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Originalism’s Legal Turn as a Libertarian Turn

Over the last few weeks, the Liberty Forum has featured several important and insightful essays on originalism, two of which I would like to explore here—partly as a way of seeking to understand Justice Gorsuch’s decision to concur with the four liberal Justices in an important immigration case, Sessions v. Dimaya (2018).[1]

The first essay, by John McGinnis and Mike Rappaport, explored New Originalism’s so-called “legal turn.” As a result of this turn, law professors and courts have become the dominant sources of original public meaning, often prevailing over other sources (such as majority will and historical analysis) in what New Originalists dub the “construction zone.” In contrast with the highly circumscribed “interpretation zone,” the construction zone permits a wide range of disagreement over how to discern the Constitution’s original public meaning.

The second essay, a response by Ilan Wurman, argued that the transition from Old Originalism (focusing on “original intent”) to New Originalism (focusing on “original public meaning”) is largely co-extensive with the legal turn. Although Wurman expressed doubt in that essay as to whether legal meaning should supplant original public meaning when the two conflict with one another, Wurman claimed that this is not a pressing issue in practice. This is because original public meaning is often times sufficiently capacious to be consistent with whatever lawyers and judges acting in “good faith” hold it to be as a matter of law.

As a political scientist and legal theorist, rather than a law professor, I don’t consider it within my domain to engage the normative claims in these two essays. To be sure, I have my doubts about whether the legal turn is constitutionally and politically desirable. But such evaluations are not within my expertise.

I do wish, however, to engage their descriptive claims. As someone who has researched and written extensively on the legal conservative movement, I can affirm that McGinnis and Rappaport are indeed correct in observing the “legalization” of originalist discourse, and Wurman is also on solid ground in claiming that the New Originalism transition from “original intent” to “original public meaning” coincided with this legal turn.

But what these law professors miss—and what leads me to write this essay—is that originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell, a story about how legal scholars and institutions have consolidated control over originalism discourse and used this control to lead originalism away from a conservative and toward a libertarian agenda.

Old Originalism v. New Originalism

The original originalism—what is often derided by New Originalist scholars as Old Originalism—had three attributes that no longer feature prominently in originalism discourse.

One, Old Originalism was available to the educated citizenry at large, not just elite lawyers. As a result, a variety of actors outside the courts and legal academy—including political philosophers (such as Willmoore Kendall), politicians (such as Sam Ervin), and journalists (such as L. Brent Bozell, Jr.)—regularly appealed to original understandings.

Two, the critical force of Old Originalist thought focused on cultural and social (as opposed to economic) issues. Consider, for example, Bozell’s The Warren Revolution: Reflections on the Consensus Society (1966), Lino Graglia’s Disaster by Decree: The Supreme Court Decisions on Race and the Schools (1976), and Stephen Presser’s Recapturing the Constitution: Race, Religion, and Abortion Reconsidered (1994)—all of which challenged the Warren and Burger Courts’ anti-originalist activism in race and church-state relations.

Three, Old Originalists were most interested in establishing that a jurisprudence based on “original intent” required a narrow judicial construction of the Fourteenth Amendment to preserve the basic constitutional authority of the states over most moral and social matters.  These originalists therefore took issue with the Warren Court’s use of the Fourteenth Amendment to expand federal judicial and legislative authority at the expense of local customs and traditions.  The best example of course is Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment (1975), but all of the above books also focused on the federal judiciary’s overly broad constructions of the Fourteenth Amendment.

This contrasts starkly with the New Originalism agenda. For one, New Originalism, with its abstruse nomenclature, is a lawyerly enterprise, firmly under the control of the few law professors and federal judges who engage in the practice.

In addition, the New Originalist idée fixe has not been to oppose the Warren Court. Rather, New Originalists have directed their ire toward the Hughes and Stone Courts that facilitated the New Deal. In particular, New Originalists have condemned the Hughes and Stone Courts for placing economic liberties (such as the freedom of contract) on a lower constitutional footing than social liberties.

Accordingly, many New Originalists have not sought to narrow the Supreme Court’s constructions of the Fourteenth Amendment, as their predecessors did, but to expand them. Indeed, whereas Old Originalists were suspicious of the Fourteenth Amendment “incorporation” enterprise and the concomitant judicial discovery of unenumerated liberties, New Originalists generally support this “judicial engagement,” to a degree arguably beyond the activism embraced by progressive scholars and judges. As a result, New Originalists have made the Slaughterhouse Cases (1873), as opposed to any Warren Court decision, the poster child of judicial mischief.

This has had the effect of realigning the Left-Right paradigm as it had been applied to law. Under the old ideological landscape, the decision in the Slaughterhouse Cases was generally seen as conservative and originalist. It was assailed by liberals (for unduly limiting Fourteenth Amendment guarantees against state governments) and defended by conservatives and Old Originalists (for conserving distinct spheres for federal and state powers).[2] But under the new landscape wrought by New Originalism, the Slaughterhouse Cases (and the judicial deference to state authority that the decision represents) has become despised by the legal left and by many on the legal right also.

