New York Times article ignites firestorm of controversy over libertarian constitutional theory

The lead article in Sunday's New York Times Magazine, The Unregulated Offensive, openly wonders whether President Bush will nominate Clarence Thomas to be Chief Justice when William Rehnquist retires, and what it might mean if he does. In an extremely long article law professor Jeffery Rosen describes libertarian constitutional theories and then speculates what a return to a pre-New Deal jurisprudence might look like.

According to Slate bloggers on both the left and right have been having a field day with the article. Central to the debate are two questions: (1) why the Times would print the article at all, and (2) whether a return to pre-New Deal jurisprudence would really result in a dismantling of the welfare state, as the author implies.

While the article does cast libertarian theories in a relatively negative light, it nonetheless provides an adequate summary of libertarian constitutional views. I'm reminded of a comment made by former LNC chair Jim Turney (gosh-nearly 20 years ago!) about negative press for the libertarian movement. He said, "So little is known about us that even bad news is good news." Obviously, that approach will not carry the day, but the mere fact that libertarian ideas are a lead story in a leading newspaper is something to be happy about.

And while many New Deal programs might be at risk under review by a libertarian supreme court, the chances of that happening upon the nomination of a new Chief Justice are near zero. On the current court only Thomas and Anthony Kennedy have demonstrated libertarian sympathies, and only inconsistently at that. Adding one more is still a minority. The most the libertarians might hope for is to stem the tide of regulation that erodes the individual rights that made this country great.