December 20, 2004

DoJ Lawyers publish legal opinions online (tip: Volokh take 1 take 2)

The Department of Justice's Office of Legal Counsel is responsible in part for formulating and writing the legal opinions of the Department of Justice, the White House and the United States. Needless to say this is a position of no small influence and no puny respect. When they publish opinions it has an influential effect in the legal community to reinforce the status quo or to legitimize reformist or non-status quo perspectives. It also indicates the direction of the Administration in jurisprudence.

We have a few trends from the White House regarding legality and constitutional jurisprudence as it stands - arguing against federalism in the medical marijuana case Ashcroft v. Raich, arguing for nearly unlimited powers in the Gitmo cases (e.g. Hamdi v. Rumsfeld) and so forth. So, mostly non- or anti-libertarian positions.

Well, that's not changing, except for gun control. In 2001 the OLC came out in favor of the Second Amendment as an individual right, not a colective or quasi-collective right. Just recently they published it online. This is substantive because the current constitutional is more or less that whatever Congress wants to do is okay. Of course, that's not the official stance, but that's close to how it's really practiced. Also, the Second Amendment produces few to no constraints against the power of the states - it was not 'incorporated' or nationalized by the Fourteenth Amendment.

If I were going to argue the libertarian position to somebody, I'd first point out (with a nod to friend Ed L. MacDougall) how some folks seem to think that "the right of the people" in the Second Amendment is collective while "the right of the people" in the Fourth Amendment is individual. That doesn't make a whole lot of sense. The reason it doesn't make sense is political: if you believe something politically then you are likely to believe the Constitution is on your side.

Of course, George Mason and others said during the time of constitution-writing that the right to keep and bear arms was an expressly individual right. How else could it be? Why would the Founders write a Second Amendment to protect individual rights like speech, religion, privacy, trial rights and individual liberties and then make one securing... the right of states to have militias? Not very likely that's what they meant - if they were trying to protect the right of states to keep militias they'd have been more specific.

The reason pro-gun control (and anti-gun) advocates don't explain the reasoning behind the Second Amendment is simple: they can't come up with one that backs their side, so they don't try. The Founders didn't want people to be disarmed. They were looking at English history: Kings Charles II and James II had used English laws to disarm political opponents: the Whigs and the Protestants, respectively. In and just before the American Revolution, the British had sometimes disarmed American towns. Obviously they wanted to protect people from having their guns taken away and connected it directly to tyranny.

They were very plain and explicit. It's too bad they didn't make their language in the amendment even more explicit, because apparently "right of the people" and "shall not be infringed" are too complicated.

Anyway, those are the arguments I'd make. It's weird that we get bogged down in the largely over-stated statistics of both sides instead of the basic constitutional language.

The other decision OLC has published online is on the war powers of the President. They found an extremely broad power of the President to basically do whatever he deems justified againast any person, organization, state or foreign country harboring terror and to preemptively invade countries whether they're linked to the 9/11 attacks or not.

Pretty broad stroke, there. That's what Clarence Thomas wrote in the Hamdi case, basically saying the President can do whatever's needed because there's a war going on. Of course, the rest of the court disagreed with that, and Scalia sided with Stevens to actually end up to the left (pro-civil liberties) side of the plurality's decision.

So, two interesting issues. I think it bodes not well for libertarians in the Republican coalition that on most constitutional issues - economics, federalism, foreign policy and the like - the White House is running a very centralizing, controlling, pro-federal, pro-executive version of everything. It's only on gun control that the Bush Administration is moving in a libertarian direction.

It used to be such that the Republicans were, if not more libertarian at least less openly hostile toward constitutional libertarianism. That's not true anymore. One interpretation would say that as the GOP gains national party it's shedding the outsider, reformist, limited-government aspects of its platform because they only serve to limit their own activities. Another interpretation would say that the GOP shed those perspectives and THEN America trusted them to have power.

Personally, I think it's simply the viewpoint of the President and his people on what is most effective for doing what they want to do (fight hard in the war on terror, fight the drug war even against medical users) and what best matches their ideological precommitments (against gun control, against medical marijuana, etc.) - it's just too bad that the libertarians in the coalition are being alienated.

This isn't some campaign promise to drop later, this isn't an empty statement to the public to make political hay. Legal briefs from the OLC are primarily directed at influencing policy and influencing the opinions of legal experts, jurists and academics. They are setting the groundwork for a long-term policy shift away from the federalism of the Rehnquist court and trowards what critical, cynical libertareians would no doubt call "an Imperial Presidency" policy that allows the White House free reign to do as it likes in foreign policy.

They're talking about a serious and deep split in the Libertarian-Social Conservative coalition, and if the problem advances it could see a substantial shift in the political debate and culture of the US.


Anonymous Anonymous said...

Hey Chris, good observations. (Especially the part by that strapping lad, Ed!)

Gotta comment on the last two paragraphs, however. Somebody such as Alan Keyes is most decidedly on the social conservative side and not the libertarian side, yet he would be inclined to agree with you.

Maybe the distinction is between people with a philosophical approach and people with a practical approach. Only the philosophical types, like you or Keyes, are inclined to express constitutional concerns. Others are more likely to "trust this president."

But empty threats about voting blocs which don't exist won't get you anywhere... ;)

Are there practical reasons that the Bush Administration should actively attempt to define limits on their own power? As one example: in four short years, this country could elect a president who we are much less likely to trust with the powers currently being defined.

I'm sure there are other reasons, what do you say?

-- Ed.

December 22, 2004 11:24 PM  

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