough, of course. CEOs and senior executives of large corporations have a good thing going for themselves — which they owe to their chummy relations with boards of directors — and they know it. Thus the impetus for private-sector “giving back.”

In summary, “giving back to the community” is either an unnecessary act — because “the community” already has received fair value for its money — or it is emblematic of guilt. In the first instance, “giving back” is really an act of charity. In the second instance, “giving back” is really a false act of contrition and an inadequate, misdirected form of compensation for executive avarice.

"Thinking" vs. "Feeling"

Arnold Kling, in n a recent Tech Central Station column, posits a correlation between libertarianism and the “thinking” aspect of personality:

In my experience, libertarians and collectivists often talk past one another. Libertarians believe that collectivists are not thinking, while collectivists believe that libertarians are not feeling.

There’s a lot to that. But a post by Alex Tabarrok at Marginal Revolution reminds me of my “feeling” side:

Here is a new interview with Milton Friedman. I liked this from the introduction:

San Francisco seems an unlikely home for the man who in 1962 first proposed the privatization of Social Security.

Asked why he dwells in liberalism’s den, Milton Friedman, 92, the Nobel laureate economist and father of modern conservatism, didn’t skip a beat.

“Not much competition here,” he quipped.

How does that remind me of my “feeling” side? Friedman’s quip is obviously just that, a quip. Friedman probably could live anywhere he wants to live. Why San Francisco, then? Why not? It has more than Lefties; it has “culture” — universities, museums, and the arts (of all kinds).

In fact, one tends to find “culture” where one finds a lot of Lefties. Moreover, many Lefties are actually nice people, as long as they can avoid talking about George W. Bush, a topic that seems to bring out the worst in their natures.

So, when I want to be a “feeling” person I hang out with Lefties and engage in pursuits that are more typical of Lefties than Righties. To tell the truth, with a few exceptions I avoid the company of Righties because I don’t share their tastes in music (the Nashville sound), sports (NASCAR), and media personalities (Limbaugh, O’Reilly, and Hannity), among other things.

Well, that’s enough “feeling” for today.

The Consequences of Roe v. Wade

From a post at Right Reason by Francis Beckwith (paragraph break and emphasis added by me):

A 1997 article in The New Republic, a magazine whose editorial position is generally supportive of abortion-choice, cites the work of Ruth Padawer, a staff writer for the local Bergen County, New Jersey, newspaper, The Record: “she called local clinics, asked how many [partial-birth abortions] they performed, did some math and wrote up her conclusions: `Interviews with physicians who use the method reveal that in New Jersey alone, at least 1,500 partial-birth abortions are performed each year, three times the supposed national rate. Moreover, doctors say only a minuscule amount are for medical reasons.'” (William Powers, “Partial Truths,” The New Republic [March 24, 1997]: 19)

Dr. Hakell’s practice and Ms. Padawer’s story were confirmed by a stunning confession by Ron Fitzsimmons, then-executive director of the National Coalition of Abortion Providers. Since 1995, when the debate over partial-birth abortion began, Fitzsimmons and his abortion-choice colleagues had claimed that partial-birth abortion was extremely rare (about 450 per year) and performed only in late-term pregnancy for serious reasons such as severe fetal deformity and to save the life of the mother. In 1997, Fitzsimmons, on an episode of ABC News’ “Nightline” admitted, in an answer to Ted Koppel’s question, “[W]hat were you lying through you teeth about?,”: “When I said that the procedures were performed only in about 450 cases and only in those severe circumstances. That was not accurate. But we have no apologies for this procedure.” (Ibid) According to The New Republic’s account, “Fitzsimmons tried, several times, to tell Koppel that, in fact, 3,000 to 5,000 partial-birth abortions were performed every year on fetuses twenty weeks or older; and, of course, only 500 to 750 were performed for reasons of maternal health in the third trimester.” (Ibid) Fitzsimmons told the New York Times that “in the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along” and is “performed far more often than his colleagues have acknowledged.” (David Stout, “An Abortion Rights Advocate Says He Lied About Procedure,” New York Times [February 26, 1997]: A11)

A perfect illustration of the slippery slope down which Roe v. Wade has led us. For more about the dangers of state-sponsored eugenics, read this and follow the links.

