Alito, libertarianism, and conservatism

Ilya Somin isomin at
Tue Nov 1 11:34:04 PST 2005

I too must get back to work, but I will make one final post on this and 
give Sam the last word, if he wants to use it:

1. Machine guns and sexual harassment:

My argument on the machine gun case is indeed premised on the notion 
that federalism is good for libertarianism. This is not universally 
true, but I think most libertarians agree with it as a general rule and 
I believe they are right do so.

On harassment, I didn't make my point as clear as I should have. In 
saying that Alito didn't support speech that might be considered 
"harrassment," I meant merely that his decison protecting such speech on 
First Amendment grounds cannot be construed as approval of the speech's 
content (a claim which seemed to be made in Sam's previous post, 
although perhaps I misinterpreted him). It is perfectly consistent to 
say that there's a First Amendment right to engage in abhorrent speech 
and that is how I read Alito's opinoin in the harassment case.

2. Protecting federalism through "subconstitutional" means.

I highly doubt that such means come anywhere near providing real 
protection for federalism, especially since most can be so easily 
circumvented. Certainly, no judge - conservative or liberal - is likely 
to rely solely on subconstitutional doctrines to protect any 
constitutoinal principles that he or she considers really important.

3. Federalism and liberalism.

Sam may be right that today's liberals are different from Marshall or 
Brennan, and that is why they don't see any benefit to their values in 
federalism. But even if that is true for the liberals on the court, it 
should not be true for the many liberal  intellectuals and legal 
scholars outside the Court who still  subscribe to the same values as  
Brennan and Marshall did  (and indeed view them as heroes). Furthermore, 
it's far from clear to me that the values of Breyer- Ginsburg type 
liberals cannot be advanced through federalism. Even in the area of 
civil rights, there are many states and localities that provide greater 
protection than the feds do. Consider the debate over gay marriage, 
where conservatives are trying to use federal power to constrain pro-gay 
rights states. As for economic reglation, I agree that some forms can't 
be saved without gutting federalism. But economic regulation is not an 
end in itself, but a means to other ends. Many of those ends, I would 
argue, can be better served through decentralization.

4. Immigration and Islamic fundamentalism.

I highly doubt that this case can be explained solely or even primarily 
by an attitude to Islamic fundamentalism. Remember that the case turned 
on oppression based on gender, and that Alito did not distinguish 
between gender oppression based on Islamic fundamentalism and other 
causes. He must surely have known that the precedent could be used 
against other governments as well. At the very least, in the early 
1990s, hostility to Islamic fundamentalism was far from being a major 
conservative cause, or even one that conservatives were more interested 
in than liberals.

Samuel Bagenstos wrote:

>I have to run off and teach the Civil Rights cases, but a couple of point-by-point responses:
>Samuel R. Bagenstos
>Professor of Law
>Washington University School of Law
>One Brookings Drive
>St. Louis, MO  63130
>Personal Web Page:
>Disability Law Blog:
>>>><isomin at> 11/1/2005 8:29 AM >>>
>Several points:
>1. There's no evidence that Alito favors "sexual harrassment" or "the liberty to own machine guns." indeed, he favorably cites state machine gun bans in his opinion on the latter. 
>SB:  Okay, then these aren't really libertarian decisions.  You can't have it both ways and say that these are decisions that show a commitment to libertarianism and at the same time say that we can't look to the content of the liberty he protects in these cases.  The argument here is based on the notion that federalism is pro-libertarian, which isn't crazy but many folks may disagree with.
>2. OF couse federalism is more complicated than "are you for it or against it." However, coming to a conclusion that there can be virtually NO judicial review of federalism issues  (as the liberal bloc on the Court does) is certainly being against it. 
>SB:  I don't know that "no judicial review" -- if it means no constitutional review -- is being "against federalism."  It seems to me you could be very pro-federalism through subconstitutional devices like clear statement rules without striking down legislation as inconsistent with federalism.  For that reason, I think that Raich was right but that Oakland Cannabis was wrong -- and that Oregon should win in the "DWD" case.  I think if you look at the "liberal bloc," a number of them are willing to promote federalism through subconstitutional doctrines.  RBG certainly takes that approach in the substantive criminal law area.
>3. Alito's decision on the Iranian refugee case was in the early 90s, years before there was an "Axis of evil" and at a time when few conservatives were focused on Iran foreign policy-wise. And Alito is certainly smart enough to realize that the argument he makes is equally applicable to, say, a US ally like Saudi Arabia.
>SB:  Okay, so "Axis of Evil" is the wrong reference.  But I still remember the very popular song of my youth, to the tune of the Beach Boys' "Barbara Ann," which was called "Bomb Iran."  Our culture -- including conservatives -- didn't start thinking about Islamic fundamentalism as a problem in 2001.  And the American conservative relationship to Saudi Arabia has always been super-complicated.  My only point is that immigration cases like this may tell us more about a stance toward radical Islam than toward immigration or immigration law.
>4. On federalism, the liberals could easily get "both sides of it" if liberal judges would vote accordingly at least some of the time. Certainly, that would have reversed the results of Raich and it could very likely lead to a "liberal" result in the Oregon case today. Obviously, it is difficult to get liberal federalism victories if the only possible to way to win a federalism case in the Court is by getting all five "conservative" justices. But in most liberal federalism cases, the pro-federalism can usually get at least a few conservative votes (3 in Raich) and if the liberal justices were not monolithically opposed to virtually all judicial review of federalism, they could take advantage of this. On a related note, preemption would be less of a problem if the federal government were not held to have virtually unlimited legislative power in the first place.
>SB:  Again, true enough, and this is complicated.  One issue is that there aren't the kind of liberals on the Court that there once were.  So I would imagine a Brennan or a Marshall -- and certainly a Douglas -- would have thought medical availability of marijuana was an important policy result in the way that the current liberals wouldn't.  I mean, it would have been so easy to write the dissent in Oakland Cannabis, but the most Stevens, Souter, and Ginsburg could do was write a concurrence.  Another point is that the things these liberals care about -- civil rights laws, economic regulation -- are things that they can't save by signing on to the federalism agenda.  Liberal centrists think that national regulation is necessary in these areas for lots of reasons.  To say give up national regulation in order to lose preemption -- when preemption could be addressed without losing congressional power -- doesn't answer the problem.
>And a final point is principled (shock!):  Unless you take Justice Thomas's approach to the Commerce Clause, it's difficult to draw a principled line short of virtually plenary congressional power.  I don't think the four dissenters cared much about the result in Lopez -- the problem was the impossibility, in our interconnected economy, of drawing a principled line once we accept substantial effects as a proper area of commerce regulation.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 N. Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at

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