It’s widely believed–even by Nolan Chart libertarians–that the left and liberals in America are better on civil liberties than are conservatives. I’ve long believed that this is false: that both are terrible, and that if anything, the left is as bad as, or even worse than, modern American conservatives on civil liberties. (See my posts Everything you need to know about Judge Alito — Or, Good and Bad Judicial Activism; Left Socialists vs. Right Socialists; Liberals vs. Conservatives; Conservatives and Liberals; Liberals and Free Speech.) This is borne out again in a recent Supreme Court decision striking down campaign finance laws as being censorship in violation of the First Amendment. Predictably, the four left-liberal members of the Court dissented.
A better decision would have struck the federal McCain-Feingold law down without reference to the First Amendment, on the grounds that there is no power authorized in the Constitution to enact the law in the first place–after all, such a law would have been as unconstitutional in 1790 (before the Bill of Rights was ratified) as in 1791 [see The Unique American Federal Government and the work of Professor McAffee discussed in The Great Gun Decision: Dissent and in On States’ “Rights”].
This is not to praise the right, of course, or buy into the notion that we can rely on the judiciary to protect our rights from invasion from their fellow state actors (see the quote from J.H. Huebert in Is Gay Marriage a Constitutional Rights?]. In fact, “The decision threatens similar limits imposed by 24 states.” This is because of the Court’s ridiculous “incorporation” of selected parts of the Bill of Rights (which applied only to the federal government) into the 14th Amendment’s Due Process clause (which limits the states) (see The Libertarian Case Against the Fourteenth Amendment). If the Bill of Rights were absent, and the Court had struck down McCain-Feingold on the grounds that it is ultra vires–beyond the power of Congressional legislation absent an enumerated power in the Constitution–it would be hard to argue that this “lack of power” grounds could somehow apply to the States–unlike the unique federal government, the states have plenary legislative power (see The Unique American Federal Government). For example, a federal law banning murder would also be unconstitutional since it is not authorized in the Constitution, but a state law banning murder violates neither its own nor the federal Constitution. The Bill of Rights, like the Constitution itself, has served primarily as a basis for expansion of federal power (see Rockwell on Hoppe on the Constitution as Expansion of Government Power). The Bill of Rights was a mistake (as was the one proposed in Iraq). The Constitution was a mistake. Secession from England was a mistake. Down with the criminal American state and its self-hagiographical “history”! (See Happy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!; ‘Untold Truths About the American Revolution’; The Murdering, Thieving, Enslaving, Unlibertarian Continental Army; Goodbye 1776, 1789, Tom.)
Update: Glenn Greenwald has an excellent piece on this case here.