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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Why Thayer is Clearly Mistaken about Judicial Restraint

James Bradley Thayer’s article on judicial review is one of the most renowned pieces of scholarship in American constitutional law. It is famous for the “clear mistake doctrine”—his notion that legislation should be struck down only if it violated what any rational person would believe the Constitution to mean.  “Clear mistake” thus embodies very strong judicial restraint.  My article, The Duty of Clarity, shows why “clear mistake” is itself clearly mistaken.

Thayer’s strongest originalist support for the doctrine comes from the many cases around the time of the Framing that state that judges should  invalidate legislation only when it is in clear or “manifest contradiction” with the Constitution. But Thayer misunderstands these cases because his own premises about law are so different from those of the Framers.  He quotes the words of law without understanding the accompanying jurisprudential music.

First, unlike those in the Framing generation, Thayer believes that constitutional law serves a political function that differs fundamentally from other applications of law. 

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Jaffa As Neo-Puritan

In the days since Harry Jaffa and Walter Berns passed away, the former’s angry disputes with his fellow Straussians have received a lot of commentary. There are those who say it was all quite childish. And you know, a lot of it was, precisely because the differences so often seemed small or, when examined closely, not really differences at all. Still, some of the differences are real enough to merit our close attention.

On the more general issue of which student of Strauss is more faithful to the true and complete teaching of Leo Strauss, the most obvious response is that the capable students of any great teacher always grab on to part of what he (or she) taught and confuse it with the whole. Marx and Hegel. Alexandre Kojève and Hegel. Maybe even Aristotle and Plato.

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The Court’s Alleged Power to Ignore the Original Meaning

In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism.  Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument.  I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning…

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Originalism and Positivism: The Problem of Interpretive Contestation

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again. I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the…

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Is Originalism the Law?: The Basis of Nonoriginalism

In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote: To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues,…

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Is Originalism the Law?: The Constitution in Exile Problem

In the past, I have discussed the justification for originalism that the original meaning of the Constitution is the law. Under this positivist view, originalism is the law and and therefore one can make a normative argument that the original meaning should be followed. I have expressed skepticism about this argument: my tentative position is that the law allows, within significant limits, both originalism and nonoriginalism.

Steve Sachs has a new paper out that attempts to develop the positivist originalist argument further. In The “Constitution in Exile” as a Problem for Legal Theory, Steve in part responds to my post questioning this positivist argument:

On its face, the jurisprudential objection is quite plausible. It has even persuaded some originalists. Michael Rappaport, for example, straightforwardly defends originalism as a “desirable” reform program, rather than as a consequence of “following the law.” He notes that “people are in jail in the U.S.—lots of them—for violating laws that are inconsistent with the Constitution’s original meaning,” and that “nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.” In this context, “[w]hat does it mean to say that the Constitution’s original meaning is the law?” More generally, “[w]hat does it mean for something to be the law, if the legal system is not enforcing it?”

Steve’s paper is excellent and I strongly recommend it. The paper contains all types of interesting insights from which I learned quite a bit. But in the end the paper does not really move me any closer to the view that the original meaning is the law under positivism.

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Hans Kelsen

One of the peculiarities of the divide between the Anglo American world and that of Continental Europe is that positivism has taken two different forms. In the Anglo-American world, H.L.A. Hart is the key figure and the Concept of Law has taken on an extraordinary importance. On the Continent, however, Hans Kelsen is the most important positivist.

One important question is why there should be this divide. At first glance, it seems like an example of prejudice or chauvinism – each area prefers its own. Of course, people on each side might argue that their champion really is better – but that begs the question why each side so strongly prefers its own figure.

While I have read Hart, I have only read small portions of Kelsen. But reading this much of Kelsen reveals that his writing is in the style of much continental philosophy, which makes it quite hard for Anglo-Americans to understand (apart from translation problems). Continental writing, especially from the German speaking countries, is often filled with abstract language that is hard to understand, and to people from the Anglo-American world, often comes across as vacuous.

I have often wondered about this aspect of Continental writing when reading Friedrich Hayek, whose works I know quite well. For example, his discussion of a spontaneous order is an important advance, but it is often vague and unclear. It has taken many subsequent articles, by Anglo-American types and economists, to clarify it. I can’t tell you how many times I have been reading Hayek and have thought, “an example would really help here,” but rarely is one provided.

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A Course on Ronald Dworkin

There have been many discussions of Ronald Dworkin’s work in recent blogs.  For some examples, see Jim Fleming, Cass Sunstein, and Richard Epstein. Many people consider Law's Empire to be Dworkin's most important work on law.  For those interested in a college level course on the book, I recently listened to this one.  It is a 14 lecture course that spends 7 of the lectures discussing Law's Empire.  (The first several of the lectures are on legal positivism and H.L.A. Hart, and the last 4 are on Bruce Ackerman’s constitutional theory.) At times, I found the course frustrating, but it is hard…

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