Just some random thoughts here. I'm not sure how much I actually believe all I wrote. But I might. Or not.Maybe it began when I reconsidered my position and concluded that although I hate guns and as a matter of policy think they should be banned completely or their ownership severely restricted, the Second Amendment contained an individual right to bear arms. Maybe it was later, when although my hatred of guns and view of wise public policy remained as they were, I thought some more about it and determined that the purpose of the Second Amendment right had nothing to do with self-defense against bad guys or wild animals or for hunting for food or sport (and what follows, which is that insofar as the right is demanded for those purposes it can be severely limited without offending the Constitution). Rather, the purpose was to ensure that the people have the means of effecting violent revolution against the government. (There are consequences to that conclusion about which I haven't yet satisfied myself.)
Or maybe it was when I looked in vain for the constitutional underpinnings of the administrative state. Or first noticed that the Commerce Clause does not seem to say that anything that can be thought to have some marginal relationship to interstate commerce falls within the ambit of the Constitution's delegation of authority to Congress
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
And if the Necessary and Proper Clause really permits Congress to do pretty much whatever it wants, then we haven't just abandoned the idea of a government of enumerated powers but we've abandoned the idea of the Rule of Law (uppercase intentional) because there would be no limit.
Or maybe it was when I acknowledged that ohmygodScalia'sright that a living Constitution does mean that the Constitution is this week whatever 5 members of the Court happen to think it means, and will mean something different whenever the composition of the Court (or the views of a sufficient number of members) changes. (Of course, the same is true for Scalia's preferred Constitution - an embalmed one - since it, too, will be subject to constant reinterpretation as the courts and the Court try to figure out what it means, but that's not my issue today.)
Or maybe it was just when I finally admitted to myself that if you believe in the Constitution as the fundamental law of the land, whether you like all its terms or not, then you have to accept as fundamental the parts you don't like just as much as you have to accept the parts you do.
And so I find myself (and this isn't particularly new, it's just that I'm using it as the set-up here) a civil libertarian who more often than many who so define themselves tends toward the libertarian.
That requires some clarification, I think.
Libertarians (and yes, I know I'm oversimplifying to the point where I'm approaching, but I don't think reaching, misrepresentation) tend to be political conservatives. They believe not merely in limited government but in small government. They have a commitment to the free market as not only constitutionally endorsed but as a good thing in and of itself. If pressed, they'd say that the most important provisions of the Bill of Rights are the 2nd, 4th (and maybe 9th and 10th Amendments). At the distant margins, they expect any day that the administration will admit it's but a stalking horse for world domination by the UN, which itself will be run by some conglomerated version of state socialism on the line of Stalinist Russia except intent on ethnic cleansing of white folk.
Civil libertarians (to oversimplify with the same reach) tend to be liberals. They believe in government, big government in fact, but think there are a few areas in which the government ought not meddle. They're not terribly fond of the free market, think that government should regulate the hell out of it. If pressed, they'd point to the 1st (though perhaps not the Free Exercise Clause), along with the 14th (and also maybe the 9th and 10th) as the most important of the Amendments. At the distant margins, they really do think that the administration is a stalking horse for a resurgent Nazi party intent on ethnic cleansing of non-white folk.
Drop the distant margins people (there are nuts everywhere after all) and you find that there are real differences but also serious points of contact between libertarians and civil libertarians.
Again, this is all preface. I'm a fan of government. I'm an opponent of the administrative state. (Those don't strike me as contradictory positiions.) I don't want the government telling me (or anyone else) what to think or what to do with our bodies. I have policy, political, and also constitutional questions about the government's handouts to the financial services industry and to GM and Chrysler, though I'm bothered less by the latter than the former. I'm no enthusiast of the free market and I don't think the Constitution mandates it, though it certainly puts some limits on government regulation. I'm a free speech absolutist. Enough. The details don't really matter here.
What got me rolling on this, are Rand Paul's comments on the Civil Rights Act of 1964, Volokh Conspirator David Bernstein's response/attack to "Bruce Bartlett's Attack on Libertarianism," and David Rittger's piece at the Cato@Liberty blog warning that US v. Comstock provides a blueprint for efforts to deny Constitutional protections to those suspected of being terrorists (he's not the first to discuss it).
And what I found myself thinking was two things. First, I'm in complete agreement with what Rittger has to say. Second, while I find Bernstein's discussion interesting and informative, I really can't get past his claim (essentially one Rand Paul couldn't quite bring himself to state, but then he's running for office now statewide, not just within a political party) that
Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains.
I wasn't brought up short by the claim that most libertarians believe that private discrimination should be legal. I was brought up short by the idea that it's something of a mainstream belief (insofar as the libertarian perspective can be considered mainstream, and I think that with an even moderately broad definition of "mainstream," it can.
Anyway, so what I tried to do, because I'm finding more and more that I really don't trust the idea of government to do much of anything, is figure out where the rub is between me and libertarian thought (as Bernstein presents it, anyhow) on private discrimination. And what it came to is that I'm no fan of free markets. My objection isn't to the idea that the owner of a business ought to have some right to decide how the business works. It's that when I look at the free market, what I see isn't the mom and pop grocery. What I see is Wal-Mart and Best Buy and Barnes & Noble and Amazon driving the independent (i.e., mom & pop) out of business.
And while I'm offended if mom & pop want to discriminate (which they too often do/did), I guess I see that mostly as a personal choice that they can sometimes be coerced out of by concerted action (boycots, sit-ins, general suasion) although sometimes not, but gee, that's mom & pop. And that's how they want to run their business, and as long as they don't have monopoly power or jim crow laws backing them, I guess that's their business.
But that's mom & pop.
I'm no economist, but you don't have to be to notice that big business drives out small and that Adam Smith's world wasn't exactly a bagatelle for the laborers. But that's sort of a side question.
One of the commenters on Bernstein's piece complained about the libertarian fetish over property rights. Bernstein responded without actually addressing the point, but it's all connected and deserved more of an answer than he offered. Because if you want government to stay out of private business, you're either saying that the free market is a good thing in absolute terms or that you don't really care whether it's a good thing - government meddling is a bad thing. And tI suppose that's an intellectually defensible position, but I don't see it. And more to the point, I don't see the Constitution obliging it unless the only thing that "[t]o regulate Commerce . . . among the several States means" is that states can't impose tariffs on goods from other states without federal approval. To put that another way, unless the Commerce Clause is understood to be only the Dormant Commerce Clause, which is really an inferred Clause rather than an enumerated one, the Constitution may limit what government can do about private enterprise and free markets (though I think the Civil War Amendments really do say something about discrimination), but it simply doesn't strip government of authority.
Although how you get authorization for the EEOC, the NLRB, the SEC, the FBI, and the NSA, that's a whole different question.