Creeping libertarian constitutionalism at US high court

Until recently, few legal commentators paid much attention to libertarian thought on constitutional issues. Libertarians seemed like a small minority outside the political mainstream and out of sync with the liberals and conservatives who dominate our political and legal discourse. Most legal thinkers believed that the U.S. Supreme Court decisively rejected libertarian ideas when it repudiated most judicial protection of economic freedoms and judicial enforcement of limits on federal economic regulation in the 1930s. In recent years, however, ideas championed by libertarians have increasingly entered the legal mainstream.

Defining libertarianism is a difficult task. But the most common understanding of libertarianism is that it is an ideology that advocates strict limitations on government power in both the economic and social spheres. Like many conservatives, libertarians promote respect for property rights and economic freedoms. Like some on the left, they advocate broad freedom of expression, strong protections for the rights of criminal defendants, and abolition of laws mandating punishment for victimless crimes such as illegal drug use.

In the field of constitutional law, libertarians advocate strong judicial enforcement of both economic and social freedoms, and of constitutional limitations on the power of the federal government. Many, but certainly not all, libertarian constitutional scholars are originalists. Most of all, they are skeptical of judicial "deference" to the legislative and executive branches of government. The do not believe that judges should presume that challenged government actions are constitutional, or otherwise give the state a leg up in constitutional cases.

Over the last 30 years, libertarian ideas have had a growing influence on the legal mainstream. This is particularly true in the areas of judicial enforcement of federalism-based limits on congressional power, and property rights protected by the takings clause of the Fifth Amendment.

From the 1940s to the 1980s, the Supreme Court provided little or no enforcement of either of these aspects of the Constitution. During that period, libertarians were among the few who advocated strengthening judicial review in these fields. But starting in the 1980s, the Supreme Court gradually began to interpret the takings clause to require compensation for a wider range of government restrictions on property owners, thereby partially embracing ideas long advocated by libertarian scholars such as Richard Epstein.

The Fifth Amendment also requires that government can only condemn property for a public use. Since 1954, the court interpreted "public use" to mean virtually any purpose endorsed by the government. For many years, libertarians were almost the only ones advocating a more restrictive interpretation of "public use." But in the 2005 case of Kelo v. City of New London, the Supreme Court only narrowly upheld the condemnation of property for private economic development. Four Supreme Court justices forcefully dissented.

In the aftermath of Kelo, polls showed that over 80 percent over the public disapprove of the decision and 45 states enacted eminent domain reform laws; no other Supreme Court decision has ever generated so much hostile legislation. For the first time in many years, relatively narrow interpretations of public use have reentered mainstream legal discourse. The Kelo case was litigated by the Institute for Justice, a libertarian public interest firm with a longstanding focus on property rights. Without their advocacy and that of other libertarians, the previously dominant ultradeferential approach to public use might still be unchallenged orthodoxy.

The constitutional debate over federalism has followed a similar path. Between 1937 and 1995, the Supreme Court did not invalidate a single federal law as being beyond the scope of Congress' power to regulate interstate commerce. But over the last 20 years, the court ruled that several laws are outside that scope, including holding that the commerce clause does not give Congress the authority to enact the Affordable Care Act (aka Obamacare) individual health insurance mandate, in NFIB v. Sebelius (though the court did uphold a modified version of the mandate under Congress' power to tax).

The court has also begun to enforce constitutional constraints on several other congressional powers. In NFIB, seven Supreme Court justices invalidated a part of Obamacare's expansion of conditional federal Medicaid funding for state governments - the first time the court enforced any limits on Congress' spending power in some 75 years. Libertarians played key roles in several of these federalism cases. Most notably, libertarian legal scholar Randy Barnett was the architect of many of the key arguments against the constitutionality of the individual health insurance mandate.

Libertarian lawyers also litigated Heller v. District of Columbia and McDonald v. City of Chicago, the landmark decisions in which the Supreme Court first ruled that the Second Amendment protects an individual right to bear arms, and applied that right to state governments.

Many recent gains for libertarian ideas were made possible by cooperation with conservatives, including most of those involving property rights and gun rights. But some also show the growing influence of libertarian ideas on moderates and liberals. In the 2011 case of Bond v. United States, the Supreme Court unanimously endorsed the key libertarian idea that "[s]tates are not the sole intended beneficiaries of federalism," because constitutional "[f]ederalism [also] secures the freedom of the individual. The widespread backlash against the Kelo decision was joined by many left of center activists and groups, such as Ralph Nader and the NAACP, who had come to recognize that unconstrained government power to take property often victimizes the poor and disadvantaged.

Libertarians have also worked with liberals to promote judicial decisions expanding the rights of gays and lesbians. They argued for the abolition of anti-sodomy laws long before this cause became prominent on the left. Lawrence v. Texas, the Supreme Court's 2003 decision striking down such laws, was partly based on libertarian reasoning claiming that the Constitution creates a presumption of liberty in intimate personal relations. The Supreme Court's decision striking down a provision of the Defense of Marriage Act in United States v. Windsor partly relied on an amicus brief submitted by libertarian and conservative federalism scholars, who argued that DOMA was beyond the scope of Congress' authority.

Several prominent libertarian organizations and scholars have also been active in ongoing litigation seeking to strike down widespread NSA surveillance of electronic communications. Here too, there has been increased mainstream acceptance of ideas long advocated by libertarians.

Libertarians are still very much a minority in legal circles, as in society generally. On many issues, judicial precedent and mainstream legal thought remain far from where libertarians would like them to be. Still, it is notable that the influence of libertarian constitutionalism has dramatically expanded in recent years.