Libertarian Nonoriginalism

In my earlier post on activist liberal nonoriginalism, I discussed the methodology of this interpretive approach, which basically pursues liberal political principles to the extent that the Court can get away with it.

At the end of the post, I indicated that I wanted to discuss other kinds of nonoriginalism in the future. So here let me briefly discuss one of these types – libertarian nonoriginalism. These days my sense is that the dominant position among libertarians is to be originalist and to believe that the original meaning of the Constitution is a very libertarian document (although not a perfectly libertarian one). Randy Barnett is probably the leading person holding this view.

But my sense is that there are still some libertarians who hold the previously dominant nonoriginalist libertarian view. This view was different than activist liberal nonriginalism. It tended to look backward to the Lockian underpinnings of the Constitution. The standard libertarian nonoriginalist argument would contend that the dominant view held by the founding generation was a certain type of Lockian liberalism (of the classical type) and then they would argue that the Constitution should be interpreted in accordance with that type of liberalism.

At times, this approach seemed like it was being faithful to the original Constitution. But ultimately it was not. It was not looking at particular clauses or to the original meaning of the constitutional language. Another problem with this approach was that it assumed that the dominant political theory of the time was the version it most liked, even though the Constitution was a product of compromises between different views.

In the end, this type of libertarian nonoriginalism had a different feel that the activist liberal nonoriginalism. It was backward looking and had more historical support. It was certainly more congenial to my (moderate libertarian) political views. But while I would say that libertarian nonoriginalism was more originalist than activist liberal nonoriginalism, it was still not originalist.