Raich and the Rule of Law

Outrage abounds in liberal and libertarian circles as the U.S. Supreme Court decides Gozales v. Raich thusly:

California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions. The District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit reversed, finding that they had demonstrated a strong likelihood of success on the claim that the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law. The court relied heavily on United States v. Lopez, 514 U. S. 549, and United States v. Morrison, 529 U. S. 598, to hold that this separate class of purely local activities was beyond the reach of federal power.

Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law….

Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U. S. 146, 151. If Congress decides that the ” ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class….Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127-128, where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity….

[I]n both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for the Court has often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez, 402 U. S., at 154. Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had nothing to do with “commerce” or any sort of economic enterprise. See Lopez, 514 U. S., at 561; Morrison, 529 U. S., at 610. In contrast, the CSA regulates quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product. The Ninth Circuit cast doubt on the CSA’s constitutionality by isolating a distinct class of activities that it held to be beyond the reach of federal power: the intrastate, noncommercial cultivation, possession, and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law. However, Congress clearly acted rationally in determining that this subdivided class of activities is an essential part of the larger regulatory scheme. The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA’s findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim….

Justice Thomas, in a strong dissent, gives the majority a lesson in constitutional law:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers….

As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines…. The Clause’s text, structure, and history all indicate that, at the time of the founding, the term ” ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.”…Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture….Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange….The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public….

Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States.”…Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California–it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

On this traditional understanding of “commerce,” the Controlled Substances Act (CSA)…regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market–intrastate or interstate, noncommercial or commercial–for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.

More difficult, however, is whether the CSA is a valid exercise of Congress’ power to enact laws that are “necessary and proper for carrying into Execution” its power to regulate interstate commerce….

In McCulloch v. Maryland,…this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”…

The Commerce Clause was meant to prevent the States from restricting or distorting the terms of trade across their borders. The Commerce Clause was not meant to give the central government the power to dictate what goods may be manufactured, how those goods should be made, or how businesses must be operated. Yet, in a long string of decisions leading up to Raich, the Supreme Court had granted those sweeping powers to the central government.*

Now, with its decision in Raich, the Supreme Court has handed the central government the power to regulate anything it wants to regulate — period. Congress can drop the pretense that it is regulating interstate commerce and simply tell us how to live our lives. As Justice Thomas puts it in his dissent, “the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.” Justice Thomas continues:

This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

A mockery wrapped in a travesty inside a tragedy.
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* For an analysis of Raich and its precedents, see this post by Lawrence Solum (Legal Theory Blog). Solum concludes by saying this:

It looks like Raich is a landmark decision that signals the end of the New Federalism [of Lopez and Morrison] as a significant limit on the powers of Congress.

Tragic, but true.

Much Food for Thought

Tyler Cowen of Marginal Revolution points to a paper by Harvard economist Roland G. Fryer Jr. and graduate student Paul Torelli, “An Empirical Analysis of ‘Acting White’.” The Washington Post‘s Richard Morin summarizes:

As commonly understood, acting white is a pejorative term used to describe black students who engage in behaviors viewed as characteristic of whites, such as making good grades, reading books or having an interest in the fine arts.

The phenomenon is one reason some social thinkers give to help explain at least a portion of the persistent black-white achievement gap in school and in later life. Popularity-conscious young blacks, afraid of being seen as acting white, steer clear of behaviors that could pay dividends in the future, including doing well in school, Fryer said. At the same time, the desire to be popular pushes many whites to excel in the classroom, enhancing their future prospects….

Among white teens, Fryer and Torelli found that better grades equaled greater popularity, with straight-A students having far more same-race friends than those who were B students, who in turn had more friends than C or D students. But among blacks and especially Hispanics who attend public schools with a mix of racial and ethnic groups, that pattern was reversed: The best and brightest academically were significantly less popular than classmates of their race or ethnic group with lower grade point averages [emphasis mine: ED].

