Originalism and Legislative Deliberation

The point of Ilya Somin’s able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say that it’s “an important value” for many people, mainly his people. It’s, as the economists say, a preference, and we all have our preferences or values.

He is candid enough to write that all theories of constitutional interpretation are value-laden. There’s no such thing as surrendering one’s personal preferences in figuring out, and then deferring to, the will of our Framers. For him there is in the end nothing higher than one’s own will, one’s own autonomy, and those not forthright enough to acknowledge that they deploy words to maximize their own values are tyrants masquerading as moralists. Being for negative liberty or self-definition all or almost all the way down is being against having to submit to willful political (or moral or religious) definition by other willful beings. Negative liberty means deferring to no personal preferences but one’s own.

Somin writes to help libertarians get what they want in our country. If he lived in a European social democracy, he would not be an originalist. There, the intention of the constitution-devisers was to establish a welfare state and subordinate individual preferences to some conception of the common good embodied in governmental policy. There, Somin’s goal would be to disrupt the constitutional tradition and ultimately come up with a new and better constitution. One kind of disruptive innovation he would doubtless favor, whether there or here, is judges subverting the will of the Constitution’s framers through interpretive ingenuity.

As Hayek explained so well, a libertarian is really a liberal—or no Burkean respecter of custom and tradition as such. It just so happens that in America, the libertarians can ally with the conservatives in respecting the very classically liberal 1787 Constitution. Even Ayn Rand allowed as much.

Federalist 49 defended the decision to make constitutional change extraordinarily difficult or, as Somin puts it, “supermajoritarian.” Even good government can’t dispense with stability, which comes with the veneration time bestows on everything that’s old and hard to change. So some Americans are moved by the classically conservative instinct that regards the Founders as great and wise men, and the history of our country as a falling away from their nobility.

It’s natural for conservatives to buy into a narrative of decline, and their “originalism” means recovering what we have lost. We can say that Somin deploys that veneration as an instrument in the service of his non-conservative agenda.

Libertarians these days are about recovering the “lost constitution,” which means the original understanding of the limits on government when it comes to operation of the market and property rights. The country has, in fact, gotten less libertarian or classically liberal over time regarding economic regulation, and our Supreme Court has gotten less aggressive in defending negative liberty against government regulation, government redistribution of income, and property rights in general.

From this partial view, conservatives and libertarians share in being anti-Progressive. Libertarians put forth “originalism” to counter the theories of a “living constitution” that have encouraged the intrusions of the modern state. Their countering is not so much Founderism as it is an insistence that most of the change celebrated or institutionalized by “living constitution” theories has caused a contraction of negative liberty.

So when Somin evaluates theories of living constitutionalism, it is purely for their degree of usefulness for sustaining and enhancing negative liberty. Against Ronald Dworkin’s idea that the constitutional text should be interpreted through the lens of reigning liberal theories, Somin objects that we can’t be sure about the content of said theories. If Rawls rules, as he still does in most of our law schools, the result might be even “welfare rights.”

If, on the other hand, more of our law schools were to become like George Mason, then libertarian “law and economics” theory might actually be better than what the Framers had in mind. Somin admits, after all, that the Framers aren’t as libertarian as libertarians are these days, if only because the Framers sometimes allowed politics (and democracy!) to trump economics. The trouble with living constitutionalism is that no one can be sure that whatever theory is fashionable in a given moment is their own values theorized. So originalism properly understood is better because it stabilizes interpretation in a form that libertarians can believe in.

We can begin to see now how Somin’s value-laden defense of originalism differs from the natural-rights originalism of Justice Clarence Thomas. Thomas’ jurisprudence of natural rights would, like Somin’s, deploy the privileges and immunities clause to allow the Court to protect rights not specifically mentioned in the Constitution. But Thomas’ standard is not his own partisan value-maximizing; it is the text of the Declaration of Independence as the authoritative exposition of the truthful natural-rights philosophy that guided the Framers of the Constitution. For Thomas, taking his lead from the West Coast branch of the followers of Leo Strauss, justices should either really believe—as a matter of reason—that this philosophy is true and has not been superseded by any evolution in liberal thinking, or they should act as if they believed it was true because it is the foundation of that Constitution which they are called to interpret.

