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The Supreme Court and Political Power

No victories for Liberty this year.

by James Leroy Wilson
July 10, 2003

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The Supreme Court and Political Power_James Leroy Wilson-No victories for Liberty this year. The recent Supreme Court decisions on state university affirmative action programs and state anti-sodomy statutes created disagreements among libertarians. Those whose libertarianism is based mainly on an a priori commitment to individual rights tended to condemn the affirmative action "compromise" decisions and applaud the striking-down of the Texas sodomy law. Conservative libertarians seemed to want to outlaw all forms of affirmative action and yet condemn the sodomy decision as violating state's rights. But other libertarians see it a different way. At least I do. And Stephan Kinsella. So at least
there's two of us.

What these cases demonstrate to me is that libertarian ends can only be achieved by libertarian means. The libertarian end is freedom from The State. Freedom from the State's force and coercion, freedom from the State's monopoly of violence. The libertarian "means" to that end is the devolution, the decentralization, of power. Throw off the shackles of world government, then of national government, then of state (or provincial or regional) government, so that public affairs could be ordered and regulated through voluntary cooperation and private contracts.

(To that end, it is too easy to say that President Bush, for all his faults, at least managed to throw off the shackles of the world government of the United Nations. This is incorrect. He has instead replaced the United Nations with himself. The Bush administration is the world government. We must get rid of it. Now back to the scheduled topic.)

The Supreme Court has, with these decisions, imposed the reverse of decentralization. By undermining state affirmative action policies and anti-sodomy laws, one could argue that the Court has reduced the power of Statism within our small, local states. It certainly has, but only at the price of increasing Statism at the national level, particularly, in the federal judicial branch, and especially, within the institution of the Supreme Court.

Here, it is necessary make a distinction between a "judge-made" law in a truly naturally-ordered (or "anarchic") society and judge-made law within the State. In the natural order, the "natural aristocracy" as described by Hans-Hermann Hoppe would rise to settle disputes. A judge would be selected by reputation by the mutual consent of the contesting parties. A judge called to adjudicate a dispute, whose ruling isn't wise or fair, will likely not be called upon again. This is how Somalia is returning to stability, and indeed this is how any peaceful, tribal, natural, or what Statists would call "primitive" people, acting without the "benefit" of the State, would act. Those who inherit a culture that respects the life, liberty, and property of others do not need to pay taxes in order to support a judicial monopoly. A precedent wouldn't be a precedent just because a judge said so, but because it is widely recognized as wise and just.

The Supreme Court, however, does not operate that way. It is part of the State apparatus established in the Constitution. As such, its members owe their livelihoods to the very monopoly of violence that is the State. The very office of Supreme Court justice is, arguably, the result of an illegal usurpation of the government established by the Articles of Confederation. Many generations later, occupants of the Supreme Court offices, and especially their young idealistic law clerks, impose their views of right and wrong, good and bad, upon an American population that never consented to the Supreme Court in general, let alone the appointment of its current members.

The incentives for this systematic denial of self-government is within the concept of the Supreme Court itself. The Constitutional Convention, justifiably fearing interference by the "political" branches into court appointments and decisions, granted lifetime tenure on the Supreme Court with only the one condition of "good behavior." If you're not impeached, you stay until you retire or die. And salaries could not be decreased, either. On becoming a member of the Supreme Court, you had near-complete independence.

And it sounds good, in theory. That is, in political theory. The reality is starkly different. The independent judiciary was supposed to be a "check" on the more ambitious and political branches within Congress and the Presidency. But, as a secure and independent agent of the State, the Supreme Court was itself, and necessarily, a political branch. You wouldn't allow yourself to hold an office within the State if you didn't personally believe in politics, if you do not embrace the State as the means to shape society as you want it. To believe in politics is to desire power.

It is telling, however, that the Supreme Court exercised its power of judicial review, endorsed by Hamiton in Federalist 78, just twice before the Civil War. Its landmark cases in that time instead generally affirmed national supremacy over state laws and practices. And after the 14th Amendment was included in the Constitution, the Supreme Court essentially declared war on state and local government. Especially after Generalissimo Franklin D. Roosevelt threatened court-packing, the Supreme Court has usually cowered before the federal government's Constitution-trouncing practices, while gleefully pretending that, say, if one local public high school allows a student-led prayer before a football game, the Inquisition isn't far behind.

The Supreme Court has believed for a long time that it can not win in a genuine political fight against the dishonest, murderous kleptomaniacs who occupy the House, Senate, and Presidency. So it instead unleashes its power against the states, against self-government. But the power it denies to the states, it gathers unto itself. What was supposed to be a system of "checks and balances" has degenerated into a mutual-centralization society. Congress uses its "power of the purse" to impoverish and coerce Americans, the President uses his "power of the sword" to subjugate the world and declare American citizens "enemies" without Constitutional rights, and the Supreme Court destroys state sovereignty and local government, which can only invite Congress to interfere and nationalize what was once considered matters of purely local concern. Such is the power of the public servants in the federal courts, whose actions deny the sovereignty of the people, and who are held unaccountable to them as well. Instead of the three branches checking each other, they leave each other unchecked as they gather more and more power unto themselves. (And don't get me started on that unconstitutional fourth branch of government called the Federal Reserve Board.)

