Posted by David Bernstein:
Rosen Channeling Schwartz:
Back in March 1987, Prof. Herman Schwartz wrote an article for The
Nation that bears striking resemblance to Rosen's N.Y. Times piece (to
be clear, I'm not accusing Rosen of plagiarism, or even of ever having
read Schwartz's article; it's just that 1987 seems like a time of
similar hysteria over perceived libertarian influence on conservative
judicial thought prompted, as in 1987, by a forthcoming vacancy on the
Court, and by the nomination of a libertarian (Bernard Siegan instead
of Janice Brown) to a Court of Appeals seat. Of course, Siegan got
voted down, and the next USSC nominee was the very unlibertarian
Robert Bork):
A new breed of theorists is calling for vigorous judicial activism
in defense of--what else?--property rights. Concurrently, the
pre-New Deal Supreme Court, which struck down federal and state
laws against union busting, child labor and other abusive business
practices, is back in favor. . . . This neo neoconservatism has
been most thoroughly developed by University of Chicago Law
professor Richard Epstein, one of the administration's most
influential legal advisers. . . Epstein argues that those clauses
of the Constitution that forbid the government to take over private
property except for public use and wit fair compensation, and that
bar the states from excessive interference with contracts, where
intended to ensure that private property remained virtually
sacrosanct. He then reads those clauses as rendering
unconstitutional most welfare, environmental, is stating gift tax,
renewal, zoning and then control laws, along with almost every
other piece of social legislation of the past two centuries. Unlike
most constitutional lawyers, he thinks the Court decided correctly
in Lochner v. New York, when, in the name of property and contract
rights, it struck down an attempt to limit working hours for
bakers. . . . Such judicial activism is usually condemned in the
administration circles. . . . Nevertheless, this new faith in an
activist judiciary is gaining ground among some on the right who
are normally its harshest critics.
Schwartz's concerns about a libertarian takeover of the federal
judiciary were, alas, seriously premature, as are, undoubtedly,
Rosen's. In fact, though libertarians are a growing presence in legal
academia, their political influence has probably decreased where it
counts. Republican honchos are more concerned than ever about their
religious conservative base, and the relevant folks in the Justice
Department--who in the Reagan years were a highly intellectual group
that took ideas, including libertarian ideas very seriously--are
undoubtedly very bright, committed conservative lawyers, show, as far
as I can tell, few signs of similar intellectual ferment (in practical
terms, e.g., other than McConnell, where are the Borks, Winters,
Easterbrooks, Ginsburgs, Williamses, and Posners on the judicial
nomination radar screen?)
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