Somin, in principle at least, dissents from the Declaration of Independence on “the laws of Nature and Nature’s God” as being the basis of our inalienable rights, for he accepts the distinction between facts and values that is part of the science of economics. Still, he hopes to convince nonlibertarian judges to affirm his case for originalism without necessarily affirming his consistently liberal values.

It’s hard to see how that strategy could possibly succeed. He finds a ready ally in Thomas on many constitutional issues, but that’s because Thomas’ philosophical understanding of the truth about who each of us is overlaps considerably with Somin’s “negative liberty” values. And there’s a different kind of overlap with the “Left libertarianism” of Justice Ginsburg, who would maximize the negative freedom of women and gays. To those, however, whose values do not overlap at all with his, Somin says nothing that would draw them in the direction of originalism.

Justice Scalia is, of course, a different kind of originalist or, better described, textualist. He remembers that justices are merely lawyers and have no warrant under the Constitution either to use the law to maximize their personal values or to be philosopher-guardians. His general view is that, when in doubt, defer to what legislatures have done and avoid disrupting longstanding traditions. The Court, generally speaking, shouldn’t be the source of innovation. And so Scalia’s originalism is sort of the opposite of Somin’s. Scalia follows the intention of the Framers as the authoritative lawgivers and, in interpreting the law, does what he can to avoid replacing their intentions with his own. He even sees value in not replacing longstanding precedents that are very questionable. A lawyer, as Alexis Tocqueville explained, respects settled law as such.

The West Coast Straussians sometimes call Scalia a positivist, meaning someone who thinks there’s no standard higher than the will of legislators. Scalia, however, clearly believes that the natural law is higher than the positive law; higher, even, than that document of positive law ratified in 1787. But, as a judge (lawyer) interpreting the Constitution, he doesn’t allow his personal values or his philosophical convictions to distort what the text actually says. Scalia’s interpretive principle is pretty positivist, but positivism or conventionalism doesn’t describe who he is as a whole person. That means, for one thing, that Scalia is all for natural-law arguments being introduced into legislative attempts to resolve political controversies.

Scalia’s mode of interpretation doesn’t lead to the conclusion that the officially positivist, pro-slavery Dred Scott decision of 1857 was right; Taney willfully misconstrued the Constitution by saying it distinctly and expressly affirmed the right of property in the Africans brought over to America to be enslaved. And what is, for Justice Thomas, the authoritative statement by a justice on race—Harlan’s dissent in Plessy v. Ferguson (1896)—is based on the textual fact that our Constitution is “color-blind” and nowhere treats a particular person as a member of a class or caste.

More recently, the Court’s insistence—shared by Thomas and Scalia—that affirmative action laws treat individuals as individuals and be strictly limited to remediating the effects of unconstitutional legal racism finds its foundation in Harlan’s textual observation. Even, or especially, Lincoln’s appeals to natural right depend on showing how the naturals-rights doctrine of the Declaration of Independence was actually embedded in particular constitutional provisions.

It’s true, as Somin says, that the “free-labor ideology” of Lincoln’s Republicans connected their opposition to race-based slavery with the dignified freedom of working for oneself. The Republicans were opposed, libertarians can say, to any form of governmental constraint of the labor of free persons that is inconsistent with our Constitution, and that genuine progress under the Constitution is always in the direction of free labor.

When it comes to race especially, we can call that progress in working out the implications of our Founders’ intention. And the Fourteenth Amendment’s main purpose was to extend the color-blind legalism of our Constitution to state law. Whether your opposition to the arbitrary cruelty of racism is a libertarian value, or respect for our Framers’ intention, or stems from a belief in the inalienable natural rights we all share, you can affirm the Court’s using the Constitution to strike down racist legislation.

Libertarians typically want to go further and think of the law that limited bakers’ freedom of contract (see Lochner, 1905) or that compels workers to join a labor union as a classist version of slavery. They typically slight the fact that such labor laws originate in the (arguably misguided but still sometimes successful) intention of protecting the dignity of particular workers.

