Conservatives on Boumediene

As the right-wing response to Boumediene becomes increasingly crazed, there are some sane and measured conservative voices out there. And yes, my choice of “right-wing” for the crazies and “conservative” for the rational responses is intentional.

First up, George Will, commenting on John McCain’s extraordinary outburst in which he called the Guantanamo decision “one of the worst in the history of this country.”

Does it rank with Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the constitutionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?

Did McCain’s extravagant condemnation of the court’s habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court — meaning, which candidate would select the best judicial nominees — a campaign issue.

The decision, however, was 5 to 4. The nine justices are of varying quality, but there are not five fools or knaves. The question of the detainees’ — and the government’s — rights is a matter about which intelligent people of good will can differ.

Next, Ann Althouse deconstructs John Yoo’s Wall Street Journal op-ed, point for point. Here is her takedown of Yoo’s thundering about the SCOTUS majority’s “judicial supremacy.” First, the relevant Yoo quote, then Ann’s reply:

Justice Anthony Kennedy — joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer — saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.

Saves his claims of judicial supremacy? If you’re going to use that inflammatory term, why don’t you think it applies just as well to striking down the Gun Free School Zones Act and those attempts to abrogate sovereign immunity? (Justice Kennedy was in the majority in those cases.)

Courts interpret statutes and constitutional provisions and, in case of conflict, declare the Constitution the winner. To do that is to do what is required. It’s not a power grab. The real problem — and of course Professor Yoo knows this — is interpreting the Constitution too broadly so that it beats out a statute when it shouldn’t. That only deserves to be called “judicial supremacy” if the judge willfully expands the meaning of the Constitution to strike down a statute he doesn’t like.

So, really, to put it undramatically, it all boils down to whether the majority or the dissenters had the better interpretation of the Constitution. Yoo, not surprisingly, agrees with the dissenters. Since he also, I assume, approved of the statute, his agreement with the dissenters doesn’t test whether he’s above the “brazen power grab” he sees from the majority. He wants this statute to survive.

I did not realize (so it’s possible that others did not, either) that the Cato Institute, a conservative-libertarian think tank, filed an amicus curiae brief in Boumediene v. Bush. It was one of many — take a look at this list.

6 Responses to “Conservatives on Boumediene”

  1. Mark says:

    Although Will called Cato a “conservative-libertarian” think tank, I don’t think you will find many (read: any) at Cato who consider themselves conservatives. The organization is explicitly and entirely libertarian in its goals and focus, and you will not find much love there for either George W. Bush or John McCain. As such, it was only natural for Cato to file an amicus brief in this case since civil liberties are absolutely central to any concept of libertarianism. You see, we libertarians really aren’t so bad!

  2. Kathy says:

    Actually, I called Cato a conservative-libertarian think tank, not Will. I was hedging my bets, because I knew it was libertarian and libertarian is often indistinguishable from conservative (at least, conservatives as they used to be).

  3. Mark says:

    Actually, Will did call Cato conservative and libertarian. But that doesn’t really matter much.
    While I understand that libertarians are perceived as near-identical to conservatives (or at least old school conservatism), it’s important to note that we are, in fact, extremely different. It’s just that for a long time allying with conservatives made a lot of sense for us. But ideologically, there have always been clear philosophical differences to the point that the libertarian giant Hayek was compelled to write a legendary (in libertarian circles) essay entitled “Why I Am Not a Conservative” in the early ’60s. In that essay, he discussed how libertarians/classical liberals would ultimately need to align with Progressives. I’ve been an advocate suggesting that time is almost (but not quite) now. Either way, our alliance of convenience with conservatives ended by the 2006 elections when we just about split our vote between the Dems and Republicans. Right now, we’re political free agents.

  4. Mark says:

    One more thing on this point, since I just saw it from Andrew Sullivan and it is directly relevant here. Brink Lindsey of Cato is now apparently arguing that left-leaning judges may be more desirable from a libertarian perspective than right-leaning judges. Frankly, I suspect he may be right on that point. If Lindsey represents a trend on that point, and I think he does, then the case for a libertarian-Progressive alliance of sorts just received a massive boost.

