In the Winter 2012 Independent Review, I review David Bernstein’s Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Here’s how it starts:

Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of hours that bakers could work as a violation of the Fourteenth Amendment’s Due Process Clause. It’s safe to say that most legal academics and judges today believe that the Lochner Court engaged in extraordinarily outrageous “judicial activism” motivated by a devotion to extreme libertarian ideology, big business, or both.

In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, George Mason University law professor David Bernstein makes the case that the conventional view is wrong. He provides persuasive evidence that Lochner does not deserve to be singled out as an especially activist or offensive case and that Lochner‘s Progressive critics were the real activists with a much more disturbing agenda.

Read the rest.

Another full chapter of Libertarianism Today is now online for free — this one on why libertarianism is antiwar. This is my favorite chapter of the book, so I’m especially glad I could make it available through Antiwar.com.

Other parts of the book you can read for free online:

• Reagan: No Revolution
• When All Drugs Were Legal
• The Drug War’s Dubious Foundations
• What Is Libertarianism? (full chapter)
• The Fight Against Intellectual Property (full chapter)

And if you want to read the whole thing, it’s on sale at a special low price for a limited time.

After reviews by Bryan Caplan and our own Stephan Kinsella got my attention, I read Alexander Tabarrok’s new “TED” e-book, Launching the Innovation Revolution.

I went in with an open mind, ready to applaud practical suggestions for incrementally increasing freedom in the area of intellectual property, even if Tabarrok didn’t endorse abolishing the entire patent system as I do. But I was still disappointed.

To Tabarrok’s credit, he does start by showing why patents aren’t necessary to have innovation (at least, he says, in most fields), and he does argue for shorter patent terms (for some things) and less patent protection (for some things). That’s all fine, as far as it goes.

Unfortunately, too much of the book is devoted to promoting new central-planning schemes that Tabarrok thinks would work better than current government programs. Kinsella discusses some of them in an update to his original review; I’ll discuss a couple more.

Perhaps my least favorite was a suggestion that the federal government subsidize higher education only in areas where there will supposedly be “spillovers” of benefits to the economy as a whole, such as engineering and biochemistry. Education in less economically valuable fields, such as sociology, would not be subsidized. The problem is, Tabarrok doesn’t mention what I’m sure he knows: we’ll get all the innovative engineers and scientists we need if we stop subsidizing higher education entirely and let the market decide what areas of study are valuable. On the other hand, if government planners enter the business of deciding which subjects are economically important, as Tabarrok wishes, what reason is there to think that they’ll choose the “right” subjects and that the subjects won’t be determined (and altered over time) according to political considerations? Apparently Tabarrok thinks you just need to have the right planners in charge — but anyone familiar with libertarian thought or public choice, as Tabarrok is, should know that any scheme that depends on the wisdom or benevolence of government planners is bound to fail.

Elsewhere, Tabarrok endorses the idea of governments buying mass quantities of vaccines from pharmaceutical companies, and he says it’s “shameful” that the U.S. has not done this in some instances where other countries’ governments have done so. Here again, it’s just assumed that the government will choose well — and that the program won’t turn into a corporate welfare scam that ultimately will have little to do with what’s actually good for Americans’ health. And this is to say nothing of the impropriety of forcing people to pay for things they wouldn’t voluntarily pay for.

Tabarrok says that many federal regulations are “good,” it’s just that taken together, they make the cost of doing business too high and stifle innovation. Which he considers to be good and why is never clear.

At least Tabarrok does get in a dig at the warfare state — not because it slaughters thousands of innocent people but because it diverts resources away from domestic innovation. (He’s not against all military spending, though. For example, he laments that we give “only” $3 billion a year to DARPA for R&D — never mind that the money it gets now is spent on some very disturbing projects.)

Maybe this book will help some people recognize that patents aren’t as essential to innovation as some claim, or get some people to favor increased immigration (another area in which it is good). I’m concerned, however, that it’s the statist ideas, if any, that we’ll see implemented.

Just in time for Christmas, my book, Libertarianism Today, is available for its lowest price ever: just $22.47 for the hardcover!

Get this price while you still can by ordering direct from the publisher online or by calling 800-368-6868.  Sale ends January 15.

Recent reviews of Libertarianism Today:

• “If you want to undermine statist beliefs, pass this book around.” — George Leef, The Freeman

• “The best introduction to libertarianism on the market.” — Laurence Vance, Freedom Daily

• “It should appeal to all readers, from the most well-informed libertarian to those new to the radical theory.” — Alex Willemyns, Policy

Several years ago, I wrote a review of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Cato Institute chairman Robert A. Levy and Institute for Justice co-founder William Mellor. As its subtitle suggests, the book criticizes twelve U.S. Supreme Court decisions that are especially offensive from a libertarian perspective, such as Wickard v. Filburn, Korematsu v. U.S., and Kelo v. City of New London.

Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.

I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.

In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.

Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.

My view on this has been influenced by Clark Neily, director of the Institute for Justice’s new Center for Judicial Engagement, who has lately been elaborating on the concept of judicial engagement in appearances at Federalist Society events (I attended one) and in a series of posts at the Volokh Conspiracy.