Regarding free labor in general, libertarians do well to promote originalism in construing the Constitution. They certainly should say that Scalia errs by preferring allegedly settled New Deal precedents to the actual text of the Constitution, although even Somin says that the people have a legitimate interest in their attachment to erroneous precedents. For now, William Voegeli is right that if people were brought to see that their entitlements were unconstitutional, they would still regard them as indispensable to their personal security, and constitutional liberties be damned. And so Randy Barnett is right that the constitutional case against the welfare state has to be made far more in the court of public opinion than in the Supreme Court.

But for Somin, maximizing libertarian values goes beyond supporting free labor and opposing economic regulation; it extends to personal liberty or individual choices outside the workplace. The issue today, of course, is whether the Court has the warrant to announce a constitutional right to same-sex marriage. It appears to be part of Somin’s value-maximizing strategy to simply ignore  Roe v. Wade (1973) and the controversy that persists over its judicial imposition. Barnett is much more forthcoming in saying that a consistent libertarian originalist has to be loud and proud in considering both Lochner and Roe as rightly decided. Such a consistent libertarian is, then, the opposite of the consistently conservative Scalia, who considers both those bell-weather cases to have been wrongly decided. Virtually everyone who celebrates libertarian progress on the personal liberty front celebrates the “judicial activism” that begins with Griswold v. Connecticut (1965) and that will culminate (for now) in the Court’s affirmation of marriage liberty (and marriage equality).

It seems to me that anyone simply wanting to maximize negative liberty would want to join the plurality opinion in Planned Parenthood v. Casey (1992), in considering Brown v. Board of Education (1954) and Roe to be “watershed” decisions or superprecedents and hence exempt from the ordinary process of judicial review and possible reversal. The cause of human liberty depends, the Court claimed, on some issues’ being removed by the Court from political controversy—those that have to be settled to ensure that blacks and women can function freely and equally as economic and political actors. That unprecedented deference to certain precedents is hardly originalism.

But here are some differences between Brown and Roe: Brown, a unanimous decision, has in fact been removed from controversy, and (whatever the deficiencies of Warren’s opinion) can be justified by a plausible originalism. Roe was not unanimous, continues to be controversial, and can’t be justified by an originalism rooted in the plain intentions of the Framers. Not only that, the originalists Thomas (and Scalia) and Somin part company on the issues of abortion and same-sex marriage, and the conservatives currently serving on the Court were all appointed by Republican presidents on the political premise that true originalism is opposed to the kind of innovative activism that produced Roe.

That means that the justices who support Somin on the personal liberty front—being basically Democrats—tend to oppose him on the economic liberty front (see especially the Obamacare decision). As I’ve said, when it comes to the liberty of women and gays, the radical individualist is the admirably uncompromising Ginsburg.

From Somin’s (or Barnett’s) point of view, Kennedy is the only member of the Court who wants to deploy judicial review to anywhere near consistently maximize negative liberty. And when it comes to personal liberty (which is, for Kennedy, really relational autonomy), it is very difficult to say Kennedy is an originalist. It might be more accurate to say he’s a kind of libertarian living-constitutionalist. He said in his rather magisterial and highly creative opinion in Lawrence v. Texas (2003) that the Framers deliberately gave the word “liberty” no particular content, because they knew they were blind concerning the full significance of its meaning. That meaning has unfolded over time, as each generation of Americans has found laws previously thought to be necessary and proper to have become oppressive. Liberty, in this view, is a “weapon” deployed by each generation to achieve an unprecedented maximization of freedom to define the mystery of one’s own relational identity free from governmental interference.

Now, let’s assume that this is a tolerably accurate account of America’s political evolution—if only on the personal liberty front. And let’s even assume (now we’re really reaching) that our Framers didn’t think they knew what liberty was with a good deal of precision. The question remains whether it makes sense to say that the Court must take the lead in declaring that the latest results in the unending war on behalf of liberty are what the Constitution demands of us all.

