Who will watch the limited watchmen?
Another way to see the problem is to examine that shibboleth of libertarians — limited government. Now, the frustrated English teacher in me notes an interesting fact about this phrase: it is in the passive voice. Who shall limit the government? And how can we assure that they continue to do so? And if some other party does this limiting, who shall limit them? This is, of course, the old quis custodiet problem. To which Rothbard has no better solution than Juvenal.Libertarians can be classified according to their wrong answers to this question. If you are a democratic libertarian, you believe that government should be limited by popular sovereignty. You also probably haven’t looked out the window in the last 200 years. If you are a judicial libertarian, you believe that government should be limited by judicial sovereignty — ie, by a judiciary committed to Constitutional principles and the Anglo-American common law. And you haven’t looked out the window in the last 75.
The essential problem with both democratic and judicial libertarianism is that, while we see both these phenomena succeed in history, we see them — once again — succeed only on the left. English and American history is a rich trove, as Rothbard can show you, of both popular resistance to state authority, and judicial resistance to state authority. However, this resistance succeeds only when in the process of undermining some higher order, royal or aristocratic. Once the People themselves are in the saddle, they no longer listen to complaints of this form.
In the democratic system today, to ask either the electorate or the judiciary for libertarian government is to ask an empowered body to relinquish powers it has. The People have powers X, Y and Z; they use these powers to vote government services A, B, and C; if you remove these services, you must remove the powers; if you remove the powers, you disempower.
Similarly, we live in the golden age of government by judge. Most significant executive decisions in the modern system of government land, one way in another, in the lap of a judge. This is the direct result of New Deal Legal-Realist jurisprudence. And you’re asking the judiciary, itself, out of mere goodness of heart, to relinquish this fat leg of ham? You and what army?
Whereas when the likes of Coke contended with the likes of Charles I, judicially-limited government was a no-brainer. Alas, judges are men. If we had angels on this planet, we would long ago have consigned these duties to them.
Thus, again: libertarianism works for the left and fails for the right. Both sovereign electorate and sovereign judiciary are perfectly happy to restrict the powers of others, ie, the King. Convincing them to restrict their own powers is quite a different problem. When democracy is competing against the remnants of the ancien regime, it is a force for limited government. Once it defeats and disempowers these remnants, it is a synonym for socialism.