McDonald and incremental changes


Author Timothy Sandefur

It’s darkly amusing that, seventy years after the New Deal, it’s the “liberals” who are the conservatives, trying desperately to resist changes in the law that would recognize the rights of individual liberty; making the weakest arguments for retaining old, worn-out legal theories like “rational basis”; cynically defending a creaking and rusting bureaucratic machine from the overwhelming legal, economic, and philosophical arguments for freedom. If there’s one thing the left does not believe in, it’s “change”!

We saw that irony again in McDonald yesterday. Justice Stevens in dissent fretted like the most hidebound conservative that “It is no secret that the desire to ‘displace’ major ‘portions of our equal protection and substantive due process jurisprudence’ animates some of the passion that attends this [case].” (Eek!) But some of us believe that, to coin a phrase, it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Franklin Roosevelt, or for that matter, Melville Fuller.

As Randy Barnett notes at SCOTUSBlog, McDonald was an important step forward for the freedom movement–the movement of the real “liberals,” who believe in individual freedom and diversity over the monotonous unity and arthritic pedantry of the bureaucratic state. Change begins slowly, and we have many interesting conversations to look forward to on the journey.