So how does all this apply to affirmative action and sodomy? Affirmative action is easy. Some claim that such state and local policies of "helping" blacks get admitted or hired, violate the Civil Rights Act. True. But the Civil Rights Act, which used the language of the Commerce clause to justify Congress legislating anything and everything, including freedom of association, property rights, and individual conscience, is itself unconstitutional. So the only question is whether such policies offend the Equal Protection Clause of the 14th Amendment.

They do not. When I think of "equal protection," I think of non-discriminatory police regulation and protection. No person would be compelled to do something that no one else would be compelled to do. No person would enjoy special legal protection denied to someone else. But this can not extend to privileges and benefits like public university admissions and government jobs. As a libertarian, I agree that no one has the "right" to any private admission or job hire; how can I insist otherwise when it comes to state admissions and hires?

Yes, I believe public universities should be privatized. Yes, there should be as few jobholders as possible in government. But, granting that they do exist and will for some time to come, consider this: how would members of a racial minority feel if they were compelled by force to support a state and its institutions, which in return rarely or never employs members of that race, or almost never welcomes them in its best universities? A state that imposes only obligations and confers no benefits to minorities appears to run counter to the 14th Amendment. But, short of quotas that demand strictly equal proportional representation, where do we draw the line? How can a meritocracy conform with an explicitly, consciously anti-racist policy, if a strict meritocracy will lead to severely under-represented minorities? Nobody knows the answer; no one knows how to balance the "fairness" of meritocracy with the "fairness" of equal representation and equal ownership. Which is exactly the point: no one should impose an answer, especially not a "higher" Statist authority. Especially not the Supreme Court. Its members possess no qualifications whatsoever to dictate admissions policies in the sovereign state of Michigan.

As a libertarian, I reserve the right to discriminate, the right to associate with whomever I please, and the right to keep those I don't welcome off of my property. Unless I monopolize too much land, there is nary a problem for another person. That I've created wealth, and jobs for others, doesn't make anyone else entitled to one of those jobs. The jobs wouldn't be around for anyone at all, if I didn't create them; how does someone else have the right to one of my own creations? Why can't I hire whoever I choose, at rates mutually agreeable? Who else has the right to interfere?

And I would reserve for myself the right to serve the market as I desire. If the particular market place is 30% black, 5% Asian, 10% Hispanic and otherwise mostly white, I'd probably want, as far as I find people in whom I'm confident, to employ people both behind the scenes and publicly, in proportions at least roughly equal to the racial and ethnic make-up of the population as a whole. I'd rather have the most of the people feel like they have some sort of "ownership" in my company. How much more would politicians want all population groups to feel they have ownership in their state!

And why should a state be any different than a private individual when it comes to granting jobs, admissions, or other opportunities? The University of Michigan belongs to the people of Michigan. Not to me, a resident of Illinois. Not to The American People. But to the people of Michigan. It is their republic. It is their institutions. It is their government, their trustees, their decision on how to reflect the "diversity" of their own state in their institutions, or to otherwise serve the educational, cultural, moral, or whatever needs of the people of Michigan. It's not my business, it's not the nation's business. It is up to the people of Michigan. It is quite clear that the Supreme Court doesn't have the knowledge or authority to decide the internal practices of the University of Michigan, in either its undergraduate or its law school program.

Do I think the state would be better off without public universities? Of course. I feel the same about public universities in Canada, too, but I don't believe it's my business to force either the state of Michigan or the country of Canada to conform to my wishes.

Likewise, the Supreme Court's rule overturning Texas's sodomy ban had nothing to do with the Constitution and everything with increasing the political power of the Supreme Court. I think the ban was illegitimate on its own terms, but neither I, nor the Parliament of Canada, nor the Crown Prince of Saudi Arabia, nor the United Nations Security Council, nor even the Supreme Court of the United States, had the legitimate authority to overturn it. And that's the key to libertarianism. Whose power? By what authority? The only people who had the right to get rid of its own unnecessary, victimless laws, were the people of Texas. It's their state, not mine.

Once we concede to the Supreme Court authority to overturn laws which we as libertarians don't like, we end up transferring more and more power to the central, federal government. This makes it even harder to advance libertarian causes in the areas that the Supreme Court refuses to consider, such as those that touch upon the economic sphere.

We must always spread the good news of individual rights, yet at the same time condemn centralized power, even and especially when it comes to the Supreme Court overturning state and local laws. It is always better for a petty tyrant to run amok in a small state, than for the nationalist jackboot to stomp over the freedoms of everyone in the name of protecting all of us from that same petty tyrant. Because all Statism drifts toward the tyrannical, libertarians must support the system that best keeps such tyranny as small and localized as possible. If we don't have the courage to admit that much, then we deserve what we get.

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