from
http://www.lewrockwell.com/huebert/huebert12.html

Alito and State Power

As others have observed, Samuel Alito has spent his entire adult life working for the federal government. Here again is his resume before becoming a judge:

Law clerk, Hon. Leonard I. Garth, U.S. Court of Appeals, Third Circuit, 1976–1977

Assistant U.S. attorney, District of New Jersey, 1977–1981

Assistant to the U.S. solicitor general, U.S. Department of Justice, Washington, DC, 1981–1985

Deputy assistant U.S. attorney general, U.S. Department of Justice, Washington, DC, 1985–1987

U.S. Attorney for the District of New Jersey, 1987–1990

Except for the clerkship, each one of these positions involved nothing but full-time advocacy for maximum federal government power. That's what U.S. Attorneys do: look for as many ways as possible to put as many people as possible in prison, as often as possible, for as long as possible.

Does that sound like the career choice of someone who would limit government from the bench? Or does it sound like someone who is going to side with government thugs against the individual more often than not?

Consider this passage from a recent Slate investigation of Alito's decisions:

Alito sat on a dozen panels in which judges disagreed regarding a citizen's Fourth Amendment rights. In each of those cases, Alito adopted the view most supportive of the government's position. Alito would have upheld the strip searches of an innocent 10-year-old girl, dissenting from the opinion by the well-known civil libertarian Homeland Security Secretary Michael Chertoff. Alito crossed swords with two Reagan appointees in arguing that a jury shouldn't decide whether a police officer lawfully allowed his men to push to the ground, handcuff, and hold at gunpoint another innocent family. That case was echoed three years later when Alito, this time writing for a majority, found that in the course of an eviction, marshals could reasonably pump a sawed-off shotgun at a family sitting around its living room.

Given Alito's apparent lack of originalist credentials, maybe this is why Mr. Shapiro is so enthusiastic about him. After all, Mr. Shapiro is an avowed fan of the police state – witness here his defense of the idiotic and tyrannical New York City policy of randomly searching subway passengers, titled "This is a war, blockhead." He says in concluding that piece:

Myopic civil libertarians ignore the simple fact that effective law enforcement is the best way to promote civil liberties. If we live in a safe, secure country – if we rid ourselves of threats domestic and foreign – there is no need for harsh safety precautions. Habeas corpus was restored after the Civil War. Free speech protections were strengthened in the aftermath of World War I. Japanese internment ended after World War II. Temporary safety measures remain in force only as long as safety is threatened. If civil libertarians undermine such measures, they threaten our safety – and temporary measures become more and more permanent. The only way to fully restore civil liberties is to defeat our enemies.

Conclusion

Benjamin Shapiro and "the greatest president of the 21st century" want conservatives to believe that Samuel Alito is the kind of constitution-respecting originalist we arguably got in Clarence Thomas, or is at least as good as Antonin Scalia (who, by the way, proved himself to be not much of an originalist at all in his Raich v. Gonzales opinion allowing the federal government to prohibit medical marijuana use under the Commerce Clause).

The evidence, we have seen, does not support these claims. Instead, the evidence shows Alito to be exactly the sort of judge we would expect George W. Bush to appoint: in the words of his Princeton classmate Judge Andrew Napolitano, "a big government conservative who will almost always side with the government against the individual, and the federal government against the state."

Hmmmmm.....I'll reserve judgement on that one. However, since he has been nominated by a president who has had a history of ignoring a number of Constitutional ammendments, (the First comes to mind), I have serious doubts.

Anyone who believes that Bush would nominate a person for the Supreme Court that is a libertarian or even libertarian leaning is very naive and delusional.

I believe that Samuel Alito does have a libertarian streak along with a conservative one. I believe he is an originalist like Antonin Scalia, Clarence Thomas, Robert Bork, Lino Graglia and Janice Rogers Brown(whom I would have preferred to have been chosen).

I believe also that he will be confirmed to be an Associate Justice to the U.S. Supreme Court. I believe he will be a good addition to the court and I believe he will surprise many including my fellow libertarians.

"Alito sat on a dozen panels in which judges disagreed regarding a citizen's Fourth Amendment rights. In each of those cases, Alito adopted the view most supportive of the government's position. Alito would have upheld the strip searches of an innocent 10-year-old girl, dissenting from the opinion by the well-known civil libertarian Homeland Security Secretary Michael Chertoff. Alito crossed swords with two Reagan appointees in arguing that a jury shouldn't decide whether a police officer lawfully allowed his men to push to the ground, handcuff, and hold at gunpoint another innocent family. That case was echoed three years later when Alito, this time writing for a majority, found that in the course of an eviction, marshals could reasonably pump a sawed-off shotgun at a family sitting around its living room."

yep, sounds like a libertarian to me....

question: have the Kochtopus boys been in DC so long that they're going native by smoking rocks soaked in PCP water?

It doesn't look like he is very libertarian. But, does it really matter? No point in worrying about it; there isn't anything that can be done anyway.

