Making Luck while Making History

November 20, 2009

IJ finds itself at the center of major legal and social issues with surprising regularity for an organization of our relatively modest size. That comes in significant part from having identified issues that go to the heart of what is required for a society of free and responsible individuals to flourish, issues where the threat to such a society is all too real and the status quo favors the government. We chose these issues—economic liberty, property rights, free speech and school choice—before IJ was launched more than 18 years ago and have been pursuing them ever since.

But there is another reason why we are so often in the midst of historic struggles: We make our own luck.

This often puts us in the right place at the right time. We do this by being in the position to seize opportunities and take calculated risks while pursuing a long-term strategy in a principled way. We cannot always predict just how or when an issue will come to a head, but what we have seen time and again is that when a break happens, we are there to make the most of it. Two recent examples illustrate this.

After several years of protecting free speech from campaign finance regulations, we were suddenly thrust into the national spotlight when the U.S. Supreme Court unexpectedly decided to hear a case this term that is central to the McCain-Feingold law. Because of the years we spent establishing our expertise coupled with our quick response, we were able to seize this opportunity and become the primary source to educate the public about the problems with campaign finance laws. Our message was carried by such outlets as The New York Times, The Wall Street Journal, National Review, ABC News 20/20 and C-SPAN, and our views were promoted before the Court through our amicus brief. It also meant that cases we have in court, like v. FEC, are well-positioned for precedent-setting victories.

Since our founding, IJ has sought to revitalize the Privileges or Immunities Clause of the 14th Amendment to protect economic liberty. Because the U.S. Supreme Court precedent we are challenging—The Slaughterhouse Cases—was decided in 1873, this seemed for some a particularly daunting goal. But suddenly last month, the Court took up McDonald v. City of Chicago, a case dealing with gun control at the state level. In doing so the Court deliberately and unexpectedly put the Privileges or Immunities Clause in play. Although the case does not address economic liberty directly, it offers the first opportunity in more than 100 years to urge the Court to look critically at Slaughterhouse and recognize that it was wrongly decided. We quickly mobilized a public education campaign and national speaking tour at law schools and other venues across the country. There will no doubt be others who file amicus briefs in this case, but because of the long-term principled pursuit of our goal, none will speak with more authority or expertise than IJ.

In hindsight, history may seem like the unfolding of inevitable events, but of course it never is. The unexpected happens. That is when IJ’s approach pays off and positions us to be uniquely effective, reaping the benefits of years of tenacious pursuit of our mission. Through our proven approach that vindicates the principles of liberty, we will continue to make our own luck as we make history.

Chip Mellor is IJ’s president and general counsel.

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