As Neily describes it, “judicial engagement” is about prodding judges to do their putative job of interpreting and applying the Constitution — which, for Neily, means striking down laws that don’t comport with the Constitution rather than just rubber-stamping legislatures’ decisions in every case under the useless “rational basis” standard of review as courts do most of the time. It is essentially about “calling judges out” when they allow constitutional rights to be violated.

Described that way, judicial engagement appears to be consistent with a libertarian attitude toward government. In the libertarian view, government officials are never to be trusted to do the right thing; instead, the people must be ever vigilant to ensure that government does as little damage to liberty as possible. In the judicial context, this means that we must constantly remind judges of their supposed job and accuse them of abdicating their responsibility when they fail to give legislation the scrutiny it deserves.

The belief in a need to promote judicial engagement is duly cynical inasmuch as it’s premised on the idea that judges can’t be expected to protect liberty in the absence of persistent, intense pressure. The IJ lawyers’ strategy of promoting their pro-liberty legal positions in the court of public opinion, which they believe influences judges, also reflects a “legal realist” attitude appropriate for libertarians, not a deluded vision of judges as unbiased, neutral arbiters.

Judicial engagement is not a panacea, of course. I still doubt that federal courts will meaningfully narrow their expansive reading of the Commerce Clause anytime soon; no 2012 presidential candidate strikes me the sort of person who would appoint judges who would limit federal power. Indeed, there’s every reason to think they would do the opposite. (Ron Paul and Gary Johnson are exceptions, but they are unlikely to win.)

As I have emphasized elsewhere, libertarians’ primary job is education — first of themselves, and then of others. This is essential to building a solid, long-term foundation for liberty. But just as it would be wrong for libertarians to neglect that duty, it would also be wrong to reject a means by which liberty can be increased — and people’s lives can be improved — in the short run. Going to court to fight for people’s liberty accomplishes this, at least sometimes, as one can see from libertarian legal activists’ victories in the Heller and MacDonald gun cases and in the Institute for Justice’s many victories. It also serves an educational purpose, even when the court battle is lost, by calling the public’s attention to the underlying issues; Kelo, for example, educated the public on the evils of the eminent domain power.

I can’t see how a libertarian could disapprove of this kind of judicial engagement — and to the extent that I have done so in the past, I’ve changed my mind.

Cross-posted at The Cockle Bur.

I love this article by Paul Craig Roberts on the “true cost” of the Iraq war and think everyone should read it.

But there’s one sentence in this otherwise-outstanding piece to which I take exception.  Roberts writes: “The fascist Republican Federalist Society has put enough federal judges in the judiciary to rule that the president is above the law.”

This is nonsense.

First, let’s tackle the claim that the Federalist Society is “fascist” and “Republican.”

The Federalist Society was formed by law students who were frustrated by the left’s dominance at law schools.  They created the organization to provide a forum for alternative voices: namely, those of conservatives and libertarians.

Here’s how the Federalist Society functions.  There’s a national headquarters in Washington (a red flag, I’ll grant you), there are student chapters in almost every law school, and there are lawyers’ chapters in various cities.

The student and lawyers’ chapters generally do one thing: host lectures and debates.  These events feature speakers ranging all the way from people Roberts would probably call “fascist” to anarcho-capitalist libertarians such as Randy Barnett and Walter Block.   One frequent Federalist speaker is Roberts’s fellow columnist at Antiwar.com, Doug Bandow, whose lecture topics include the American Empire.

Who decides who will speak at these events?  Each chapter’s members.  If the members tend to be more conservative, they may bring in more conservative speakers.  If the members tend to be more libertarian, they may bring in more libertarian speakers.

If the balance seems to tip in favor of conservatives overall, it’s only because there are, of course, many more conservatives than libertarians among America’s law students, lawyers, and law professors.  In fact, it’s safe to say that libertarians are featured at Federalist Society events in rather gross disproportion to the percentage of its members who are libertarians.  Why?  Probably because it’s a group that was founded for the purpose of having alternative ideas expressed and holding intellectually stimulating events.  I should add that leftist speakers often appear at Federalist debates, too — because the purpose is to debate ideas, not to cram some Republican agenda down people’s throats.

The national office of the Federalist Society puts on a symposium every year where top conservative and libertarian legal scholars speak — and this usually does include a Republican Supreme Court justice.  Nonetheless, libertarians are there, and they are given a respectful hearing like everyone else.  Incidentally, at the last symposium, Judge Janice Rogers Brown — who isn’t perfect but certainly satisfies my big-tent notion of who counts as a libertarian — quoted from Thomas Woods’s book Meltdown, which it’s safe to say is not a favorite of fascists.

I should add that anyone can attend these events (usually the student ones are free), and audio and video of many of them are posted online as well, so anyone who is interested can see what the Society is all about.

The Federalist Society also sponsors a law journal, The Harvard Journal of Public Policy.  A recent symposium on the financial crisis included an essay by Ron Paul attacking the Fed and one by Richard Epstein bashing Keynesianism and his colleague Richard Posner’s embrace of it.