During the confirmation hearings the blues will ask some questions. The reds will throw some meatballs masked as tough questions. In the end, the blues will muster up enough votes to confirm him. They don't want to give the reds the battle that they need... reds are at their best when battling. (anyone remember the old slogan: better dead than red?)

He has a strong resume for 'sloppy seconds'. Just remember that Harriet Myers was 'the most qualified' dubya could find.

I think the point was Judge Alito many times supports state's rights and the Constitution no matter what his own beliefs are. Libertarians who are always wanting to "bring back the Constitution" will surely find the Constitution may not overturn state and local laws that a libertarian would oppose. After all, one could
argue correctly that the Dred Scott decision followed the Constitution, even if one happened to
be an abolitionist.

so basically he is an authoritarian constitutionalist, not a libertarian.

http://radgeek.com/gt/2005/09/17/international_ignore

I may sound a tad naive, but, isn't it the job of Supreme Court Judges to uphold the constitution, and declare laws unconstitutional/constitutional? I mean, shouldn't we then be pushing for a person who follows the constitution comma to punctuation mark? That would be the point.... right?

Bork is a grade A nut job. Alito shouldn't even be put in the same category.

Randy Barnett is an original-meaning originalist advocating a libertarian juriprudence (see his recent book). In dealing with constitutional cases where the application of a governent power is applied in a way that implicates/threatens liberty interests and where the constitutionality of the use of that power is challenged by the litigants, Barnett convincingly argues for the Court's application of a presumption in favor of the liberty interest instead of a presumption of constitutionality of the rule/statute/regulation in question.

Alito, on the other hand, is pretty much a strict contortionist/traditionalist, but a fair-minded jurist (I have argued cases before his court). He applies the standard methods of constitutional analysis, leaving large sections of the constitutional out completely and rendering others (especially the liberty recognizing and rights-enforcing sections) non-justiciable (like the Ninth Amendment and the Privleges or Immunities clause of the 14th Amendment). Alito is your standard-issue Footnote-Four-Plus jurist, applying the traditional presumptions in favor of constitutionality and against liberty.

Alito shows no particular interest in bringing a much-needed original-meaning originalism methodology to the Court. So while it is true that we might get a few decisions that may vary from Scalia's in the area of federalism in the right direction and might sound more than Thomas', over the long run (unless he has some kind of originalist epiphany), Alito is likely to have/maintain a status quo attitude toward the application of the most significant liberty-protecting sections of the Constitution.

Alito has been following constitutional precedent for his entire career, and nearly slavishly so. And he is unlikely to fashion a line of cases or tradition that would challenge the power of the Imperial Presidency. While it is true that the Supreme Court changes everyone who sits on it one some degree or another, it seems unlikely that sea changes in this respect are likely to happen in Alito's case.

Let's face it . . . we are likely to get Alito, so all we can do is to hope that the works of constitutional scholars like Randy Barnett may influence him to make the changes in the proper jurisprudential approach we all know would result in a far more libertarian America.

I agree with R. Paul, and I would add that Cato agrees to. At the end of their article, they wrote: "Obviously, Alito is far from being an across-the-board libertarian. But there is much for libertarians to like in his record, more than in the case of Scalia."

I think that was Cato's point. They were comparing Alito to Scalia. They weren't saying Alito was libertarian.

Alito may be the best we can get, but he is not Libertarian. The current Law in the United States is not Libertarian; Even the Consitution is not Libertarian. Those texts serve purposes remote from the strict defense of indididual rights to life, liberty and freedom. The current set of laws is here to make sure that attacking those fundamental rights is legal. The current Law is here to make the "unjust" "legal" and therefore "just".
That Judge Alito, just like Roberts, is quite willing to take an active role in this Law is scary. That Bush, Republicans and Democrats support him proves the point. So, Alito is probably not the worst but he is not Libertarian.

Alito may not be as 2nd Amendment friendly as some would like you to believe...

http://www.reason.com/sullum/110205.shtml

Judge Alito's promotion to the Supreme Court will NOT be a good thing for those of us who believe in the Bill of rights. We need to come out in a unified way in opposition to his nomination. I am an attorney and have dealt regulsarly with Bush-appointed judges on the Courts of Appeal. It has not been a happy experience, and this one will be worse.

Andy M. can you provide specific examples of what you are talking about.
Thank you.

http://news.yahoo.com/s/ap/20051113/ap_on_sc/tangled_commute;_ylt=AorpI9MaiomnUoHVmxtUnays0NUE;_ylu=X3oDMTA3b2NibDltBHNlYwM3MTY-

Here is a another good example of how the government authorities in the LA area are willing to take a calculated gamble with the safety of their citizens in response to an overpopulation situation.

Wake up people, Bush wouldn't appoint a libertarian. He doesn't want to get Soutered.

Sorry to hijack, but I posted this on a forum you may be familiar with alreasy, and I think we as a party forget:

"[Name deleted}, you know what's really funny? We're considered (in many ways publicly) as a very "conservative" party.
By the far-right, we're thought of (and with good reason) as more "liberal" than the Democrats.

Truth is, we do conservatism, and liberalism better than the Republicans or Democrats could ever hope for while shooting for the middle.
(And we're neither. *wink*)"

Libertarian TV makes some valid points. Nevertheless . . .

