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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.)        

Regarding intent, Fallon’s theory again introduces significant discretion.  The interpreter can rely on the specific intent (something that the framers specifically thought about) or the general intent (which aims at a higher level of generality).  These two types of intent can conflict.  For example, some people believe that the 14th Amendment framers specifically intended to allow segregated schools, but one might still conclude that their general intent to prohibit racial discrimination prohibited such schools.  Either the specific intent or the general intent (which after all leaves the interpreter significant discretion) could be used to promote libertarian results under the provisions mentioned in the previous paragraph.

The third type of argument, constitutional theory, also allows a libertarian justice to promote his agenda.  There are strong libertarian theories for both individual clauses and for the Constitution as a whole.  One theory of the Takings Clause, which has enormous consequences for the entire Constitution, is Richard Epstein’s Takings.  It is a very plausible view of the Constitution and strongly supports libertarian results.  One could also adopt a Lockean natural rights view of the Constitution as a whole.

Precedent, the fourth type of argument, is probably the biggest obstacle for a libertarian approach.  Many precedents, especially from the New Deal, have overturned libertarian positions to favor a more statist approach.  But these precedents can be avoided.  Under Fallon’s approach, there are two doctrines of precedent – a narrow doctrine that allows one to distinguish precedents and a broad one that allows one to read them to cover new cases.  Fallon believes that the justices can choose between these two doctrines in particular cases based on the values involved.  Thus, it seems clear that libertarians will often be able to avoid problematic precedents by reading them narrowly.

Value arguments are the fifth type.  Value arguments are not employed directly, but to resolve issues concerning the other type of arguments.  For example, value arguments might affect whether one interprets a precedent narrowly or broadly, how one interprets text that is ambiguous, or which constitutional theory to employ.  Thus, libertarians who embrace arguments based on libertarian values could use these values to prefer libertarian arguments in other areas.

In the end, there is a strong case that a justice could pursue at least a moderate libertarianism under this theory of the law.  While some originalists, such as Randy Barnett, argue that the Constitution’s original meaning supports results that are similar to a moderate libertarianism, that is not the only way to reach those results.  One can reach them under the positivist theories put forward by liberal nonoriginalist theorists.

Reader Discussion

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on March 24, 2016 at 15:27:11 pm

So what you are saying is that *clever* judges may make *clever* determinations deploying wither the *clever* interpretive theories / modalities of either the *clever* right or the *clever* left.

It is no more comforting for being unsurprising.

A question for you: It is unclear to me as to what your position is on proposition #5 - value?

It would seem that while you recognize that there may be some values driven elements to judicial determinations, that you would prefer this not be the case, or at least the influence of value should be somewhat less evident / weighted.

Yet, both you and John McGinnis in your own writings seem to assert that originalism is good precisely because it leads to *normative* or good outcomes. How is this not a reflection of a values induced or inspired judicial determination?

It may be that "values" consideration is unavoidable, contrary to what many of us would either wish or recognize.

Perhaps, the only value to be considered is the value(s) deriving from a recognition that our constituent law is / was intended to be a reflection of a non-instrumental polity; that is to say, that no specific determination, no end state, no preference for one faction / person, etc over another is to be afforded legal cognizance.
From this, much else would follow. Neither libertarian, nor Progressive outcomes would be favored.
Normative would mean there is no normative outcome.

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gabe
on March 25, 2016 at 13:04:25 pm

Gabe: We have both an interpretive theory and a normative theory. Our interpretive theory says that judges should look exclusively to the original meaning. Our normative theory says that looking to the original meaning would be good. Thus, our normative theory does not allow judges to consider value considerations when interpreting the Constitution.

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Mike Rappaport
on March 25, 2016 at 14:52:44 pm

Mike:

Ok, thanks for the clarification - makes sense!

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gabe

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