I’m uncompromising in my libertarianism, but I see nothing at all wrong with conservatives and libertarians coming together in an organization like this to have their voices heard.  It’s not much different than the Libertarian Party teaming up with the Green Party to improve ballot-access laws to get a place at the table — though the Federalist Society seems like a more worthwhile endeavor, since it’s about ideas, not politics.

Which brings me to Roberts’s other claim: that the Federalist Society somehow “put” judges on the bench.  This is absurd.

I don’t know what basis Roberts could have for thinking the Federalist Society wields such power.  Undoubtedly many (but far from all) Republican judges have some connection to the Federalist Society, either as members or as speakers at past events.  But why wouldn’t they?  It’s the only national organization for conservative lawyers and law students out there.  And why would a Republican president need the Federalist Society to choose “fascist” judges for him?  Couldn’t he just pick them himself?  And isn’t he responsible for who he appoints in any event?  And aren’t there many political factors affecting who gets on the bench that have nothing to do with Federalist Society membership?  Like so many other alleged secret conspiracies, this makes no sense.

Libertarians should be glad the Federalist Society exists, and if they’re lawyers or law students, they should get involved and make sure the ideas that are important to them are part of the conversation.  If “fascists” would come to dominate it someday — which they certainly don’t now — it could only be because libertarians weren’t doing their job.

Today LewRockwell.com offers another excerpt from my book.  This one is about why government-funded school vouchers aren’t compatible with libertarianism. (Yesterday, LRC ran an excerpt about Ronald Reagan.)

I do understand why some libertarians like vouchers: they rightly feel bad for the actual, real-world children who are forced by law to attend horrible government schools, whose parents can’t afford other alternatives.  If the government is going to coerce people, it’s understandable to want to minimize the harm done.

But as I argue in the book, vouchers would do more harm than good.  Even if we can’t abolish government schools anytime soon, the best way to rescue as many kids as possible is through private, voluntary means.

Here are two more articles I’ve written on this topic:

• Independent Schools at Risk (The Freeman, September 1999)
• The School Voucher Myth (LewRockwell.com, January 1, 2003)

(Cross posted at my blog.)

At the beginning of his show this morning, Glenn Beck started ripping into the imam that all the talk-radio hosts love to hate, because the imam has (correctly) pointed out that the U.S. has killed many more innocent non-Muslims than al-Qaeda has.

Beck went on to defend the U.S. embargo against Iraq that killed hundreds of thousands of innocent people during the 1990s, argued that we should have fought the Iraq war “full on” from the beginning (meaning we shouldn’t have been so squeamish — as if “we” were — about killing innocent people), and claimed that the current U.S. government is the only one in the history of the world that has ever fought wars in a manner that avoided killing civilians.

Last year, Beck promoted a rally in Washington to protest the federal government’s taxing and spending.  This year, he’s holding a rally to glorify the U.S. military.  Can there be any doubt that by the time the Republicans regain control in Washington, Beck and his many followers will be right back where all the conservatives were during the George W. Bush years?  Only it will be much worse, because they’ll have much bigger, more powerful government at their disposal, which they will not reduce one bit.  And one shudders to think of what the apparent growing extreme, irrational hatred of Muslims may lead to.

Unless, that is, Ron Paul and other true libertarians can steer the Tea Party movement onto the right track before it’s too late.

As a good first step, it’s time for everyone — including some people who should know better — to stop suggesting that Glenn Beck is any sort of libertarian.

(Cross-posted at LRC and my blog.)

The furor over the “Ground Zero Mosque” (which is neither a mosque nor at Ground Zero) doesn’t make me very optimistic about the prospects for liberty.

As a libertarian and just a live-and-let-live kind of guy, I can’t imagine caring much about, let alone vocally protesting, what someone is building two blocks away from me.

Yet apparently many of my fellow Americans are such busybodies that they’ll whine for weeks about something being built hundreds or thousands of miles away from them, in a city where they don’t live and probably won’t even visit. And many of the complainers are among the Tea Party set whom we are occasionally told are “libertarian,” even though they seem to hate Muslims and Mexicans and love war at least as much as they hate the federal government and love liberty.

Jonah Goldberg claims that the conservatives who object “mostly” recognize that the Muslims have a legal right to build their center. But what I hear on talk radio makes me doubt this. A common argument there seems to be that since “liberals” don’t care about the constitution or property rights in general, they aren’t entitled to invoke them now — as though liberals somehow have the power to waive Muslims’ rights.

In any event, even if Goldberg is correct, it’s hard to imagine that the spirit of liberty resides in the sort of people who get so worked up over this sort of thing. The ease with which they’ve been distracted by this issue suggests that reducing government isn’t going to be their top priority once their team is back in control in Washington.

(Cross-posted on my blog.)

The publication of my new book, Libertarianism Today, has given me an opportunity to appear on several radio shows to talk about libertarianism.

On August 4, I was on the nationally syndicated Michael Smerconish Program with guest host Brian Wilson.  Highlights of this interview include our discussions of education (at 27:00) and intellectual property (at 30:00).

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On August 10, I was on Wilson’s own show:

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And on August 2, I was on Antiwar Radio with Scott Horton, where we talked about libertarianism and war:

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