Since the Court is not (or is not supposed to be!) a policy-making body, the Court's majority jurisprudence and reasoning in the context of deciding cases is far more significant to the libertarian cause than final decisions in any particular case or series of cases.

The authoritarian methodology and fair-weather/ crabbed interpretation and construction of the Commerce Clause, Spending Clause, General Welfare Clause and Necessary and Proper Clause employed by Alito in deciding cases is really no different than Justice Scalia's. There is no indication in any of his writing that he might be willing to toss the horrendous "substantially affects" test, a wholly illegitimate Court made construction of the Commerce Clause, and one constitutional aberration that has legitimized most of the illegtitimately accreted power of the Congress since the New Deal. Or any of the other liberty-limiting tests, for that matter.

It is true that in any given case, Alito may scrub and message the facts in a way that might result in a more-than-Scalia libertarian RESULT. This is particularly possible in areas where Court doctrine has been (un/under)developed since Uncle Ronnie appointed Mrs. Ad Hoc (Sandra Day and Night O'Connor) (a/k/a, The Balancing Test Queen). But cases like this tend to be those which do not set out bright-line rules of precedent to be followed in later cases of the same kind, but rather the results are dependent upon the facts of the inidividual case and the majority of justices' view of those facts: most notably in the areas of the Establishment Clause and Free Exercise Clause of the First Amendment and Takings/Inverse Condemnation (regulatory takings)cases. Real nightmares. That's by way of example, and not limitation.

Because the Court currently influences and impinges upon our daily lives in ways that would have turned even John Adams into a virtual whirling dervish of anger, we libertarians need to stop thinking of potential justices and other nominated judicial personnel as "acceptable" because they have decided cases whose results we can arguably call libertarian-leaning. The results in many individual cases, particularly in certain volatile areas of constitutional jurisprudence, are unimportant beyond the impact the decison has on the litigants themsleves.

To the extent that libertarians are involved in this endeavor at all (influencing the makeup of the judiciary), they need to locate and get behind potential jurists who adhere to the jurisprudential theories of Randy Barnett and other libertarian constitutional theorists of the same or similar stripe. If libertarians don't do this, who will?

If you really want something, you have to ask for it and work for it. And Alito ain't it, Roberts ain't it and Scalia ain't it. The closest thing to "it" on the Court is Justice Thomas, who has written some scathing and penetrating concurrences and dissents (where appropriate) calling for sweeping changes in current constitutional jurisprudence, most of which would inure to the benefit of liberty or at least less government than we currently suffer from.

This should be our focus, NOT the results in any given case. Remember, we are SUPPOSED to be the Party of Principle, so let's stay focused upon the appointment of judges who support and defend a consistent, principled construction and interpretation of the Constitution that will most likely result in maximal political liberty under that flawed document. That's the best we can hope for in that department.

Let's stop rooting for and supporting the conservatives' choices. They're not cheering for us . . . they're cheering for Bork.

"let's stay focused upon the appointment of judges who support and defend a consistent, principled construction and interpretation of the Constitution that will most likely result in maximal political liberty under that flawed document. That's the best we can hope for in that department."

Posted by (I assume) Ron Paul (otherwise, you really need to post under a different name)

Isn't the best we cahn hope for in the judicial branch getting people elected so that they can appoint libertarian judges, or in states like Texas where judges are elected, getting them elected? Our political enemies won't appoint our friends.

I do not believe Mr. Alito is a Libertarian. About him having a Libertarian "streak" in him; well, I would have to say most everyone enjoys freedom, which is a predominately Libertarian position, meaning, everyone, in some instance, holds at least on Libertarian view.

kp

I don't know anything at all about alito other than the fact that he was nominated by King george bush who is a SOCIALIST CONSEVATIVE with communist leanings,and who is also a one world order supporter , a skull and bones fraternity member who is for huge government and an illegal patriot act.

Scratch that nomination.

I know this is off the topic, but has anyone ever tried talking to a family member about libertarianism and them keeping a closed mind?

I tried explaining to my father that Social Security should be voluntary and you shouldn't be forced into the system and that you should be able to 'cash out' with what you paid in and be able to invest it into an individual retirement account. The basic form response of "well, people are stupid and would just blow it." is what I got.

We agree on ending welfare and the minimum wage. I at least got through to him that private charities could help the poor a lot more efficiently than the government. Seeing that the government just throws a check in and doesn't check to see if these people are truly in need of assistance. And I told him that the minimum wage is discriminative toward minorities, the handicapped and the unskilled looking for jobs.

But its always Social Security where we almost get into a knock-down, drag-out fight.

Hello Fairtax supporters,

I have been thinking about it and I have an idea that could potentially get the Fairtax passed.
It is not at all complicated, but it requires the full support of Fairtax supporters and libertarians in general.

It is simple. Fairtax bloggers need to unanimously propose a libertarian voting block. Pledging full support to all politicians who vow to pass the Fairtax (regardless of their party affiliation). Republicans and Democrats are practically split 50-50. If we could promise 100% of our voting block, some of the politicians might take us up on our offer. If we can get politicians elected based on their support for the Fairtax, other slimey politicians will follow suit.

