Changing Lanes: Circumventing Individualism Through Jurisprudential Policy, Part 1

This is part 1 of a 5-part article.

The National Platform of the Libertarian Party defends the view that

“all individuals have the right to exercise sole dominion over their own lives, and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose.”

The platform opposes any regulation of obscenity, including pornography, “despite claims that it instigates rape or assault, or demeans and slanders women,” as well as any speech codes at tax-funded schools, claiming that “language that is deemed offensive to certain groups is not a cause for legal action.”

It opposes eminent domain, zoning laws, building codes, property taxes, resource management, public health legislation, and all regulation of abortion.

Finally, it holds that “consenting adults should be free to choose their own sexual practices and personal relationships” and that the state does not have the authority to define the terms of marriage because marriage is simply a private contract.

Tellingly, the word individual appears fifteen times in the first twenty sentences in the platform, but the words family and school only appear once each, the words church or religion only appear a few times, and the words community and neighborhood do not appear at all.

Clearly, in libertarian thought, “respect for individuals, apart from family and other associations, is paramount to a just and virtuous society.”

This individualistic view of society is spreading through our government and our homes like wildfire.

It has already caused a steep decline in national unity and promises to continue tearing societal fabric apart until nothing but individual, atomistic, autonomous shreds remain.

Although there are many causes at the root of this individualism, I will only treat one in this article: the harm modern Supreme Court jurisprudence has inflicted on various societal associations that have previously been sources of societal unity.

In this article I explain how the current U.S. Supreme Court’s extraordinary emphasis on individual rights perpetuates a national sense of individualism.

I then explain the current method the Court uses to protect individual rights and show how this method corrodes the influence of unity-creating institutions often referred to as mediating entities.

I conclude by encouraging jurists and scholars to consider a simple shift in jurisprudential policy that would counteract these individualistic trends by revitalizing our mediating entities.

I also suggest one important reason we can have faith in our future even if the libertarian fire continues to spread.

The Court & Individual Rights

To begin, first consider the Court’s current method of interpreting the Constitution when it comes to a person’s rights.

When the State passes legislation that infringes on an individual’s rights — for example, a law that prohibits an individual from creating pornography — the Court simply balances the importance of the individual’s right against the state’s need to restrict that right, in this case the need to restrict pornography.

The amount of scrutiny a court will use when analyzing how much weight to give the individual’s right depends on the type of right in question.

If the right in question is one the court has deemed “fundamental,” such as the individual’s right to marry, procreate, care for her children, have an abortion, or vote, the court will use a high-level degree of scrutiny, called strict scrutiny, and the court will apply strict standards which are likely to find the law unconstitutional.

However, if the right in question has not been deemed “fundamental,” such as the individual’s right to hunt, fish, drive a car, or declare bankruptcy, the court will use a lower degree of scrutiny and the law will be upheld as long as the state can provide a rational reason for passing the law.

In the case of pornography, the Court has decided that a person has a fundamental free-speech right to create most types of pornography so laws restricting its creation are likely to be struck down.

Why is this method of Constitutional interpretation, which accords so well with the spirit of the Libertarian Platform, overly individualistic?

Because while the Court correctly holds the individual’s rights in high esteem, it regularly fails to consider the implications that upholding a given individual’s rights in a particular instance will have on other individuals.

What about the effect this decision may have on families, schools, churches, and neighborhoods?

These entities — often called mediating entities — are essential to a free society and merit more consideration in political platforms and Supreme Court jurisprudence.

These entities are the source of unity in free societies and play a unique and essential role.

To be continued…

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James C. Ure, Esquire is a mentor of Constitutional Case Law at George Wythe University and the owner and headmaster of Williamsburg Academy, an accredited, private, online high school with an emphasis in leadership, classical works and the outdoors.

James received his B.A. in English from Brigham Young University and graduated magna cum laude from South Texas College of Law. In law school, James served as President of the Federalist Society, the J. Reuben Clark Law Society and hosted speeches or debates with prominent judges and professors from around the country. He also served on the South Texas Law Review, which published an article of his on the structure and powers of the U.S. Constitution.

He has been a small business owner, clerked for a Texas state court judge and a law firm, and served as an intern in the Utah House of Representatives for the majority whip. He is married to the former Angela Stott. They have three children and reside in Cedar City, Utah.