What caused this realignment of the ideological spectrum and its application to law?

New Originalism and the Libertarian Turn

Three important changes in the legal academy and originalist scholarship have coincided to facilitate this transformation.

One is the ambiguity of “original public meaning.” Old Originalism’s focus on original intent created a problem of selection: Whose intent should control? On federalism questions, for example, we will get very different answers if we ask Alexander Hamilton, Joseph Story, and John Marshall, as opposed to Thomas Jefferson, St. George Tucker, and Spencer Roane.

New Originalism’s focus on public meaning dissolved this selection problem but replaced it with a determinacy problem. Indeed, there is increasing consensus among legal scholars that public meaning is a vastly more ambiguous concept than intent and therefore requires significantly greater political judgment—this, again, is what New Originalism calls “construction.” But why should life-tenured, unelected judges be making these discretionary political decisions?

This is where the second feature—the legal turn—comes into play. If we think of the discernment of public meaning in the construction zone as a lawyerly enterprise, so that legal methods (such as the use of judicial precedent and canons of construction) are used to supply the content necessary to fill in the gaps created by the New Originalism transition to public meaning, then the under-determinacy of New Originalism becomes less of a problem.

But if New Originalism’s under-determinacy is going to be managed by courts and the law professor class, that raises a third problem—the question of who these managers will be. Here, it is important to note that, over the last 20 years, traditionalist conservatives have dwindled in the legal academy, to the extent that they are now approaching extinction, with lonely traditionalist holdouts like Lino Graglia and Stephen Presser both approaching retirement. Studies show that the legal academy overall is more than 80 percent liberal and at the elite law schools the faculties tend to be more than 95 percent liberal. And the few “right-of-center” law professors are of a decidedly libertarian, non-traditionalist orientation—a more palatable form of thought to the Left-dominated academy.

In sum, if New Originalism creates an under-determinacy problem to be managed by the few law professors who practice New Originalism, and almost all of these practitioners are libertarian, then it seems likely that New Originalism will have a libertarian slant.

That is exactly what we are starting to see. Indeed, as a result of libertarianism’s rise within the legal conservative movement’s institutions, and New Originalism’s attendant ascension as the movement’s unifying principle, New Originalist techniques are now routinely employed to produce socially progressive, libertarian legal arguments that would have shocked originalists even a decade ago. New Originalism has even paved the path for a progressive originalism and a multicultural originalism.

Thomas Colby has observed that, in opening up the uncertainty of original meaning, New Originalism sacrificed the original appeal of originalism—judicial constraint. But this has not just meant the loss of constraint—it has also meant the loss of traditional conservatism, with New Originalism’s uncertainty being deployed to argue for open borders, the right to same-sex marriage, and the right to an abortion.

In understanding this transformation of originalism and the legal conservative movement, it is important to clarify that it did not necessarily arise as a result of a new legal or historical understanding.  Instead, it seems to have been first and foremost a political turn.

The Political Antecedents of the Libertarian Turn

The most direct antecedents trace to the 1980s, when Clint Bolick (Institute for Justice founder and current Arizona Supreme Court Justice) was a Department of Justice lawyer. At this time, Bolick was thinking about how to frame the emerging legal conservative movement as a more libertarian, economically driven version of the civil rights movement. Bolick thus sought to shift the conservative agenda, so that struggling racial minorities, as opposed to working-class “members of the Teamsters Union,” would become the targeted beneficiaries of libertarian-oriented constitutional litigation, such as school-choice and economic liberty cases.

Bolick’s DOJ notes indicate that in the late 1980s he came up with the idea that the Slaughterhouse Cases, with its narrow view of economic liberty and its anti-Reconstruction slant, represented a useful foil in constructing this libertarian, civil rights agenda.  Indeed, in his  DOJ notes on the case, Bolick wrote how “cts. have used [the] 14th Am. to restrict state auth. in other areas—but not economic liberty,” and how this neglect of economic liberties had hampered the civil rights movement.

This strategy led Bolick to oppose the Old Originalism leader, Robert Bork. As Bolick proclaimed in a 1987 speech to the Allied Jewish Federation, just a month before the Senate’s decision not to confirm Bork to the Supreme Court, “much to our consternation Judge Bork has taken a dim view of [economic liberty] arguments, just as he has held in disdain liberal judicial activism.”

That Supreme Court seat, of course, ended up going to the socially progressive, libertarian Justice Kennedy—a substitution that in many ways presaged the future of the American legal right.

The Political Consequences of the Libertarian Turn

Bolick’s libertarian vision has grown dramatically in the legal conservative movement, and Kennedy’s libertarian vision has likewise grown, if not prevailed, on the Court. Indeed, even though there remains a thicket of scholars defending religious liberty on various grounds, few scholars make originalist arguments anymore about the cultural and religious topics that galvanized Old Originalists.[3] This may be because libertarians, the principal New Originalism managers, tend to favor both the secularization weakening public morality and the immigration agenda leading America’s demographic transformation.