A 3rd party would ensure our defeat, but a voting block would ensure our victory.

If you want to contact me, my email is matt_masterson@hotmail.com or you can reach me from my blog at

http://meatheadedlibertarian.blogspot.com

Chuck B: "But its always Social Security where we almost get into a knock-down, drag-out fight"

Of course it is. That's the problem convincing most people of LP ideas. All people want a smaller government, but most also insert an "Except" clause in there. I assume your dad is getting on? Therefore social security is important to him. Why would he want it to end? I'm sure if he was ill Medicare/Medicaid would be his hot button issue.

Most conservatives want smaller government, except for the military, law and order, war on drugs etc... Most liberals want smaller government except for welfare programs, education etc. I.e. they all want smaller government, except in areas that they like. That's the thing Libertarians need to bridge the opinion gap on. How to convince both sides that government should be smaller in all areas.

I've no idea how to do that.

I was one of those liberals who were no-compromise on the nanny state. I remember back in my senior year of high school (2003), I did my final English IV report on Ralph Nader. I always stood behind helping the poor and always thought of welfare and food stamps as truly helping people.

I became a registered Libertarian voter three months after I graduated thanks to a copy of Harry Brownes book. I realized that while these government welfare programs are sincere, at least in intention, they only create more poverty and break up the family. I realized that the best way to help the poor is through less government -- cutting taxes and spending, eliminating the minimum wage and letting charities and organizations take over welfare services.

I also realized that Social Security, while also a good idea on paper, cannot be trusted in the hands of politicians. However, it's nearly impossible to get people to agree to at least make it OPTIONAL. Instead of putting that 12.4% into Social Security, why can't I put it in my IRA?

I want to be able to secure my own retirement without having to worry about any crisis occurring due to politicians sticking their hand in the cookie jar.

There is absolutely ZERO chance that Bush would nominate anyone to the Supreme Court that is even remotely libertarian. Nobody on the Supreme Court - including Scalai and Thomas - really believes in individual liberty. Bush is one of the most - if not the most - corrupt, anti-freedom presidents that this country has ever had. Anyone that Bush nominates to the Supreme Court will continue to push the same fascist, big government agenda of the Bush administration. To believe otherwise is extremely naive.

By the way, for those of you who are concerned about judicial corruption - which I would hope would be everyone here, I urge you to check out the JAIL For Judges organization. JAIL stands for Judicial Accountability Initiative Law. Their goal is to create a citizens panel (which would be chosen at random and act as a jury) to review the conduct of judges. If a judge violates the Constitution they could be taken off the bench, fined, and possibly sent to prison. JAIL For Judges wants to get this on the ballot in all of the states that have citizen ballot initiatives and they want to lobby the legislatures in the states that don't have state wide citizen ballot initiatives to pass JAIL For Judges legislation. JAIL For Judges just recently finished collecting the required number of petition signatures in South Dakota to get on the ballot for the November 2006 election and it is looking like Nevada is going to be the next state that they try to get on the ballot for 2006. Please visit their website at www.jail4judges.org and give them some support.

To the person that posted about the Neil Boortz proposal for a National Sales Tax (ie-the "Fair Tax"). I am familiar with this proposal and I think that it's a bad idea for libertarians to get behind for several reasons...

1) Anarchist arguement: Taxation is theft. Does it really matter whether the theft occurs out of one's paycheck or during a sales transaction? Theft is still theft.

2) Minarchist arguement: If our government actually obeyed the Constitution there would not be a need for an income tax or a national sales tax. Shouldn't we focus our efforts on abolishing the Federal Reserve System and fiat currency as well as eliminating all unconstitutional government spending programs? With a national sales tax we'll still have a federal government that operates far outside of its constitutional bounds.

3) A national sales tax will be much more difficult for people to avoid. Right now millions of people avoid paying income taxes. The IRS doesn't have the man power to go after every American who doesn't file or who hides their assets. With a national sales tax the tax collectors will only have to go after retailers. The only way to avoid the national sales tax would be to make purchases on the black market (which would definitely get larger were such a tax scheme implemented) or to barter with friends and neighbors - both of which would be inconvient. Why would any libertarian support a tax system in which it is easier for the government to collect and where more people will be paying?

4) The national sales tax does NOTHING to reduce the size of government. Why should any libertarian get excited by the prospect of shifting the tax burden around when the end result is the same: a big tax base to support big government.

5) Part of the "plan" of our government controllers is to issue us National ID cards and then implantable microchips and heard us into a cashless society control grid. Through the use of credit cards and thumb scanners (and in the not too distant future retinal scanners or implanted microchips) the government will know everything that you purchase and they will be able to track and trace you. Big Brother is already here and it is only going to get worse. A national sales tax plays into since it would be collected at the cash register. Why would any libertarian support this?

