From the category archives:

U.S. Constitution

Fighting for Food-Truck Freedom

by Jacob Huebert on August 18, 2012
in Economics, Law, U.S. Constitution

My colleagues and I at the Liberty Justice Center recently filed a lawsuit against the City of Evanston, Illinois to challenge the city’s food-truck law, which says that you can only operate a food truck in Evanston if you also own a brick-and-mortar restaurant there.  Obviously, that rule serves just one purpose: to protect restaurants from competition.

Watch the video about our client, Beavers Coffee + Donuts, and the case:

You can also read about the case in the Chicago Tribune and the Chicago Sun-Times. And here’s the Complaint filed in the Cook County Circuit Court.



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Talking About ObamaCare on WMAY Radio

by Jacob Huebert on July 1, 2012
in Law, Media, U.S. Constitution

Today I talked about ObamaCare with liberty-friendly radio host Greg Bishop on WMAY radio in Springfield, Illinois. We talked about the individual mandate and the so-called “tax” it imposes, but we also focused on the relatively overlooked provision of ObamaCare — which the Supreme Court partially struck down — that would have forced states to greatly expand their Medicaid programs to cover many more people.

Jacob Huebert on Saturday Session with Greg Bishop 6.30.12

The Medicaid expansion would not only harm taxpayers at the state and federal levels, it also would hurt the poorest people who currently depend on Medicaid by making it harder for them to get care as they compete for limited resources with all the new people in the system. In other words, the Medicaid mandate would cost taxpayers a lot, and it would hurt the people it’s supposedly intended to help. Fortunately, the Supreme Court said the federal government can’t make the states participate in this expansion, and in the interview we discuss why they can and should opt out.

I gave this interview on behalf of my employer, the Liberty Justice Center, a public-interest law firm that fights for liberty in the courts. As usual, the views I express otherwise on this website are my own, not necessarily those of any organization.



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Book Review: Liberty of Contract

by Jacob Huebert on June 28, 2012
in Law, U.S. Constitution

Last year saw the release of two books on the U.S. courts’ history of (not) protecting the liberty of contract: David Bernstein’s Rehabilitating Lochner and David N. Mayer’s Liberty of Contract: Rediscovering a Lost Constitutional Right.

My review of Bernstein’s book appeared in the Winter 2012 Independent Review; my review of Mayer’s book has just been published in The Freeman.

Which book is better? I couldn’t say. Both cover a lot of the same ground, and both are well-done. (Oddly, both were published at about the same time, and both appear to have been sponsored by the Cato Institute, though Bernstein’s book was published by the University of Chicago Press.) I recommend either or — if you really want to be an expert on all facets of New York v. Lochner and the courts’ inconsistent protection of economic liberty — both.

Here’s an excerpt from my Liberty of Contract review:

The U.S. Supreme Court has no coherent ideas about—or real respect for—individual rights. It generally allows governments to do whatever they want, with limited exceptions for a handful of rights it has deemed “fundamental,” such as the right to free speech (in some areas) and the right to sexual privacy (in some respects). Other rights, such as the right to economic liberty, receive almost no protection at all.

Why so much protection for some rights and so little for others? Because the Court has arbitrarily said so.

Libertarians, of course, think differently about rights. Libertarians think that our rights exist independently of government, and that if government has any legitimate purpose at all, it is to protect those preexisting rights.

Libertarians also think that all our rights are really property rights. We each own ourselves, and from that follows a right to own private property that we acquire through voluntary exchanges with others. Other rights, such as the right to free speech, derive from our right to use our own property as we see fit. And the right to economic liberty—that is, to trade your property and your labor freely with others—is just as “fundamental” as any other right.

In Liberty of Contract: Rediscovering a Lost Constitutional Right, law professor and historian David N. Mayer shows how Americans went from embracing the libertarian conception of rights reflected (imperfectly) in the Declaration of Independence to the statist conception of rights reflected in modern Supreme Court decisions.

Read the rest.



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I wrote a brief summary of why the ObamaCare individual mandate violates the Constitution for the Illinois Policy Institute’s blog. Here’s what I said:

On Tuesday, March 27, the U.S. Supreme Court will hear arguments on the most controversial part of ObamaCare: the “individual mandate,” which requires that everyone not otherwise covered purchase government-approved health insurance.

The government claims that the individual mandate is constitutional because it falls under Congress’s power to regulate interstate commerce. In an amicus brief filed by the Illinois Policy Institute and like-minded organizations across the country, we argue that the law is far outside Congress’s constitutional authority and must be struck down.

