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.

The truth is that terms like "activism" have no meaning.

"Activism" is just an epithet that people use when a judicial decision conflicts with their politics.  So, for example, when the Supreme Court struck down DC's gun ban under the Second Amendment, liberals called that conservative judicial activism. Conversely, when a judge strikes down a ban on gay marriage as a violation of equal protection, conservatives call that liberal judicial activism.

In January, IJ launched its new Center for Judicial Engagement, which seeks to break the partisan battle over judges, and recognize that constitutional adjudication can and should be a principled effort to take all rights seriously, not just pet rights such as gun rights or gay marriage or abortion. The judiciary is the third branch of government and citizens have a legitimate expectation that courts will protect their liberty from legislatures. Indeed, given the non-stop production of laws and regulations, the term "activist" should be reserved for the elected branches.

Are there any policy stances you'd particularly like to see from candidates vying for the presidency?

We'd like to see candidates recognize that "activist" legislatures on the right and left are the biggest threat to economic liberty.  We'd also like to see politicians on the right and left stop their steady campaign to delegitimize the courts by accusing judges of "activism" on those extremely rare occasions (this happens a handful of times each year) in which a law is invalidated as unconstitutional.

There are three branches of government, not two, and the purpose of government is to protect liberty, not provide the elected branches with unlimited opportunities to manipulate the lives and property of citizens.  Economists working in public choice theory have understood for two generations that the elected branches will almost inevitably be turned into instruments for the advancement of industry, not public, interests.  IJ is a staunch defender of the free market and a sharp critic of the fact that most people in the free market spend an enormous amount of time and money petitioning government to make the market unfree in a way that advantages them and hobbles the competition.

If asked during a presidential debate to pose one question on behalf of IJ what would it be?

I'd ask this: "Would you support legislation and a rule of constitutional interpretation that presumes economic regulations to be invalid such that if they are challenged in court, the burden is on the government to establish a legitimate reason for its intrusion into the lives of citizens?"

Normally, the way we approach organizations trying to affect public policy is to look at their rhetoric, first principles, and ideological associations, and put them in the mental box of political ally or adversary. I submit that it's much better to become familiar with IJ efforts on a case by case basis. The fact that litigation is their method makes it perfectly easy to be their ally in one effort and their adversary on another. Just be warned that whatever you think of their various legal arguments, they someone always manage to find ridiculously likable plaintiffs:
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