The most significant developments in the past year suggest a potent originalist future.
Clarifying the State of Our Liberty
I am grateful for to Peter Lawler for his interesting comment on my post. I agree with much of it. My focus in The State of Our Liberty—an implicit response to the State of the Union– was on the effects our government is having on liberty, which I think are generally not happy. Lawler believes, and I do as well, that technological developments may nevertheless help foster liberty.
Indeed, I am even somewhat more optimistic than Lawler in this regard, because I do not believe technology poses as much risk to equality as he appears to think. As I have written on this blog, technological innovation helps equality in important respects, because innovations create a pool of cheap and free goods that everyone soon enjoys. Middle class people and the very rich have more equal lives today than did the middle class and very rich in previous times, because both spend an increasing amount of time on the internet and their experience there is not dissimilar. And innovations like smart phones go down the income scale much more rapidly than do previous innovations like refrigerators.
Moreover, the social media of today equips a much broader group of people to spend a large part of their lives writing and otherwise expressing themselves through blogs and even Facebook postings. As Clive Thompson has written in his excellent book, Smarter than You Think, the personal creativity enabled by social media dwarfs that of the letter writing of old. Thus, I do not agree that even a robotic future will relegate people to lives of passive entertainment, which appears to be the view Peter Lawler ascribes to Tyler Cowen. They will be able to follow their passions in ways that are inexpensive and largely free.
I do have some reservations about applauding a court ordered march on behalf social liberties and I believe that Lawler may even be sympathetic to some of them. I concur with him that the human flourishing is more complicated than individual expression. The tradeoff between individuality and other values (often put in classical times as the tradeoff between liberty and license) changes over time as technology changes. That is why I think the better constitutional jurisprudence for human flourishing is one that emphasizes federalism—a polycentric form of social ordering. Federalism allows experimentation in tradeoffs by democratic decision making and then choice among experiments by individuals who are now freer than ever to move from state to state. This contrasts with Professor Randy Barnett’s jurisprudence that permits a very large role for the federal judiciary to invalidate state laws under vague standards like Justice Kennedy’s version of substantive due process. I also think that this jurisprudence provides a more accurate interpretation of our Constitution, as Nelson Lund and I begin to show in Lawrence v. Texas and Judicial Hubris. And empowering the federal judiciary under elastic readings of constitutional clauses is perilous in the long term for libertarians, because, depending on its composition, the Supreme Court could use that power to declare positive rights as well as negative rights.
One final point about my original post: I was not arguing for a moment that George W. Bush was as problematic for liberty as is Barack Obama. I was just noting that some important similarities between the two that mark the contemporary federal government as more unfavorable to liberty in important respects than it was under Reagan and even under Clinton, as he was disciplined by the Republican Congress.