A hypothetical Bizarro Institute for Justice

I’ve long been a fan of the Institute for Justice, a libertarian law organization that fights eminent domain, occupational licensing, and other economically unjust government actions. These types of governmental intrusions into the market overwhelmingly harm the poor and powerless. It’s a shame that there’s still so much work for IJ to do and that it’s not common knowledge that a powerful government is the greatest weapon of powerful interests.

However, I wonder to what degree the US legal system can really be saved by poking around the edges. For example, the Commerce Clause is already stretched far beyond its original purpose, and its new interpretation is validated by Supreme Court decision, such that I can hardly see the possibility of successfully scaling it back in my lifetime. I don’t deny that what the IJ does is the morally right thing to do, or that it helps people. I wonder how much attention should be devoted to resisting the tide of government centralization.

This may seem a little ridiculous, and I admit that it is, but what if there were some parallel organization devoted to taking on the worst, most hopeless cases for the express purpose of forcing the courts to lock in the most authoritarian interpretations of federal power? Here’s an example that happened even without this kind of organization:

The Supreme Court has rejected an appeal over a federal law banning felons from having bulletproof vests or body armor.

The 7-2 decision on Monday not to intervene was a reaffirmation of congressional authority over a wide range of commerce.

By refusing to accept the case for review, the justices let stand the conviction of Cedrick Alderman, a Washington state man who was stopped by police in 2005 on suspicion of selling cocaine. Officers then discovered he was wearing a bulletproof vest. That in itself did not violate state law, but because Alderman was an ex-felon — convicted of armed robbery in 1999 — and the vest was manufactured in California, he was convicted under federal law. He was sentenced to 18 months in federal prison.

Nevermind how immoral it is that Alderman could be convicted for something that shouldn’t be a crime. The fact that his body armor was manufactured in another state was grounds for his prosecution under federal law—justified by the Commerce Clause. This power is so extensive that it’s hard to conceive of a reductio ad absurdum. The Obamacare decision finally put some limit on its power, saying essentially that while just about any activity can be covered under the Commerce Clause, inactivity cannot be, but this is hardly comforting when the taxing power granted elsewhere in the Constitution reaches into that forbidden territory anyway.

In my hypothetical scenario, this Bizarro IJ would intentionally take only the cases in which the likely outcome was a resounding defeat for freedoms of every kind. This would very quickly freeze up society’s creative powers. This kind of government could not last, as there would hardly be any wealth to tax, and likely would have to be radically overhauled in one fell swoop rather than limping along by piecemeal adjustments.

This is very similar to the scenario posed in Atlas Shrugged. The big question is at what point the struggle is no longer worth it. Can you think of a cutoff point?

I’ll end this with a pitch for you to donate to the Institute for Justice.

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