by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Libertarian legal theory, also known as classical liberalism, presumes that the individual is sovereign and not the state. It claims Jefferson’s mantra that the best government is the least government, and regards the state as merely one of many institutions voluntarily created by individuals in order to preserve our freedoms.
The classical liberal argument reflects the historical truism that the Constitution was written in order to create a limited central government whose core purposes were to facilitate a common defense against outside forces of violence and to maintain a free market among merchants and consumers in different states. At the same time, the express intention was to keep the government off the people’s backs by recognizing that areas of human behavior—what we call natural rights—are largely immune from government’s authority.
Classical liberalism has come in for hard times over the past 100 years. …
… At the core of the analysis is the basic argument that contemporary government no longer protects freedom. Oh, some freedoms are overtly protected, like speech, press, and worship; but the freedom to use, enjoy, and control private property is not.
The courts have crafted a very high bar that the government must meet to infringe upon civil liberties—and an out-of-whole-cloth low bar that the government can easily meet to justify infringing upon economic liberties. How can any judge claim that one freedom is entitled to more protection from the government than another? Their efforts to do so fall victim to Epstein’s razor-sharp intellectual scalpel as he undermines their rationales and exposes the loss of procedural protections they have orchestrated.
If the vector of progressivism continues unabated, if the train of big government cannot be slowed, the author warns, the decades to come will make the past century look positively Jeffersonian in comparison. While terrifying, that prediction is not a stretch.
“The blunt truth,” concludes Epstein, “is that a strong embrace of the classical liberal constitution offers the only sure path to rejuvenation of America’s constitutional and political institutions.”