6) There is a very good chance that we could end up with BOTH a national sales tax and the income tax. You people should KNOW that those greedy politicians would just LOVE to have revenue flowing in from both the income tax and a new sales tax. They will probably use the so called "War On Terror" or some other "crisis" that they create as an excuse to have both taxes, because afterall, "The government needs the money so they can take care of us." Is this very real possibility something that any libertarian wants?

Judge Alito? Sorry, I thought you meant Judge Ito. My mistake.

Beyond the proposal for the FairTax itself, the Neal Boortz/John Linder book has even more verbiage to offend libertarians than it does points we can cheer.

The following is a comprehensive recounting of the bad to be found in The FairTax Book:

http://www.lewrockwell.com/cox/cox8.html

"Judge Alito? Sorry, I thought you meant Judge Ito. My mistake."

I thought it was Emperor Hirohito....

On the offtopic of fair tax; I absolutely agree with Andy. Also, we should not lose our time with running on tax cuts or tax reforms. Tax cuts can only be achieved once spending have been cut and anything else is political shenanigans and/or Bush I or II speaking. The key is cutting government spendings.
Concerning Alito, the only reason he might be a libertarian is the only reason why republicans believe they support free-market: confusion of words.

R. Paul (not Ron Paul) says:

Again, the point is that libertarians should seek to advance the cause of libertarian judges rather than debate the benefits or burdens of non-libertarian judges in specific cases.

We should not seek to laud or accept the nomination of anyone who is not a libertarian simply because some of their decisions may or may not have more or less libertarian implications or results.

The point of the lead article above and some of the Cato commentary applauding the Alito appointment was that Alito may have a "libertarian streak" hiding behind the black robe of fascism. Even a recent New York Times piece suggested the same. But a close reading of the article showed that Alito was somewhat solicitous of First Amendment claims and arguments, so civil libertarians had something to crow about, not political libertarians.

Presumably those that post in here have some inkling of the difference.

Please enlighten me on that difference.

No.

R Paul: I agree 100%.

Chuck B: Bravo! You have provided further evidence that liberals are not lost causes like so many conservative-leaning libertarians believe. Congratulations on seeing the light and having the courage to amend your convictions. I hope our more conservative members take note of your post. We have as much or more to gain as a party reaching out to the left as we ever had toward the right.

For those who can go, information regarding Bruce Cohen.

http://getbruce.com/index.php?menuID=ViewEvent&eventID=112

I believe we have more possibilities in outreach to the left, and that doing so will be more politically rewarding. You cant out-republican a republican, they have a party. I think there are more Democrats
in play that we could attract - the christian right wing makes doing same to the right side much harder.

They already have control over a political party many times our size and strength. (but that will be hitting the skids over the next 5 years due to Iraq and corruption factors)

We need to take a bite out of the Democrats and make their rise to power not so smooth a road.

Chuck B and Libertarian TV:

You're both correct on all points. Ironically with Social Security the USA is less "conservative" (whatever that means these days) or Libertarian than many so-called socialist leaning countries in Europe. The UK for example has, for some time, allowed its citizens to "opt-out" of the state pension. In return they get a tax rebate that can be spent on a private pension.

On a totally separate note, I also read that the UK's equivalent of the FAA and Air Traffic control is privately run (Government has an input, but they are not funded from tax payers).

Darn it, I forgot to put my name on the anti-Bruce Cohen post from above.

Cohen and Alito are both about equally libertarian, which is not very much at all.

I really wish people would stop confusing imperialist neo-con-artists with libertarians.

Does Judge Alito Reflect George W. Bush's 'Libertarian Streak'?
by J. H. Huebert
original with links at
http://www.lewrockwell.com/huebert/huebert13.html

Supreme Court nominee Samuel Alito is so far from being a libertarian that I thought even the DC libertarian establishment would sit this one out. It seems, however, that I have overestimated our friends in the nation's capital.

Thus we are presented with an article from the Cato Institute, by George Mason University law professor Ilya Somin, praising Alito's "libertarian streak."

Let's look at what he says – and why Alito doesn't have anything even close to "libertarian streak."

Alito and Religious Freedom

Professor Somin begins by repeating Benjamin Shapiro's line that Alito is great on religious freedom:

"In sharp contrast to Scalia, Alito has often voted in favor of the free exercise rights of minority religious groups, even against laws that are not deliberately intended to harm minority religions. In Fraternal Order of Police v. City of Newark (1999), he joined an opinion holding that Muslim police officers had a right to grow beards (as required by their religion) so long as the city allowed a secular health-related exemption from its no-beard policy."

As in my previous piece on Alito, I ask: Who cares whether some cop gets to wear a beard? And why, in any event, should the federal government dictate the terms of local police departments' employment agreements, any more than it should dictate those of private employers?

Libertarianism isn't about freedom for cops; it's about freedom for people who just want government to leave them alone.

The next case Professor Somin cites is somewhat easier for a libertarian to appreciate: In Blackhawk v. Pennsylvania, Alito held that the Pennsylvania Game Commission could not require an Indian who kept two "holy" black bears on his property to get a permit and pay a fee.

Even if you don't have a problem with the federal government controlling state governments like this (I do), you should be aware that this decision, though libertarian in outcome, does not reflect a "libertarian streak" in Alito.

