A Stitch in Haste

Libertarians have been spending so much time recently debating whether there can really be such a thing as “left-libertarianism” that they may be forgetting to also ask whether there can really be such a thing as “right-libertarianism” —

Judicial conservatism requires judges to justify their decisions with reference to several restraining principles, including deference to the democratic branches of government and to states’ responsibilities under federalism.
…
It has been said that the most important word in the Supreme Court’s lexicon is not “liberty” or “equality” or even “justice,” it is “five.” But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side — the legislature.

That’s George Will talking about Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals, who was, in a past reality, a potential Supreme Court nominee and now has a law review article out critiquing claims of a contradiction when so-called “originalists” embrace the “expansive rights” reasoning of District v. Heller (regarding the Second Amendment) while condemning the same sort of “expansive rights” reasoning in Roe v. Wade (regarding abortion specifically and privacy generally).

Funny thing is, I was taught in law school that a “tie” (i.e., between equally viable interpretations of a criminal law) goes to the defendant — it’s called the lenity doctrine. Why should that foundational principle of criminal law not also apply to constitutional interpretation? A “constitutional lenity doctrine” — a tie goes to liberty. Would that really be so abhorrent a rule for conservatives? If so, why?

Of course, we already have a “constitutional lenity doctrine” in the form of the Ninth Amendment. And yet it is precisely the Ninth Amendment that is inevitably jettisoned whenever a “judicial conservative” undertakes the task of constitutional interpretation — which they somehow call “originalism” (or “inkblot” — apparently the same thing).

More gobbledygook (from Wilkinson, not Will):

When rights are unambiguously enumerated, courts should protect them vigorously. But Wilkinson says that when a right’s definition is debatable, generous judicial deference should be accorded to legislative judgments — particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.

Again, apart from the pesky fact that “ambiguously unenumerated” rights are themselves “unambiguously enumerated” in the Ninth Amendment, restraint in the face of the infringement of individual rights by state or local governments is, to borrow a line from another conservative, no virtue. Dressing up such violations of equal protection and due process as “laboratories for testing policy variations” is the last refuge of scoundrels (actually it also tends to be the first refuge and a bunch of refuges in the middle — see generally, “Ron Paul is not a libertarian“).

As for George Will, he leaves himself an escape route:

Many libertarian conservatives disagree, arguing that the protection of individual liberty requires robust judicial circumscription of democracy. So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

Somehow I suspect that married gay couples in California would choose a word other than “interesting.” Go figure.

Previously:
–Can the Second Amendment Revive the Ninth and Fourteenth?
–The Ninth Amendment Case Against Libertarianism?
–What Part of “Unenumerated” Is Unclear?

Filed under: Constitutional Issues, Law, Libertarianism