    Add to that the broad alliance Glenn Greenwald is assembling on the FISA issue against Steny Hoyer & Co’s sell out. If that campaign is successful (and in its first 24 hours it is showing a lot of promise) then it could result in Dem politicians having a stronger backbone on civil liberties issues, which will do a lot to attract libertarians into the coalition of the Left.

    FWIW- whenever I refer to “libertarians,” it is to voters whose beliefs are roughly libertarian, not to people who are affiliated with the Libertarian Party. Depending on the specificity of your measurement, these “libertarians” make up anywhere between 6 and 20% of the electorate. Under the measure that showed “libertarians” split their vote in 2006, I believe something like 12% of voters qualified as “libertarian.” If the Dem Party were to get the support of 2/3 of those voters by including them in their coalition, it would amount to a swing in the Dem Party’s favor of about 4 points over the 2004 Presidential election, maybe more. That suddenly makes the Dem coalition very formidable indeed. And the issues that would be necessary to achieve that swing are issues that are consistent with most Dems’ beliefs- civil liberties, due process, and a less interventionist foreign policy. In other words- the Dems just need a leadership that has an actual backbone.

  5. Kathy says:

    FWIW- whenever I refer to “libertarians,” it is to voters whose beliefs are roughly libertarian, not to people who are affiliated with the Libertarian Party.

    That’s interesting… maybe that’s one of the reasons “conservative” is often conflated with “libertarian”? Is the Libertarian Party more traditionally conservative than are voters whose beliefs are libertarian?

    Another reason for the confusion — on my part, at least — is that I have known (in the sense of talking to on the Internet) many self-defined libertarians who, when I would get into actual debates with them, would turn out to hold beliefs that, from the little I know of libertarianism, are more neoconservative than libertarian — like support for Bush’s war policies, surveillance, the Patriot Act, etc.

    It’s also (mildly, maybe only to me!) interesting that I didn’t notice (or forgot) that George Will had identified Cato as conservative and libertarian, and yet I defined it the same way. I was actually hesitating to do so because I wasn’t sure if it was conservative as well as libertarian, and even though I did decide to use the term conservative-libertarian, obviously if I had remembered that Will himself had defined it that way, I would not have had that hesitation.

  6. Mark says:


    Your confusion is understandable – thanks in part to the Bushies, the word “conservative” – and especially “neo-conservative” – has become a perjorative in much the same way that “liberal” became a perjorative in the ’80s. The result of this has been that a lot of Republicans, especially younger Republicans, have taken to calling themselves “libertarian” simply because they figure being pro-free trade, anti-tax, anti-earmark, and (sometimes) pro-pot/pro-porn makes them libertarian. Included in this group are also a bunch (but not all) of Objectivists and fans of Ayn Rand (this is not a knock on Rand, but rather this particular group of fans, although there is still much that even many libertarians would criticize about Rand), who among other problems: A. have little conception of Rand’s views on foreign policy, B. have no understanding that they are supporting the very “crony capitalism” that Rand truly detested, and C. ignore the fact that Rand specifically denied that her philosophy was libertarian (even though her books are the most influential foundation of libertarianism). In essence, they accept (kinda sorta, but not really) libertarian economic views, but utterly and completely reject libertarian views on social and foreign policy issues. Only rarely have these self-described “libertarians” read and understood Hayek and, yes, Friedman (though they love to cite them, causing the political Left to associate Hayek and Friedman with positions they did not take).

    One of the big problems is that some of these people actually may have once been libertarians philosophically; the problem is that they have spent so much time as part of the coalition of the Right that they do not think independently but instead simply believe whatever the Republican establishment wants them to believe. In essence, in order to maximize their influence on Republican economic policy they have subconsciously compromised their principles on just about everything else (this is, btw, what happens to any group that seeks to influence a coalition so it’s not unique to libertarians). I should know – for about five years I was one of them, and I am frankly ashamed of a lot of the things I believed during that time period.