Instead, this decision, like the cops-with-beards decision, turns on the fact that the rule being enforced made some exceptions for secular purposes, but not for religious purposes. Specifically, the statute exempted zoos and circuses from the fee requirement – but the lawmakers somehow didn't think to exempt people who worship bear gods. Alito held, in essence, that the state could not justify making an exception for those secular people and not for bear people who want to use animals for religious purposes.

And, I agree, that's not fair.

But Alito made clear that he would have had no problem with the law at issue if it forced everyone to pay a fee, religious and non-religious alike. Thus, we can see that Alito's decision could just as easily push the law in a non-libertarian direction (when the state legislature reacts to it) as a libertarian direction. Alito's opinion provides no basis for concluding that he favors one outcome over the other.

Alito and the Commerce Clause

How ironic, after praising Alito for stepping on state governments' restrictions on religion, that Mr. Somin next praises Alito as an ally of federalism! He writes:

"Alito also differs from Scalia on the key issue of federalism. In United States v. Rybar (1996), Alito dissented from a case upholding a federal statute banning machine gun possession. Alito argued that a categorical ban on the intrastate ownership of machine guns falls outside of Congress's power to regulate interstate commerce. The case cannot be explained, as some might believe, on the grounds that Alito somehow sympathizes with private ownership of machine guns. In the opinion, he favorably refers to state bans on machine gun possession. Alito's position differs from Scalia's recent opinion in Gonzales v. Raich, where the Justice argued that the commerce power justified upholding a federal ban on the possession of marijuana, even for noncommercial medical purposes permitted under state law. "

Professor Somin echoes a number of people, perhaps well-intentioned but nonetheless mistaken, who have written to me saying, "But Alito's good on the Commerce Clause!"

It's true, of course, that "intrastate ownership of machine guns falls outside Congress's power to regulate interstate commerce." But is that what Alito really said in his Rybar dissent?

Yes, he would have struck down the federal statute banning intrastate machine gun possession on Commerce Clause grounds. But then he added the following:

"I would view this case differently if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce."

So Alito did not say Congress cannot regulate intrastate machine gun possession. He only said that it can't do so unless it "finds" that machine-gun possession "has a substantial effect on interstate commerce."

Do you think Congress would have any trouble "finding" that? I don't – and I'm sure Judge Alito doesn't, either. That's why he's saying to Congress, "Hey, guys, make some findings next time so we don't have to strike down your law!" His interpretation of the Commerce Clause would not place anything off limits for Congress.

If you want to see an opinion that, though still not perfect, genuinely shows a "libertarian streak" with respect to the Commerce Clause, look at Justice Thomas's concurrence in United States v. Lopez. Then contrast it with what Alito wrote.

Alito and Free Speech

Mr. Somin continues:

"Additionally, Alito has taken important libertarian positions on free speech issues. In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students' religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of "harassment" and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito's jurisprudence."

The first opinion here has little to do with the libertarian concept of free speech – i.e., the idea that you can say what you like on your own private property. Instead, it involves a typical battle over speech on government property.

It is perfectly respectable, of course, to say that as long as the government owns property on which people can speak, it shouldn't discriminate based upon viewpoints. On the other hand, I'm not sure all libertarians would be willing to go all the way with this idea, and agree with the ACLU that NAMBLA should be allowed to hold meetings in public libraries – as, incidentally, it has, thanks to some judges' ideas on its First Amendment rights.

Regardless of your views on that, are speech restrictions on government property one of the "most important threats to free expression today"? What about the many worse ways in which government stifles speech on private property?

The Pitt News case, I will concede, appears to reach an appropriate libertarian conclusion about commercial speech (ignoring, for the moment, that once again Alito favors federal power over the states).

Well, so what? So Alito has one or two good free-speech cases. So do all judges – we have, after all, a rather liberal First Amendment. Do one or two such cases a "streak" make? If so, where is Professor Somin's article on John Paul Stevens's "libertarian streak"?

Alito and Immigration

Somin says:

"Alito showed some libertarian leanings in a key immigration case. In Fatin v. INS (1993), he wrote an opinion holding that an Iranian woman could be entitled to refugee status based on the Iranian government's oppression of women and on her support for women's rights. Fatin was not a constitutional case, and was partially based on deference to agency judgment. Still, Alito embraced a more expansive vision of refugee rights than is accepted by many conservatives, and advocated a broad definition of asylum rights for victims of gender-based persecution."

Mr. Somin's summary of Fatin omits one critical fact: Alito sent the woman back to Iran! I'm not sure what aspect of the decision's dicta pleases Somin so much, but I like this quote from it:

"Here, while we assume for the sake of argument that requiring some women to wear chadors may be so abhorrent to them that it would be tantamount to persecution, this requirement clearly does not constitute persecution for all women."

Yes, some women might really hate being forced to wear chadors, but you look like you can take it, so back you go! And notice that he carefully says, in the above quote and elsewhere in the opinion, that he accepts the premise that this could be persecution only "for the sake of argument."