“For blacks, higher achievement is associated with modestly higher popularity until a grade point average of 3.5 [a B+ average], then the slope turns negative,” Fryer and Torelli wrote in a new working paper published by the National Bureau of Economic Research. A black student who’s gotten all A’s has, on average, 1.5 fewer same-race friends than a straight-A white student. Among Hispanics, there is little change in popularity until a student’s average rises above a C+, at which point it plummets. A Hispanic student with all A’s is the least popular of all Hispanic students, and has three fewer friends than a typical white student with a 4.0 grade point average….

They also found that more blacks “acted white” [i.e., denigrated scholarly achievement: ED] in schools where less than 20 percent of the students were African American, while hardly any did in predominantly black schools or in private schools. “These findings suggest the achievement gap is not about cultural dysfunctionality,” Fryer said, and that contrary to conventional wisdom, the phenomenon may be more prevalent among blacks living in the more affluent suburbs than among those living in the inner city. (There were no majority-Hispanic schools in the study.)

Why is “acting white” absent in mostly black schools?

That’s easy, said Fryer, who is African American. He recalled his own experience growing up and attending predominantly black schools in Daytona Beach, Fla., and Dallas. “We didn’t act white — we didn’t know what that was,” he said, stressing that he prefers data to anecdote. “There were no white kids around.”

Now we turn to Randall Parker, writing at FuturePundit, who links to and discusses “Natural History of Ashkenazi Intelligence,” by three researchers at the University of Utah, anthropologist Henry Harpending, Gregory Cochran (a Ph.D. physicist turned genetic theorist), and Jason Hardy. Parker’s take:

Ashkenazi Jews pose two mysteries for biological science. First, why do they have so many genetic diseases that fall into just a few categories of metabolic function….The second mystery is why are Jews so smart?…

Nicholas Wade of the New York Times has written one of the two news stories about [the University of Utah paper] to date. The proposed hypothesis holds that Jews developed their genetic diseases as a side effect of strong selective pressures for higher intelligence during the Middle Ages as they were forced to work mainly in occupations that required greater cognitive ability.…

A team of scientists at the University of Utah has proposed that the unusual pattern of genetic diseases seen among Jews of central or northern European origin, or Ashkenazim, is the result of natural selection for enhanced intellectual ability.

The selective force was the restriction of Ashkenazim in medieval Europe to occupations that required more than usual mental agility, the researchers say in a paper that has been accepted by the Journal of Biosocial Science, published by Cambridge University Press in England.

The Economist has the other article about this research paper. The distribution of the Jewish genetic diseases is clustered too much into a few areas of genetic functionality This concentration of mutations argues for selective pressures as the logical expanation for rate of occurrence of these mutations in Ashkenazi Jews.

What can, however, be shown from the historical records is that European Jews at the top of their professions in the Middle Ages raised more children to adulthood than those at the bottom. Of course, that was true of successful gentiles as well. But in the Middle Ages, success in Christian society tended to be violently aristocratic (warfare and land), rather than peacefully meritocratic (banking and trade).

Put these two things together—a correlation of intelligence and success, and a correlation of success and fecundity—and you have circumstances that favour the spread of genes that enhance intelligence. The questions are, do such genes exist, and what are they if they do? Dr Cochran thinks they do exist, and that they are exactly the genes that cause the inherited diseases which afflict Ashkenazi society.

Cochran, Harpending, and Hardy claim higher intelligence increased reproductive fitness for Jews in medieval Europe who were legally prevented from performing in occupations that had lower need for intelligence. Simultaneously Jews were allowed to work in more cognitively demanding occupations involving money handling even as the Catholic Church banned Christians from many of those same occupations….

If this hypothesis is correct (and I believe it is) then it is problematic for efforts to raise human intelligence. How many of the intelligence raising genetic variants bring undesirable side effects? Some scientists speculate that assortive mating of high IQ people is contributing to a rising incidence of autism and Asperger’s Syndrome. As smart people become more likely to breed with other smart people the odds increase that pairs of autosomal recessives or other problematic combinations of intelligence boosting genes will given to offspring….

