On the Origins of the Modern Libertarian Legal Movement

by Roger Pilon

The growing influence of the modern libertarian legal movement in America and beyond was no better illustrated recently than during the twoyear run-up to the Supreme Court’s “Obamacare” decision, which came down on the Court’s final day last June.1 Marginalized for years by many conservatives2 —to say nothing of the long dominant liberal establishment that dismissed their arguments out of hand3 —libertarians offered a principled vision4 that resonated not only with judges who over that period decided several challenges to the Act’s massive expansion of government,5 but with a large part of the American public as well—and, in the end, with  a majority on the High Court itself.6 And why not: The vision was grounded in the nation’s First Principles.

The movement did not come out of nowhere, however. Its roots are deep and often subtle, the product of decades of thought and work by philosophers, economists, lawyers, and others, all toward securing the legal foundations for liberty. An entire volume would be needed to adequately treat the origins and course of the movement.7 In the limited compass I’m afforded here I will be able simply to scratch the surface, touching on some of the main themes, actors, and events—largely from my own perspective and experience as one who was there toward the beginning, seeing and living events that younger members of the movement today have only read or heard about, if that. My aim is to give those members at least a glimpse of that history, the better to appreciate the value of the work that lies before them.

 

1 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

2 For the most recent example, see J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE (2012).

3 Among countless examples, see Akhil Reed Amar, Op-Ed., Constitutional Showdown, L.A. TIMES, Feb. 6, 2011, at A17.

4 See ROBERT A. LEVY, THE CASE AGAINST PRESIDENT OBAMA’S HEALTH CARE REFORM: A PRIMER FOR NONLAWYERS (2011); Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & LIBERTY 581 (2010); Ilya Shapiro, A Long, Strange Trip: My First Year Challenging the Constitutionality of Obamacare, 6 FLA. INT’L U. L. REV. 29 (2010).

5 See, e.g., Florida ex rel. Att’y. Gen. v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011), aff’d in part, rev’d in part, 132 S. Ct. 2566 (2012); Florida ex rel. Bondi v. U.S. Dep’t  of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011), aff’d in part, rev’d in part, 648 F.3d 1235 (2011), aff’d in part, rev’d in part, 132 S. Ct. 2566 (2012); Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010), vacated, 656 F.3d 253 (2011).

6 See James F. Blumstein, Enforcing Limits on the Affordable Care Act’s Mandated Medicaid Expansion: The Coercion Principle and the Clear Notice Rule, 2011 2012 CATO SUP. CT. REV. 67 (2012); David B. Rivkin Jr. et al., NFIB v. Sebelius and the Triumph of Fig-Leaf Federalism, 2011–2012 CATO SUP. CT. REV. 31 (2012).

7 On the broader conservative legal movement, see STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW (2008); BRINGING JUSTICE TO THE PEOPLE: THE STORY OF THE FREEDOM-BASED PUBLIC INTEREST LAW MOVEMENT (Lee Edwards ed., 2004)

On The Origins of the Modern Libertarian Legal Movement .pdf file

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