In fairness, I probably would have reached the same conclusion as Alito in this case, because the law requires an extremely high level of deference to a deportation decision. Indeed, in this instance, my problem is not with Judge Alito so much as with Mr. Somin, for giving a phony impression of what happened in the case and suggesting that there was something libertarian about it when, as far as I can tell, there was not, in either outcome or reasoning.

Conclusion

Judge Alito has an unusually lengthy history of judicial opinions and other writings from which we can form ideas about his view of the law. From all of this, Professor Somin has taken a tiny handful of cases to make his case that Alito has a "libertarian streak" – and, as we have seen, even most of those cases provide no evidence for any such claim.

I won't speculate as to why an ostensibly libertarian organization would want to get behind Judge Alito, or anyone George W. Bush would consider worthy of the Supreme Court, let alone stretch so far to do so. They, of course, can waste their time and efforts however they like – I'm rather confident that Alito will be confirmed with or without their help.

I only hope no one is taken in by their campaign, and moved to spend their own resources supporting this unmistakably statist judge on the bogus premise that doing so will somehow advance liberty.

The article about Alito from the Cato Institute about his supposed "libertarian streak" is a perfect illustration of why I'm not particularly wild about the Cato Institute. Yes, I will admitt that they do some good work, but they also put out some garbage like the article about Atilo that I believe actually damages the libertarian movement. I've got similiar complaints about the Reason Foundation. Lew Rockwell wrote a really good article a few months back where he was obviously refering to the Cato crowd and I think that he called them "lap dog libertarians" or something like that. I agree with that sentiment. The Von Mises Institute is a better organization than Cato or Reason in my opinion.

Um, next time just give the link, Paulie. Don't copy and paste an entire article.

According to the latest news, Alito claims that there is no right in the Constitution to an abortion. He will join a long list of "justices" who believe that the 10th Amendment does not exist.

I'm glad people came out on this thread and called CATO out for its garbage/manipulative opinion. Now the only question is how it made its way to the lp website without the slightest shred of official disapproval.

Pennsylvania is poised to pass an eminent domain reform bill. The statement below, put out by the Institue for Justice (www.ij.org), explains the details of the bill. Recently, Pitt Law students had the chance to attend a debate on eminent domain featuring Scott Bullock, one of the Institue For Justice lawyers litigating the now infamous case, Kelo v. City of New London (125 S.Ct. 2655). One perspective to come out of the debate was, if you own a home with a beautiful view (as did the Kelo's), or if your home is particuarly convenient to a highway, you should be very concerned about the government taking your home and giving it to a private developer. It is bad enough that Kelo permits governments to take land that is not "blighted" and put it to a more "productive" use. Even more repugnant to the idea that you can live your life free from government intrusion is the fact that the Supreme Court has decided that the government can, and should, take particularly valuable land, indeed irreplacable to the people being forced out of their homes. Who, then, is protected from having their home turned into a Wal-Mart just because it would produce more tax revenue? The only way to fight this Constitutional interpretation is to be diligent in enacting state laws that better protect private property rights. Help us pass such a law in Pennsylvania. If you are a resident of Pennsylvania, email or call your state senator.

Here is the letter from the Institute for Justice.

Friends,

The Pennsylvania state senate will vote soon, probably Mon., Nov. 21, on an eminent domain reform bill that could be a model for the nation. It's a good bill - an identical one already has passed the House - and needs all the support it can get. Now is the time to contact your state senator to express your support. Below is information on the bill. Of particular note, there currently are efforts afoot to exempt Philadelphia from the provisions in this bill, so contacting senators in that region is particularly important.

Background:

Senate Bill 881 is in the Senate Committee on Appropriations.

Opponents (such as Rep. Dan Frankle, D.) continue to try to defeat or weaken the bill.

This bill will not pass without your support. This legislation is the best chance Pennsylvanians have for real and significant eminent domain reform. If you want to protect your home or small business from eminent domain abuse, you must CALL OR EMAIL YOUR SENATORS TODAY and urge them to pass S.B. 881 without amendments that weaken its protections by creating loopholes that allow the abuse of eminent domain for private development to go unchecked.

An identical bill passed the PA House, H.B. 2054.

The Institute for Justice is the nation’s leading advocate for home and business owners who are affected by the abuse of eminent domain for private development, and it represented Susette Kelo in the now infamous Supreme Court case Kelo v. City of New London. The Institute supports S.B. 881 and H.B. 2054 as written and opposes any amendments that will eliminate or weaken any of the protections they provide to home and small business owners.

In Kelo, the U.S. Supreme Court held that the Constitution allows governments to take homes and businesses for potentially more profitable, higher-tax uses. In the aftermath of that decision, the defenders of eminent domain abuse in Pennsylvania have already begun desperate attempts to keep the power to take homes and businesses and turn them over to private developers. The beneficiaries of the virtually unrestricted use of eminent domain-local governments, developers, and planners-are frantically lobbying to prevent any attempt to diminish their power and have taken aim at SB 881 and HB 2054, two balanced bills that strike at the heart of eminent domain abuse.

