Libertarian Judicial Activism

I note this blog post by Lew Rockwell regarding the Federal Judicial overturning of Prop 8 in California. Rockwell, however, fails to mention that it was exactly a local city, in this case San Francisco, enacting their own marriage definition that prompted conservative and evangelical organizations to mobilize a statewide ballot initiative to override the laws of the local jurisdiction. However, by doing so, they invited a challenge by an opposing organization group(headed up by David Boies and Ted Olson) in Federal Court. And then the conservatives ran up against the wrong “activist judge.”

However, in doing a bit of research of Judge Vaughan Walker, it’s evident that the conservatives didn’t run up against a progressive, communitarian activist judge. Rather, they ran up against a so-called “libertarian” activist judge. Indeed, Walker meets the criterion of “libertarian judicial activism” that the likes of Damon Root keep crowing about. Walker, a GOP appointee, was opposed by the typical progressive/liberal special interest groups, and is noted to apply an “economic analysis” to law while holding socially libertarian views, including, for example, drug legalization. Walker’s decision is an example of the very thing Damon Root wrote about in a recent Reason Magazine cover story.

A recent column in the Atlantic, written, however, before the decision, documents how it is actually the rulings of GOP-appointed federal judges who are more or less “saving” gay marriage. The writer was a bit baffled by this. However, if you are familiar with libertarian-conservative fusionism, it’s not all that particularly baffling. Root does a good job documenting why this shouldn’t be baffling in his Reason cover piece. Let’s just say that the conservative dominance in populating the federal judiciary has nonetheless resulted in a peppering of the federal judiciary with justices who are not in accord with the so-called conservative aversion to “judicial activism.”

If we look at the Boies-Olson argument in court, it’s fairly clear that they were not making a communitarian argument; rather they were making more of a libertarian argument based around a “harm principle.” That is, gay marriage poses no social harm. In particular, they really made it a point to eviscerate the social conservative claim of “what about the children.” Walker, in his decision, gave great weight to the harm principle, but because constitutional law is not constructed on libertarian justice, he more or less manufactured a decision around the “equal protection” clause of the 14th amendment. This has lead to conservative legal scholars to criticize the legal logic behind the decision. Well, the rule of law is a myth to begin with, so tell me something else that’s new.

When Rockwell writes “the heterophobes want to outlaw Church discrimination,” he is just repeating Christian fundamentalist propaganda. The social conservatives have no interest in marriage being a private contract. They believe marriage carries a “judgement from God” and that what “Adam and Steve” decide to do in San Francisco will bear a judgment of God on the entire nation. They very much want to “nationalize” marriage. Conservatives, as well as progressives, want an all powerful federal government(executive and legislative) in many respects. To be babbling about the abolition of the federal judiciary in this context is absurd. Frankly, it’s historically absurd as well. The constitution, other than the first 10 amendments, is a conservative document, one that is intended to create a strong central government. Without a federal judiciary there is absolutely no check on federal power. If we want to be radical libertarians then let’s be radical libertarians. But let us then dispense with this nonsense of talking up the constitution in the same breath with some notion of conservative judicial restraint.