Supreme Court decisions since the New Deal era have held that the Commerce Clause allows Congress to regulate virtually any human activity that affects commerce. For example, in the notorious case of Wickard v. Filburn (1942), the Court decided that the federal government could penalize a farmer for growing wheat on his own land for his own personal use.Because Mr. Filburn grew his own wheat, he would buy less wheat from others, so the Court concluded that his actions affected the national market for wheat and were therefore subject to federal regulation.

Wickard was a gross abuse of the Commerce Clause.As Professor Randy Barnett has shown, in the founding era, “commerce” only referred to shipping and trade, and “regulate” meant “to make regular” – that is, to specify how an activity related to trade and shipping may be done. The Commerce Clause was never meant to allow regulation of all economic activity – but in the years since Wickard, that’s essentially what the Supreme Court has said.

Even so, the ObamaCare case is different from all cases that have come before, and the individual mandate should be struck down even if we accept (for the sake of argument) the Supreme Court’s decades of liberal precedents. Here, the government isn’t punishing an activity (like growing wheat); it’s punishing inactivity – people’s decision not to buy health insurance. The Supreme Court has never said that this is within Congress’s power.

In a sense, it’s true that people who decide not to buy insurance “affect” commerce: The markets for insurance and health care look at least slightly different than they would if those people decided to buy it.

The trouble is, if we accept that reasoning, it follows that Congress can force us to do virtually anything. When we choose to do a particular activity, we implicitly choose not to do the infinite other things we could be doing instead. By choosing not to do those things, we are, by the government’s logic, “affecting” commerce. And, by the government’s logic, the Commerce Clause gives Congress the power to force us to do any of those countless things we are choosing not to do. That means the government could force us to buy Chevy Volts or gym memberships, or could even force us to eat the foods it thinks are best.

That can’t be right. The Constitution’s framers intended the federal government to be one of limited, enumerated powers. If they had wanted to create the unlimited government that the Obama Administration seeks, the framers wouldn’t have given Congress just 18 specific powers, and they wouldn’t have made clear in the Tenth Amendment that all other governmental powers belong to the states.

So the ObamaCare case is important not just because of the huge harm the law would cause to people across Illinois and the nation; it’s important because the Court will have to decide whether the federal government will have any limits at all on its power in the 21st century.

As always, the views I express otherwise on this site are my own, not those of any organization.



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Book Review: Rehabilitating Lochner

by Jacob Huebert on December 19, 2011
in Law, U.S. Constitution

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.



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The video of my speech a the Nullify Now event in Cincinnati is now online. I talk about nullifying the PATRIOT Act, nullifying TSA tyranny, and, most importantly, nullifying the State in your own mind.

If you’re anywhere near Austin, Texas, be sure to check out the Nullify Now event there on April 16.  I won’t be at that one, but you’ll get to hear Tom Woods, the Tenth Amendment Center’s Michael Boldin, the Foundation for a Free Society‘s Jason Rink, Oath Keepers founder Stewart Rhodes, and other great libertarian speakers.

As for me, I’ll be at the Mises Circle in Chicago this weekend, and then giving a talk calling for the abolition of copyright and patents at Whittier Law School in Costa Mesa, California on April 14.

UPDATE:  Read the speech at LewRockwell.com.  



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What should libertarian legal scholars study?  What kind of work can they do that will be respectable to their colleagues in academia while advancing libertarian ideas?

I offered my thoughts on this in a short talk at the 2010 Austrian Scholars Conference at the Mises Institute.  For some reason, I didn’t link to the audio when it was first posted, but here it is now:

Jacob Huebert on “What Should Libertarian Legal Scholars Study?” at the Austrian Scholars Conference, 3.13.10

And here’s a YouTube version:



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Is the Federalist Society Evil?

by Jacob Huebert on September 3, 2010
in Law, U.S. Constitution

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.



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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 they don’t live in 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.



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These quotes from 1976 and 2010 (via “Snowflakes in Hell“) suggest an answer.

Then:

“Our ultimate goal — total control of handguns in the United States — is going to take time. My estimate is seven to ten years. The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors-totally illegal.”

–Pete Shields, July 1976, President of National Coalition to Control Handguns (which later became Handgun Control Inc. and then the Brady Campaign)

Now:

“It is settled law. If I were taking a law school exam today, I would say, yes, you have got an individual right to have a gun in your home for self-defense.”

– Paul Helmke, President of the Brady Campaign, June 28, 2010



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