Step back and look at Jewish and European history from the context of this hypothesis. A few things come to mind. First off, Middle Ages bans on Christian money lending created an environmental niche in which high IQ was selected for in Jews. This led to a few important historical consequences. First off, it led to financial and reproductive success of urban Jews and hence resentment against them by both elites and masses in Europe. This resentment of course led to pogroms and Hitler’s “Final Solution”. There’s an old Japanese saying that comes to mind: “The nail that sticks up gets hammered down”. Well, smart Jews stood out and the response of jealousy and resentment against the more successful “other” is a recurring theme in human history….

The bottom line:

  • The second paper adds to the body of evidence that intelligence is strongly determined by genetic inheritance and, therefore, highly correlated with race.
  • Both papers underscore the destructive potential of envy. The less able — who too often seek the social, economic, and even corporal abasement of the more able — do so at their own expense. For it is the accomplishments of the more able that, by and large, fuel economic growth. And economic growth benefits the less able as well as the more able.

Trade Deficit Hysteria, Redux

Many bloggers have been pointing to Walter Williams’s fine dissection of trade deficit hysteria. I said it, in many fewer words, back on May 14, 2004:

Trade deficit hysteria is a psychological illness closely related to budget deficit hysteria (see Wednesday, April 21, 2004). Why do people (e.g., CNN’s Lou Dobbs) get all excited when the value of U.S. imports exceeds the value of U.S. exports? They think we’re shipping “our” money overseas.

Wrong. When the value of U.S. imports exceeds the value of U.S. exports, it means that we’re able to buy more things than we could in the absence of foreign trade.

But where does “our” money (the deficit) go? Well, our deficit is a surplus to foreigners. Guess what they do with their surplus. They invest it in U.S. Treasury bonds, the U.S. stock market, and U.S. real estate. That’s more good news for Americans.

So, if you’re suffering from trade deficit hysteria, calm down and quit watching CNN.

The Wrong Case for Judicial Review

I have defended judicial review, albeit reluctantly, on several occasions.* But I have never defended judicial review as a way to make law, which is the ground on which Erwin Chemerinsky stands in the current debate at the Legal Affairs Debate Club: Should We Get Rid of Judicial Review? For example, in one posting Chemerinsky responds to his opponent, Mark Tushnet, as follows:

I do have substantive value preferences. These include that the Supreme Court was right in ordering desegregation and striking down Jim Crow laws, in protecting reproductive privacy including abortion rights, in finding a right to privacy for consenting adults in their bedroom.

The catch is that the Supreme Court’s decisions ordering desegregation (Brown v. Board of Education), legalizing abortion (Roe v. Wade), and finding various zones of privacy (e.g., a right to buy contraceptives in Griswold v. Connecticut; a right to commit homosexual acts in Lawrence v. Texas) were based on extra-legal, sociological flim-flam and tortured readings of the Constitution. Why? Because the majority in each case wanted to make law, not apply the Constitution.

You may like the outcomes in Brown v. Board of Education, Roe v. Wade, Griswold v. Connecticut, and Lawrence v. Texas. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that.

More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Chemerinsky’s defense of judicial review is opportunistic. He wants a Court that will make his kind of law, not a court that will apply the meaning of the Constitution to the law. We need judicial review to hold legislatures and executives in check, but it must be judicial review that is grounded in the meaning of the Constitution. As I argued here:

Something resembling [liberty] will come about only if a Republican president, aided by a strongly Republican Senate, is able to stock the courts with judges who are committed to the restraint of government power — at all levels of government. (Janice Rogers Brown is that kind of judge.)

Certainly not all decisions by all Republican appointees to the bench will satisfy all libertarians, many of whom seem to focus on narrowly tailored “rights,” such as abortion and gay marriage (both of which are in fact threats to liberty, as I argue here and here). But by siding with the Left on such issues, libertarians effectively abjure more basic rights — rights that broadly affect the ability of most Americans to pursue happiness — such as freedom of speech, freedom of association, and freedom of contract.

In the real world there are real choices. The real choice for libertarians is between what seems “best” for a few and what is actually “better” for the many. I choose the latter, without hesitation.

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* Links to my previous posts about judicial review:

When Must the Executive Enforce the Law?

More on the Debate about Judicial Supremacy

Another Look at Judicial Supremacy

Judicial Interpretation

Is Nullification the Answer to Judicial Supremacy?

The Alternative to Nullification

No Way Out?