    You should know that libertarians are, generally speaking, extraordinarily contentious, and you will never get two libertarians to agree on all issues. Indeed, our two flagship institutions, Cato and the Mises Institute, have a feud going back to their inception that makes the relationship between Larry Johnson and Obama-ites look positively friendly. So, it’s not a good idea for me to claim that there is a litmus test that you can use to tell whether or not someone is libertarian. But, broadly speaking, to be a true libertarian you must have a profound distrust of authority of any sort. What this means is that if you distrust Congress or the courts, but think that a President can be entrusted with virtually unlimited powers as long as there is a “threat” to national security, then you are not a libertarian. (However, it’s possible to be a true libertarian and have a certain level of trust in the courts, provided that trust is limited to the ability of courts to safeguard against the growth of authority).

    If you could boil libertarianism down to its most pure form, it could be expressed in two words: “No Coercion.” Of course, most libertarians are not quite that pure since we usually accept the idea of some minimal government involvement in various areas- hence the reason it’s so hard to get libertarians to agree.

    As for the LP being a “conservative” institution, I’m not sure where you get that from. To be sure, the party usually nominates people from the “right” of the libertarian movement, but never would they fit comfortably within the Republican Party or modern conservatism. Even Bob Barr, despite his reputation as a conservative icon, only became an LP member after he had become an outspoken opponent of the Patriot Act, had denounced a big chunk of DOMA (which he originally sponsored), denounced the War on (some) Drugs, and became the nation’s highest-profile lobbyist for medical marijuana. Even after all that, he came within a few dozen votes of losing the party’s nomination because so many party members were unwilling to forgive him for his previous actions as a conservative Congressman.

    To bring this unbelievably long comment to a close: libertarians are proud to be classical liberals in every sense of the word – we trace our lineage through Hayek, Mencken, Thoreau and Emerson, Patrick Henry and Thomas Jefferson (as well as Madison, but definitely NOT Hamilton), Adam Smith, and John Locke. Hayek himself hated the word “libertarian” and much preferred the word “liberal” but found that he couldn’t use that word because it had become synonymous with a form of socialism that all but a few modern Progressives have abandoned. On foreign policy, most libertarians are nowadays closely aligned with most Democrats (though pointedly not the Dem Party leadership that is still scared of its own shadow); on social issues, most libertarians are to the left of all but the most liberal Democrats since we want to completely end the War on (some) Drugs and are usually (not always) militantly in favor of equal legal rights for gays (although we have a major problem with the Dems’ authoritarian positions on guns, smoking, and affirmative action – but we can probably overlook those things for the short term). On civil liberties, the vast majority of us are again in lockstep with most Dems (but again not the Dem leadership who has no backbone), although I admit that too few of us have committed the resources to the fight for civil liberties that Progressives have committed. On environmental policy, we are still much more closely aligned with the Republicans, but even there an increasing number of libertarians are acknowledging the problem and getting engaged on the issue (see the debate in Reason magazine this month). Our major problem with the Dems and the American Left (and the reason why Obama needs to get a better response to the ridiculous accusations that he’s a Marxist/socialist) is on economic policy. But even there, the Right has abandoned its former high ground with its support of a massive, costly, and seemingly endless war, huge new entitlement programs, and corporate welfare just as the Left has become increasingly pro-free trade and fiscal responsibility.

    Don’t get me wrong – this last is still a MAJOR problem for most libertarians, particularly in light of the connection that Hayek observed between social/civil liberties and economic policy. Even for me, who is quite pro-Obama, it is enough of a stumbling block to prevent me from voting for him this year as long as there is a credible LP candidate. But if there were not a credible LP candidate this year, I would definitely vote for Obama. However, I suspect that Obama will get more libertarian votes this year than McCain – as Jonah Goldberg pointed out the other day, most of the “Obamacans” come from the libertarian wing of the Reagan coalition. I also suspect that a President Obama will pleasantly surprise a lot of libertarians on economic issues (he won’t be a libertarian by any means, but he won’t be nearly the statist many fear), thereby completing the movement of libertarians to the Dem coalition in the 2012 elections.

    I apologize for the lengthy comment – but as I’ve said elsewhere, I believe that a Progressive-libertarian alliance makes a lot of sense for both sides. But in order for that to happen, libertarians need to purge ourselves of the stink of the Republican Party, which means explaining that we are not now and never have been conservatives.


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