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.)