Why Libertarians Should be Originalists

Richard Primus has argued that it would not make sense for a libertarian to be an originalist. But his arguments impose an unreasonably high standard for a libertarian’s choice of interpretive method, and reflect, like another recent post, a misunderstanding of originalism.

First, he says that the Constitution does not entrench libertarian principles as such.  True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian  who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism.  Instead, the question should be whether an originalist view would move constitutional law today toward  more libertarian results than plausible competing interpretive theories. And here the answer is yes.

First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers.

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The Libertarian Party Grows Up

johnson

By the time Abraham Lincoln had won the election of 1860, the young Republican party had been through significant upheaval and ferocious infighting but it had a very general set of core values. It was a party opposed to the expansion of slavery along with two corollaries: granting land to independent farmers who didn’t use slavery, “free soil,” “free labor” and support for industrial development.

Just eight years later, during the administration of President Grant, many of the party’s founders had left the GOP to support Horace Greeley’s candidacy as a Democrat.  The party was nearly destroyed electorally over Reconstruction, unprecedented political corruption in the White House and several business contractions during the late 19th century.

New parties, particularly those caught up in a moment of changing political dynamics and crisis are subject to wild shifts and growing pains.  UKIP’s evolution in the UK is but one example of this trend.  It’s obvious that from election to election minor changes in the content and emphasis of platforms occur, but in potentially seismic political moments volatility can be much greater.  This is especially true within smaller political organizations that are not anchored to entrenched interests and established leadership.

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A Libertarian Ticket Hostile to Elements of Liberty

Presidential Candidate Selection

As a classical liberal, I regard libertarianism as I would a wilder, younger brother. Libertarianism is younger because it is largely a product of modernity, while classical liberalism is more rooted in the 18th and 19th centuries. It is wilder, because it posits that the public-good function of the state is more limited and the externalities less frequent than I and other classical liberals believe. Yet the philosophies are close kin: they both see that the state poses a perpetual danger to its citizens, only disagreeing at the margin on when it is necessary to relax the strictures on governmental action. And at least with the most sensible libertarians and classical liberals, these disagreements are largely empirical.

Thus, in a race where the Republican candidate for President is careering away from classical liberalism and the Democratic candidate is flirting with the socialist elements of her party, a classical liberal might find a natural home in the Libertarian Party. Sadly, however, the Libertarian ticket has taken some important positions hostile to liberty. Begin with religious freedom.

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A Profile in Courage

Sen. Robert A. Taft

When National Review debuted in 1955, the liberal columnist Dwight MacDonald lamented that the thrust of the new magazine was not conservative. In MacDonald’s lexicon, a true conservative was one who “sticks to his principles even when the results go against his prejudices,” for conservatives do not “appeal to the hearts of men” but to the “laws and traditions of a country.”

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Moral Language and Time Preferences: Assessing the Great Libertarian Lacuna

Erfolg im Business Handshake

William Ruger and Jason Sorens have identified a lacuna in both thought and rhetoric in the current conceptualization of individual freedom on the part of libertarians: an inability or perhaps unwillingness to engage arguments for virtuous self-government. 

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The Secret Lives of Right-Wing Professors: A Conversation with Joshua Dunn

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This next edition of Liberty Law Talk is a conversation with Joshua Dunn on a new book that he has co-authored with Jon Shields entitled Passing on the Right. Dunn and Shields interviewed 153 professors across a range of disciplines who consider themselves conservatives and libertarians. Their findings paint a more moderate position on the types of challenges conservative academics face compared to much conventional thinking on this subject. Evidence that they are the victims of a systematic campaign of exclusion and persecution doesn't seem to exist. What does seem to exist is a host of other problems that must be carefully…

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Is Libertarianism the Law? Part II: Using the Modalities to Support Libertarian Results

In this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions.  Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory.  While the law under these theories does place some limits on the justices, those limits are relevatively weak.  To make this argument, I attempt to show how these theories (or at least one of them in this post) would allow a libertarian Supreme Court justice to reach significantly libertarian results.  Since these theorists argue that these theories allow liberal results, it seems clear that the constraints they impose are not substantial.

In my previous post, I briefly described Dick Fallon’s Constructivists Coherence Theory of constitutional law, which requires the justices to decide cases based on five types of constitutional arguments: text, intent, theory, precedent, and values.  Here I will show how a libertarian could use these arguments to reach libertarian results.

Let me start with the text.  While the text might seem like a significant constraint, Fallon’s theory renders it much less substantial because he allows the interpreter to rely on either the original or the contemporary meaning.  Based on either the original or contemporary meaning, the text of the Takings Clause, the Privileges or Immunities Clause, the Contracts Clause, the Ninth Amendment, and the Due Process Clause could strongly support libertarian results.  (Other clauses might also be important, such as a First Amendment protection of commercial speech.)        

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Is Libertarianism the Law? Part I: The Modalities of the Law

Many people who argue against originalism do so on the basis of legal positivism.  The basic argument is that the law in a nation’s legal system is based on the rule of recognition – a rule that officials in the country accept as determining what the law is – and that the rule of recognition precludes originalism.  Under one version of this argument, the rule of recognition accepts as fully legitimate certain types of constitutional arguments.  While some of those arguments are consistent with originalism, such as text or intent arguments, others are not, such as constitutional theory or value arguments.  Because originalism does not allow these latter arguments, but the rule of recognition requires them, originalism is not the law.  While some originalists, such as Will Baude and Stephen Sachs, argue that the rule of recognition is actually consistent with a kind of originalism, the nonoriginalist positivists don’t agree.

I’m skeptical that legal positivism is actually a useful way of determining what the law is, in part because of continuing disagreements about what the rule of recognition is, but let’s put that concern to the side.  These nonoriginalist positivists tend to argue for a liberal version of constitutional law.  They contend that the various types of arguments support their liberal vision.  For two examples, see Dick Fallon’s Constructivist Coherence Theory or Philip Bobbit’s Constitutional Fate.

But as I read these nonoriginalist positivists, the arguments that they include within constitutional law are very open ended.  These open ended arguments may allow a liberal to reach liberal conclusions, but they do not prevent people with other views from reaching opposite conclusions.

To illustrate this point, I will argue in this post and the next that a libertarian judge could reach libertarian solutions using the type of arguments that these liberal positivists use to define constitutional law.  If both predominantly liberal and predominantly libertarian results are possible under the law as defined by these positivists, then the law is not very constraining.  Put differently, we should not take too seriously the claim that the law requires any particular result, since it seems compatable with a broad range of decisions.   

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Fighting Federalism: Damon Root’s Overruled (Part One)

U.S. Supreme Court building in Washington D.C.

Supreme Court pundits generally have the Court’s members pegged along a simple political spectrum, with “liberal” denoting one side and “conservative” the other (with Justice Anthony Kennedy endlessly dancing from one side to the other). The assumption is that constitutional interpretation falls along a simple liberal-conservative continuum. Damon Root’s new book, Overruled: The Long War for Control of the Supreme Court, suggests that this binary view is too simplistic. A third approach, libertarianism, presents a theory of limited government power that is indebted to, and yet distinguishable from, post-New Deal liberalism and traditional social conservativism. Like most constitutional conservatives, libertarians call…

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Why Democratic Justices are More United than Republicans

It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.

We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.

The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.

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