I think the same principle applies to the claim that “no right-minded libertarian subscribes to Bork’s (or Paul’s) pandering to democratic majorities.” There’s absolutely nothing contradictory about saying that the constitution permits states to enact some statist policy (abortion restrictions, sodomy laws, hate crime laws, etc) but that one doesn’t think that policy should be enacted. Indeed, I would argue that intellectual honesty requires libertarian legal scholars to concede in at least some cases that the constitution to enact policies that we don’t agree with. It would plainly be silly to argue that the constitution doesn’t permit federal post offices.
In principle, I agree with this in its entirety. There is nothing contradictory about making certain statements about statist policies in terms of being opposed to them yet acknowledging the Constitution permits them. I think a great example of this is the ruling in the 1877 case of Munn v Illinois, where the Supreme Court upheld a state law regulating rates for grain elevators and warehouses on the basis that the "property is affected with a public interest". As a libertarian, I love Justice Field's dissent; however, I concede here (and in other cases as well) that a case can be made for its constitutionality although I don't like it (one can argue it set up one of the worst decisions ever handed down by the court, the 1934 case of Nebbia v New York).
There are numerous regulations that may legitimately serve public health or public safety concerns and that are neutral in nature (they don't serve to favor or disfavor one or multiple groups. Some of these I may find repugnant to my libertarian beliefs, but if they legitimately protect the rights of the general public, from a constitutional standpoint, I would concede that these do not exceed the proper role of the state police power. I may dislike them but the Court should uphold them.
Although these are fair points to bring up, the issue here is not that I think libertarianism and the Constitution go hand in hand (I have never made that claim and never will although I could have been unclear). The question is whether or not Rep. Paul's views on what states can or can not do reflect the proper role of the state police power, which has support in the Constitution. If we define the proper role of the state police power as 1) preventing wrongful acts on others and 2) passing laws and establishing regulations that serve to protect the rights of others (i.e. laws that involve public health, public safety, public welfare and, to some extent, public morals issues), then, as Sandefur argues, he has exceeded that threshold quite considerably. I will also state that the proper role of the state police power would constitutionally permit several types of laws that libertarians of all stripes would undoubtedly find offensive. I never intended to suggest otherwise.
One last point, I appreciate Lee's citation of the debate between Gene Healy and Roger Pilon. Here is a more extended treatment of the discussion. Perhaps the most troubling apsect of Healy's solution in this article that he basically suggests that we suggests that we are "freer to adopt a narrow construction of the 14th Amendment than we would otherwise be". This is based on the circumstances on which the amendment was ratified (I understand the history but can offer no response).
Healy puts the concept of interpretation as a matter of illegitimacy on the table, in a sense, to prevent the Left from taking a broad interpretation (which he argues they have). My concern is that with the idea of illegitimacy on the table and no foreseeable way to limit the concept of what is illegitimate to ratification, then there is nothing at all from stopping the Left from applying its own principle of illegitimacy as an excuse to interpret the Constitution as they see fit. As we know, they have already one this, arguing that the original document as ratified is illegitimate and lacks moral authority because of the compromises with slavery (Harry Jaffa discusses Thurgood Marshall's views here in the context of liberal judicial activism).
Whether well-intended or not (I think it is, for what it's worth), the principle Healy invokes is the same principle that justified the very thing he seems to deplore. Am I missing something here? By all means, I am open to suggestions and comments on this matter. I don't mean to suggest Healy is a liberal judicial activist (his writings at Cato and his libertarian views certainly suggest otherwise), but there were a couple of things that struck me as odd. That's all.