Libertarians and Liberals

It is a peculiar characteristic unique to our country that Americans talk about political issues in constitutional terms, thereby turning every policy debate into an argument over basic principles.  That was my thought when I read about Senate candidate Rand Paul and his “Constitutionalist” view that the federal government has no right to dictate the behavior of private enterprises.  Mr. Paul came under fire last week for suggesting that the Civil Rights Act of 1964 went too far when it prohibited discrimination by private businesses.  You can read more here (astute students in my Constitutional Law class will observe that Mr. Paul inspired one of the questions on my final exam this year).

Paul objects to federal policies regulating business due to his reading of the U.S. Constitution.  His political philosophy might best be characterized as extreme libertarianism.  Following the objectivist principles of Ayn Rand, he argues that the public should be left to their own devices and that greater social benefits will accrue naturally over time from the enlightened (and rational) self-interest of individuals.  Ironically, Paul’s embrace of self-interest as a moral good in itself is directly at odds with the view of the Framers of the Constitution.  The people who designed our constitutional system spent much time criticizing the biases, prejudices, and self-interested motivations of the general public.  The system of government that they created was intended to ameliorate the very aspects of human nature that objectivists like Rand Paul celebrate.

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Arizona’s Big Mistake

Arizona recently passed into law provisions that make a person’s illegal presence in the state of Arizona — currently a civil violation under federal law — a crime under state law.  The Arizona law also provides for the arrest of persons where the police have a “reasonable suspicion” that the individual is unlawfully present and where the individual cannot produce the proper documentation.  Last minute changes  were made to the law this past Friday in order to prohibit the use of racial or ethnic profiling by police in determining who to stop and question, and to clarify that questions about an individual’s immigration status should only be asked as part of an investigation of non-immigration related violations.  These changes to the original language were made to try and stave off several threatened lawsuits intended to challenge the constitutionality of the Arizona law.  

These changes to the law may diminish the likelihood that the Arizona state statute will be found to violate the Fourth Amendment and the Equal Protection Clause.  However, the most likely ground for a ruling that the Arizona law violates the Constitution was, and remains, that any state attempt to regulate the border is preempted by the pervasive scheme of federal immigration legislation.  While many observers will anxiously await the outcome of these constitutional challenges, it is important to recognize that there is a separate and more fundamental reason why the Arizona law is a mistake.  The law perpetuates a trend by our elected officials, identified by Professor Jennifer Chacon and others, that mistakenly conflates the criminal law with immigration law.  The convergence between these two separate areas of the law began in the 1990s and gathered momentum after September 11, 2001.  This process needs to be stopped and reversed.

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Who Will Replace Justice Stevens?

The legal community is still digesting the news that Supreme Court Justice John Paul Stevens will retire at the end of this term.  The New York Times recently ran a profile of Justice Stevens consisting of the recollections of his former law clerks.  Here is the link, in case you missed it.  Justice Stevens was never considered one of the intellectual heavyweights of the Supreme Court, but I predict that we will come to miss his consistent, and traditional (some might say quaint), view of the limited role that the judiciary should play in crafting the laws that we live by.

Speaking of predictions, it is time to weigh in with your prognostications.  Who will President Obama select to replace Justice Stevens.  I will go first.

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