The Bills Are a Thoughtful Response

Pennsylvania legislators have been holding hearings across the state regarding the abuse of eminent domain over the past several months. They’ve heard from people on both sides of the issue and the legislative responses are the result of these well-attended meetings. There’s a genuine consensus among many lawmakers -- that’s why so many have sponsored the bills.

The Bills Are Balanced and Appropriate

The bills are not radical -- they make certain that home and small business owners in this state know that they can keep what they’ve worked so hard to own.

Eminent domain will still be allowed for traditional public uses like roads, schools and post offices. Utilities and other public services will still be built. Urban communities remain able to clean up areas full of abandoned and dangerous properties, but under these bills blight designations are reserved for only those situations where there are real threats to public health and safety.

Economic Blight Amendments Must Be Defeated

Any attempt to include a concept of “economic blight” in the bills must be defeated. This will ultimately lead, as it does already, to the transfer of homes and businesses to developers who promise increased tax revenue and jobs. Communities would no longer be razed because some consultant considers them “economically undesirable.”

Economic blight cannot be a justification for eminent domain because that means no one’s home or business is safe -- any home can make more money as a luxury condominium and any small business can make more money as a big-box store. Under the bills, governments will no longer be able to take properties from private individuals and hand them over to wealthy, well-connected developers.

Pennsylvania Has a Horrible History of Eminent Domain Abuse

Between 1998 and 2002, the Institute for Justice found more than 10,000 abuses of eminent domain around the country and many of these were in Pennsylvania. Some continue, and new ones seem to be added every day:

Ardmore - City officials are trying to strip the historic downtown district of its unique character, in order to replace it with cookie-cutter mixed-use development. A charming, Main Line suburb along the old Pennsylvania Railroad, Ardmore’s quaint downtown business district is home to many locally owned small businesses passed through generation for over a century. A half-block of successful small businesses is slated to be demolished and replaced with mall stores, upscale apartments, and a large garage.

Pittsburgh - There are several horrible situations worth noting, but two stand out: H.J. Heinz used the Pittsburgh Urban Redevelopment Authority to bully the Kumer family and Pittsburgh Wool Company from its location, though three years later Heinz sold the property to a Cleveland developer for upscale apartments. Mayor Tom Murphy sought to take 64 buildings and 125 businesses for a movie theater and Nordstrom for his failed Fifth and Forbes project. In the end, all the project created was considerable disinvestment.

Coatesville - Dick and Nancy Saha waged a six-year battle to keep their family farm from becoming a golf course. Spending the bulk of their retirement savings on legal fees, the couple were finally successful when the city council agreed to drop the eminent domain taking in exchange for the right to purchase five acres of property that the Sahas had offered the city for free at the beginning of the dispute.

Washington - "The Crossroads" development calls for a new office building, hotel, retail, and residential space where popular local businesses like World West Galleries and Fine Art Printers, Shorty’s Lunch, and Jerry’s Shoe Repair currently exist and thrive.

Eminent Domain Is Not Necessary for Economic Development

City officials often claim that without the power of eminent domain, they will be unable to do worthwhile projects and their cities will fall into decline. They are wrong. There are many ways to encourage economic growth without taking someone else’s property. These include, for example, economic development districts, tax incentives, bonding, tax increment financing, Main Street programs, infrastructure improvements, relaxed or expedited permitting, and small grants and loans for faзade improvements.

Development happens every day, all across the country, without the use of eminent domain. Defenders of eminent domain for private development present a false choice between protecting people’s rights and economic development. In fact, we can have both.

Eminent Domain Is Not a “Last Resort”

In most cases, the threat of eminent domain plays an important role from the very beginning of negotiations. Cities know that most home and business owners will be unable to afford to fight; this fact gives cities a strong incentive to threaten property owners with condemnation at the very start.

Procedural Changes Will Not Stop Eminent Domain Abuse

More process and public input and better planning are not the answer. These measures will do absolutely nothing to protect the rights of home and business owners. Despite overwhelming public opposition by citizens and Ardmore’s invited consultant, the Urban Land Institute, the Board of Commissioners still voted to destroy a third-generation office supply company, a popular Chinese restaurant and the local American Legion and VFW posts. Local legislators typically know the outcome they want and then follow the procedures necessary to get it. Indeed, all of the examples of abuse occurring here in Pennsylvania and across the country proceeded according to the current procedures, evidence alone that changes are necessary.

Better planning is also no solution and will do nothing to protect home and business owners from losing their property to private developers. Planners call for even more of the kind of planning that, if implemented, necessitates forcing some people out of their homes and businesses to make way for other, supposedly better-planned uses occupied by more economically desirable people. While all of this additional planning will no doubt bring lots of money to planners, it will not prevent the use of eminent domain for private commercial development and in practice will probably encourage more abuse.

In crafting these bills, everyone’s concerns have been considered and compromises have been made. The result of this thoughtful approach is that these bills stand as models for the rest of the country. We urge passage of these bills and oppose any attempt to weaken them. We also hope Governor Rendell will sign these necessary reforms into law. Pennsylvania deserves it.