1. The genuinely realistic postmodern conservatism, from one view, is somewhere in between the Porcher and Libertarian EXTREMES. That true but precarious position, as Ralph has shown us so eloquently, eludes theoretical articulation. For most practial purposes, as I tried to add, it points in the direction of compromise.
2. So we postmodern conservatives are somewhat concerned about the excessive libertarianism of the TEA PARTY candidates in the various Republican primaries. If I could have voted in the Republican primary in Kentucky, for example, I would have voted for “the other guy.” That is, I wouldn’t have voted for the theoretical [libertarian] opthamologist Dr. Rand Paul.
3. Dr. Paul suggested, both imprudently and falsely, that THE CIVIL RIGHTS ACT OF 1964 is unconstitutional. That libertarian stand discredited the presidential candidacy of Goldwater [who later on revealed to us how libertarian he really was] by making it too easy to dismiss him as an extremist who preferred abstract liberty to the decency of racial equality and justice.
4. In general, tutored by TV’s Professor Beck, we’re hearing that true conservatives should regard the New Deal etc. as unconstitutional too. It’s become fashionable to harp on the Progressive narrative from Woodrow Wilson to Lyndon Johnson as the key to what has derailed our country. The implication is that our Court abdicated its responsibility by not declaring the regulatory administrative state unconstitutional.
5. Maybe we should remember, to begin with, that THE CIVIL RIGHTS ACT OF 1964 was a legislative accomplishment. And its intention was to extend the colorblind spirit of the original Constitution to areas that could reasonably be regulated by government. It was the one time our national government interpreted the Constitution correctly with respect to race. It was the mean between the segregation that preceded it and the affirmative action that succeeded it. It was better than BROWN in both its intention and its outcome. Of course an error was made insofar as its constitutionality was thought to flow from the Commerce Clause instead of the broad powers granted Congress by the Fourteenth Amendment in pursuit of the destruction of the racist regimes of the states. But that misplaced justification, remember, was thought to be necessary in response to what almost everyone now regards as erroneous Court decisions.
5. More generally, it’s a libertarian error to believe that we can look to the Court to protect us from the excesses of the regulatory state. And the truth is that it’s a matter of prudence to know what those excesses are. No candidate is going to get elected campaigning against the constitutionality of SOCIAL SECURITY and MEDICARE. The real debate is over how to make them demographically sustainable, and even on that score it’ll be really hard to tell the truth.
6. The “Progressive erosion of our freedom” narrative oddly seems to jump these days from LBJ to Obama. None of the presidents in between those two very liberal Democrats fit the Progressive mold, and their successes and failures have to be viewed according to a different model. And when I think about the Sixties, I can’t help but remember that devotion to Civil Rights was one thing really good about LBJ, and someone might say that he played a significant part in creating a country that elected an African American president.
7. The general presumption of liberty doctrine found in LAWRENCE and loved by libertarians such as Randy Barnett is very flawed, insofar as it is a guide for judicial review. The Court (as the first Justice Harlan said in the neglected moderate dissent in LOCHNER) usually should give the benefit of the doubt to the law, as is appropriate in a democracy where principles have to be compromised prudently in the face of complicated and often unprecedented situations. Remember that Randy is both pro-LOCHNER and pro-ROE. In my view he’s 0 for 2.