by Matt Barr

How passing a law is like misreading the constitution

Tim Sandefur:

Conservatives accuse libertarians of reading things into the constitution that are not there, simply on the basis of their policy preferences. Even assuming this baseless accusation were grounded in fact, do they not do the same thing? Do they not imagine that, coincidentally enough, the legislature happens to have the legitimate authority to intervene whenever a conservative’s moral sensibilities are outraged? If it’s deplorable for folks to read their policy preferences into the Constitution, is it not equally deplorable to read into one’s policy preferences into the legislative authority? Conservatives talk about restraint, but where is their restraint? Restraint means being outraged by a practice -- but knowing that you must persuade, rather than criminalize.

"Conservatives are inconsistent" is Cathy Young's territory today, pal. But it's worth fleshing out the real difference between passing a law and believing a law already says something it doesn't.

A truly analogous situation would be where conservatives insisted that an existing law already outlawed "pay per view hunting," and demanded the police arrest people for doing it. For the last 35 years or so a coalition of people surprisingly including libertarians has insisted that the supreme law of the land actually prohibits certain things -- not things as pedestrian as remote hunting -- and have demanded "armed agents of the state" enforce those prohibitions. Such as Colorado does, by arresting people who try to "persuade, rather than criminalize," in the name of an unwritten provision of the constitution.

On a practical level, if the legislature passes a dumb law, or even a law you're sympathetic to but believe shouldn't have passed, you have the opportunity to change it, much more easily than amending the constitution or seating enough penumbra-deflating Associate Justices. Sandefur is close to the answer at the end of his post: You must persuade not to criminalize. It's harder than telling people they can't pass their own laws in the first place, but we're grown-ups, and it's less fascist that way.

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