Stephen Cox has an excellent review in the latest Liberty of Henry Mark Holzer’s recent book The Supreme Court Opinions of Clarence Thomas, 1991–2006: A Conservative’s Perspective. Cox’s review, entitled The Constitution and Its Emanations, does a good job of skewering the dishonest, confused, results-oriented libertarian critiques of Supreme Court jurisprudence; he sounds suspiciously like a decentralist libertarian, as well. Note, e.g., the distinction Cox makes between “result libertarianism” and “process libertarianism”:
My money is with the process libertarians. I believe that the practical losses one may suffer by being on their side are vastly outweighed by the practical gains. State constitutions are strong on certain individual liberties, and the federal Constitution is in most respects a model of libertarian thought. To interpret these documents fairly, giving their words the sense that their authors intended, is good for the cause of liberty, in the short term, usually, and in the long term, almost always. Granted, the First Amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” comes far short of erecting a “wall of separation” between church and state (Thomas Jefferson’s phrase , not in the Constitution). But I’m not much troubled by “In God We Trust” on our coins, or the eye of God on the Great Seal of the United States. If you are, I think you’ve got too much time on your hands.
That last line is hilarious. Also:
It is simply breathtaking, the degree to which presumed supporters of civil liberties have gone in amending the Constitution by judicial interpretation. I am, by profession, a literary historian and critic, and I know I would be laughed out of my profession if, when I interpreted texts, I took the kind of freedoms with fact and logic that judges, lawyers, and professors of law routinely take when they interpret the Constitution. To preserve some minimal reputation for honesty, I try to make my interpretations represent the meanings that are actually present in the texts I study. I realize that good authors often create intentional ambiguities, and bad authors often create unintentional ones, but I make every attempt to avoid replacing even those ambiguities with the meanings that I myself would prefer to see.
If only more con law professors had as much common sense.11:15 am on April 23, 2007 Email Stephan Kinsella