Kennedy, on personal liberty, is very close to agreeing with Dworkin: The Constitution is what the trendiest liberal theory now says it is. And Kennedy has even added that those who oppose that theory with a view of marriage that until recently was accepted by almost everyone—including all the great philosophers and President Obama himself—now have no reasonable basis for their opinion. Anyone who’s read Kennedy’s opinions can see that his intention is to write as a philosopher, going beyond the Constitution to musings about dignity and the mystery of personal identity that are in no obvious sense constitutional. And anyone who’s studied philosophy can’t help but notice he’s not so good at it.

But that’s not a problem if the point of creative originalism is to maximize the arbitrary value of personal liberty. The only issue is whether that creative originalist successfully gets away with it.

To be sure, Somin doesn’t really consider his values arbitrary. He thinks they oppose cruelty and ignorance, and he would like to see the judiciary maximize its power because it is typically more enlightened than our stupid and credulous legislators. But if we agree with Justice Thomas that true liberty has to be rooted in the whole truth about human nature, there’s a lot to be said for legislative deliberation and compromise, just as there’s a lot to be said for the proposition of Thomas and Scalia that issues such as abortion and marriage—involving as they apparently do the nuanced balancing of competing human goods—are left by our Constitution for our legislatures to decide.

When it comes to abortion, there are some rather libertarian defenders of a kind of judicial activism with the aim of affirming natural rights, such as Hadley Arkes. Arkes offers plenty of reasonable arguments to the effect that the Court should, at least eventually, declare all laws allowing abortion unconstitutional as a violation of the right to life. Arkes also claims (though not in his response to Somin in the present debate) that marriage is an irreducible relational institution rooted in natural purposes and the indisputable biological fact of the complementarity of the biological man and the biological woman. Anyone who thinks about human nature—as did our leading Framers—knows there are natural limits to negative liberty. One of those, of course, is that liberty can’t be exercised to extinguish the biological life of others. Another might be that our Constitution can’t be construed to be hostile to laws indispensable to the flourishing of members of our species in our country.

In any case, natural-rights originalists disagree on how to interpret the Constitution when it comes to abortion and marriage, precisely because the text of the Constitution can’t be construed honestly to resolve the underlying moral and philosophical controversies.

Arkes’ certainty that abortion is the killing of a person with rights doesn’t have a clear foundation in the intention of the Framers, and so it can’t, in fact, be a foundation for judicial review. But those who are certain that the life of the unborn baby doesn’t trump, according to nature, the liberty of the woman to choose abortion don’t have that kind of foundation, either. It’s clear to me that we would have more reasonable abortion policy if there were a “safe space” honored by our Court for popular deliberation on this issue that, whatever the Court says, will continue to be with us.

And, as John McGinnis has reminded us, liberty, as a whole, would probably be better served if defining what marriage is were left to the states. If Kennedy is right about the arc of liberty in our country, then we are the generation that’s on the way to choosing same-sex marriage as a matter of public policy. But liberty to define what marriage is for oneself has to be balanced with other forms of human liberty, including the relational liberty to belong to an “organized religion.” Just as, as Kennedy explains, intimate relational autonomy is degraded when its content is regulated by the state, the same is true with the relational autonomy that is the freedom of each American to be a member of a church or other form of institutional religion. Accommodating the two forms of personal, relational liberty can’t be done by a Court that declares religious opinions about marriage to be rooted simply in irrational animosity.

Liberty, in truth, has to be understood, even under the law, as more than the negative liberty of isolated individuals. For liberty to be sustainable, we need some shared understanding of what our freedom from political domination is for. If Americans have reasonably competing views of what marriage (or abortion) is, and if neither the Framers of 1787 nor the authors of the Fourteenth Amendment had any thought at all about making same-sex marriage (or the pro-choice position on abortion) a constitutional requirement, then liberty is best protected by legislative deliberation and compromising accommodation.

All in all, it’s fine for Somin to write to maximize his personal preference, but we have no reason to trust him that our Constitution means simply what he says he does. He should have a respected place (thanks to our Framers’ true intentions) in our complicated process of political deliberation, in which the Constitution is never simply what the Court at any particular moment says it is.