Libertarian Nonoriginalism

In my earlier post on activist liberal nonoriginalism, I discussed the methodology of this interpretive approach, which basically pursues liberal political principles to the extent that the Court can get away with it.

At the end of the post, I indicated that I wanted to discuss other kinds of nonoriginalism in the future. So here let me briefly discuss one of these types – libertarian nonoriginalism. These days my sense is that the dominant position among libertarians is to be originalist and to believe that the original meaning of the Constitution is a very libertarian document (although not a perfectly libertarian one). Randy Barnett is probably the leading person holding this view.

But my sense is that there are still some libertarians who hold the previously dominant nonoriginalist libertarian view. This view was different than activist liberal nonriginalism. It tended to look backward to the Lockian underpinnings of the Constitution. The standard libertarian nonoriginalist argument would contend that the dominant view held by the founding generation was a certain type of Lockian liberalism (of the classical type) and then they would argue that the Constitution should be interpreted in accordance with that type of liberalism.

At times, this approach seemed like it was being faithful to the original Constitution. But ultimately it was not. It was not looking at particular clauses or to the original meaning of the constitutional language. Another problem with this approach was that it assumed that the dominant political theory of the time was the version it most liked, even though the Constitution was a product of compromises between different views.

In the end, this type of libertarian nonoriginalism had a different feel that the activist liberal nonoriginalism. It was backward looking and had more historical support. It was certainly more congenial to my (moderate libertarian) political views. But while I would say that libertarian nonoriginalism was more originalist than activist liberal nonoriginalism, it was still not originalist.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Rick DiMare says

    “The standard libertarian nonoriginalist argument would contend that the dominant view held by the founding generation was a certain type of Lockian liberalism (of the classical type) and then they would argue that the Constitution should be interpreted in accordance with that type of liberalism.

    At times, this approach seemed like it was being faithful to the original Constitution. But ultimately it was not.”

    I might argue that libertarian nonoriginalism can’t be faithful to the Constitution because it isn’t faithful to Locke, who never stood for the extravagant property rights in land and intellectual property that libertarian nonoriginalists claimed.

  2. says

    I commend you for recognizing that not all libertarians consider themselves originalists. Your post does not name anyone who hews to the sort of interpretive strategy you describe, which evidently would read the Constitution by light of the Lockean principles that so influenced the Founders. I can, however, tell you the name of someone who advocates a another kind of libertarian non-originalism: Me.

    Specifically, I’ve argued for an interpretive strategy that borrows more from contract law than from history. As I’ve observed, “The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of originalism — generates a distinctly libertarian theory designed to maximize the consent of the governed and, thus, the justifiability of constitutional authority.” The Constitution as if Consent Mattered, 16 Chapman L. Rev. _ (2013) (forthcoming); draft available at http://ssrn.com/abstract=2208731.

    Thanks for your interest in exploring the range of options available to friends of liberty struggling to discern the meaning of the Constitution. Originalism gets it mostly right (pun intended), but cannot suffice for those of us who balk at the notion, such as the one publicly embraced by Justice Scalia when he opined that the original meaning of “cruel and unusual” renders public lashings and branding constitutional, that those now bound by the Constitution must read it through 18-century eyes. Respect for the consent of the governed demands better than that.

  3. djf says

    As mentioned by the previous commenter, Prof. Rappaport does not identify any writer representing the approach he purports to describe. I do not suggest that the essay is inaccurate in any significant way, but, still, it is difficult for a reader (even a lawyer) lacking expertise in comparative theories of constitional interpretation to know what to make of a description of a particular interpretative approach to the constitution that does not name a single practitioner of the approach in question.

  4. Mike Rappaport says

    As for practitioners of this interpretive approach, look at the libertarian materials produced by Cato and others prior to say 2000. I also think Randy Barnett’s own work prior to his originalism conversion fits this description.

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