The Civil Liberties Primary: A Merry Band of Litigators

The Institute for Justice combines the right's focus on economic liberty with the left's willingness to effect change through the courts

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In the last installment of the civil liberties primary, we heard from the ACLU, an organization that works on a broad array of issues. One of its senior staffers, Michael W. Macleod-Ball, made the case that as Election 2012 approaches, executive power and privacy are the most urgent.

Today's subject is The Institute for Justice. It is a much smaller organization that focuses its efforts on a narrow mission. In the estimation of its "merry band of libertarian litigators," candidates on the right and left should put their differences aside and agree on this much: everyone ought to enjoy an array of economic liberties, and the judiciary is a vital tool for securing them.

That's a bit abstract, so it's worth pausing quickly to look at a typical campaign launched by the organization:

Full disclosure: I am a food truck lover with an alarming addiction to Kimchee quesadillas. So I am hopelessly biased in this case. More broadly, it seems to me that a promising way forward for libertarians is to build an alliance between conservatives with a soft spot for small entrepreneurs and liberals intent on using the judicial system to protect and expand the rights of underdogs. 

What's important today, however, is that one of IJ's senior attorneys, Jeff Rowes, agreed to an e-mail exchange to discuss the worldview of civil libertarians allied with the organization, and how they'd like to see primary season play out. What follows is a lightly edited version of our correspondence.   

What are the most important issues IJ is focusing on these days?  

Economic liberty and judicial engagement. 

Economic liberty is the right to earn an honest living free from unreasonable government interference.  One should be free to pursue a livelihood subject only to regulations that directly protect public health and safety.  Unfortunately, there is an enormous amount of economic regulation that has nothing to do with protecting the public and everything to do with protecting industry insiders from competition. 

This is especially true in the area of occupational licensing. For example, right now I represent the monks of Saint Joseph Abbey in Covington, Louisiana.  They want to sell their handmade wooden caskets to the public to support themselves, but state law permits only state-licensed funeral directors to sell caskets. There is no legitimate reason for this restriction. A casket is just a box. It plays no role in protecting the public and you don't even need a casket for burial.  The only reason this law exists, and the only reason the funeral industry is defending it so zealously in federal court, is because caskets are a big part of funeral-home profits.

Is this sort of economic protectionism worse than it once was?

It has exploded.

In the 1950s, about five percent of jobs needed a government license.  That figure is now almost one-third, and it grows everyday as industry lobbyists in jobs like interior design work their connections in state legislatures trying to get protectionist legislation passed.  Whether you are on the right or left, economic liberty is critical because gainful employment is the foundation for responsible citizenship, and economic protectionism is a huge drag on productivity.  The country will not be able to pay its debts, its defense costs, its health care, or its social security without a productive economy, which is why the steady erosion of economic liberty is a slow-motion civil rights crisis with enormous implications.

You mentioned "judicial engagement." What does that mean?

Judicial engagement means that judges aren't "activist" (striking down laws based on personal preferences) or passive (letting the government do what it wants), but attentive to the critical balance between the legitimate prerogatives of the elected branches and individual liberty.  The erosion of economic liberty is a direct result of judicial disengagement. Since the New Deal, courts have basically decided that they won't protect economic liberty against government regulation, even regulation that serves no discernible public purpose.  Ironically, when Republicans rail against "activist" judges, they are essentially defending the liberal New Deal status quo. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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