*** Forwarded message, originally written by Jon Roland on 31-Oct-05 *** From a list for constitutional law professors.
-------- Original Message -------- Subject: Alito, libertarianism, and conservatism Date: Mon, 31 Oct 2005 16:50:02 -0500 From: Ilya Somin To: conlawprof <conlawprof@lists.ucla.edu> The discussion of the disparate parts of the conservative coalition led me to reflect on how Alito fits in. And I think it's clear that he has much to offer to libertarians as well as to social conservatives, and that in this respect he's far from being a Scalia clone. Consider his record on the following: 1. Alito has voted in favor of the rights of minority religious groups. For example, in Fraternal Order of Police v. Newark, he joined an opinion holding that Muslim police officers had a right to keep their beards so long as the city allowed "secular" exemptions from the no-beard policy. This is certainly in tension with Scalia's position in Smith, and points to a greater sympathy for individual rights. And given that the case involved Muslims, it's hard to argue that Alito was just voting for the rights of a group whose religious values he shares. 2. Freedom of speech. In Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), he concluded that sexual harassment law should not be allowed to infringe on free speech. He has also written opinions protecting commercial speech, as in a case where he struck down a ban on paid alcohol advertisements in student newspapers. 3. Federalism. In US v. Rybar (1996), Alito dissented from a case upholding the federal statute that bans machine gun possession. This suggests that he would not go soft on federalism, as Scalia did in Raich. I don't think the case can be explained simply on the grounds that Alito sympathizes with private ownership of machine guns, as he favorably refers to state bans on machine gun possession. 4. Refugee rights. In INS v. Fatin, Alito wrote an opinion holding that an Iranian woman was entitled to refugee status based on her gender and her support for women's rights. While not a constitutional case, this is a more important issue than it sounds, for 2 reasons. First, such cases are quite common, and federal courts have considerable discretion in reviewing agency decisions on refugee status. Second, it clearly differentiates Alito from the numerous conservative judges who tend to just defer to whatever the agency wants to do in these cases. Cases like this directly pit the libertarian value of protecting refugee rights against the goals of many conservatives in 1) limiting immigration, and 2) maximizing executive discretion. It is interesting that Alito, at least to a considerable extent, came down on the libertarian side. Obviously, I would not argue that Alito is a libertarian or that he would vote the "libertarian way" on every issue. Far from it. However, there is clearly much to for libertarians to like in his record. I think there are also things that at least some liberals should like, particularly points 1 and 4 above, and maybe point 2 as well. Liberals should think seriously about whether they would rather have a conservative with a significant libertarian streak, like Alito, or a pro-government stealth conservative who will be just as likely to overturn Roe as Alito will, but is unlikely to vote for restricting the government in speech cases, freedom of religion, and so on. Finally, I hope that liberals will reconsider their tendency to reject Alito's stance on federalism, but this is a subject for another post. Ilya Somin Assistant Professor of Law George Mason University School of Law 3301 Fairfax Dr. Arlington, VA 22201 ph: 703-993-8069 fax: 703-993-8202 Website: http://mason.gmu.edu/~isomin/ _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- ---------------------------------------------------------------- Our efforts depend on donations from people like you. Directions for donors are at http://www.constitution.org/whatucando.htm Constitution Society 7793 Burnet Road #37, Austin, TX 78757 512/374-9585 www.constitution.org [EMAIL PROTECTED] Get your free digital certificate from http://www.thawte.com ---------------------------------------------------------------- _______________________________________________ Libnw mailing list Libnw@immosys.com List info and subscriber options: http://immosys.com/mailman/listinfo/libnw Archives: http://immosys.com/mailman//pipermail/libnw