Instead of concerning themselves with the originalist implications of these cultural issues and how they strike at the heart of the nation’s identity and future, New Originalists occupy their time with articles contemplating how to resuscitate Lochner and unravel administrative law.

So while many conservatives expressed shock over Justice Gorsuch’s recent concurring opinion in Sessions v. Dimaya (2018), New Originalists and libertarians responded with glee that this decision, which might protect thousands of immigrants with criminal backgrounds from deportation, represented a powerful attack on the administrative state.

Consider, for example, how Cato Institute’s Ilya Shapiro wrote, we should “expect Gorsuch to be more solicitous of immigrants, criminals, and every other kind of litigant caught up in the administrative state,” and that “doesn’t make him a squish,” but rather “an originalist.” Likewise, Orin Kerr tweeted, “I suspect that in time we will see Justice Gorsuch as primarily a libertarian Justice, not a traditional conservative Justice.”  Randy Barnett clarified Kerr’s tweet by writing that Gorsuch is “not a ‘libertarian Justice’ except insofar as the original meaning of the Constitution is libertarian—maybe even including the parts that ‘traditional conservative’ jurists treat as ink blots.”[4]  In an insightful thread, Josh Blackman proclaimed that “there is much to be excited about J. Gorsuch’s opinion in Dimaya” because it suggests that Justice Gorsuch holds libertarian positions on “unenumerated right[s]” and “economic liberty.” And George Will rejoiced, in his typically elegant prose, that “the principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state.”

It would be hard to read all of this praise celebrating the Gorsuch opinion without noticing that much of it came from the same libertarian scholars and lawyers who had opposed President Trump, supposedly on originalist grounds. This is of course ironic because these libertarians are now enjoying the benefits of the power they derived from the election—and on immigration, the cardinal feature of Trump’s campaign separating his working-class supporters from his elite critics. This is particularly ironic given that the 2016 election underscored that Trump’s working-class base represents the only realistic political path that these elites have to such power over the federal bench. This point, however, was nowhere to be found in the commentary on the opinion.

Nor was there acknowledgment that the controversy in Dimaya fell within the discretionary “construction zone,” which may partly explain why there were four votes on the other side of the Dimaya case, including the Court’s two most conservative Justices, Alito and Thomas. Given that originalism seems to have authorized ruling for, but also ruling against, Dimaya, Gorsuch’s opinion may tell us more about his political inclinations in exercising his discretion than it does about any substantive content inhering in originalism as a theory of law. Much of the law professor praise of Gorsuch’s concurrence therefore may be understood not so much as a victory for originalism in the courts, but as an expression of the libertarian victory over the legal conservative movement.

Thus, I am not sure I fully agree with Kevin Williamson’s recent essay in The Atlantic, arguing that the libertarian moment has passed. It is indeed true that, outside of the Beltway, there is precious little support for the libertarian agenda. Social and cultural issues—claims to family, faith, community, and nation—are emerging as the chief concerns of the American people, a trend that seems likely to intensify on both sides of the ideological spectrum in the coming decades. It is also true that President Trump’s populist conservatism—along with his promise to appoint judges in Scalia’s mold, which Gorsuch may very well turn out to be—do not point in the libertarian direction in the long run. But libertarians can at least take solace that this is far from the case in the legal academy and federal courts. And with both the legal left and much of the legal right now firmly behind an expansive federal judicial power, that may be all that matters—at least for now.

[1] The Dimaya decision held that a federal law providing for deportation of aliens convicted of violent crimes is unconstitutionally vague.

[2] That is not to say that the Slaughterhouse Cases was extolled as a beacon of originalist reasoning. Old Originalists criticized the decision’s dismissive treatment of the Privileges or Immunities Clause as creating two sets of constitutional liberties (that is, federal and state), a distinction that does not seem warranted by the text or framing. But Old Originalists generally contended that the Slaughterhouse Court got the decision right because, outside of basic contractual and property rights, the Fourteenth Amendment did not intrude on state authority over economic affairs. See Berger, 37-51 (holding that the Privileges or Immunities Clause was designed to protect only the limited rights enumerated in the Civil Rights Act of 1866).

[3] An example of this cultural and religious focus, mentioned above, was the Old Originalist opposition to the school prayer decisions on the ground that the Establishment Clause was originally understood to keep the federal government out of state establishments, thus rendering it beyond incorporation

[4] This is a reference to Bork’s dismissive comments about the Ninth Amendment and Privileges or Immunities Clause—two provisions where libertarian scholars derive significant libertarian meaning.

Reader Discussion

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on May 08, 2018 at 06:54:02 am

Spot on. This is illuminating and well-argued. I agree wholeheartedly.

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Mark Pulliam
on May 08, 2018 at 09:23:54 am

To me, the problem with earlier originalism is that it didn't take into account natural rights, the presumption of freedom or even the basic concepts of Federalism. Scalia's decision to go with nationalists in Raich was horrific in every way. His defense of Federal immigration law despite absolutely no delegated authority is equally terrible.

The problem is that "original intent" as used by the Founders simply mean the "original intended meaning", not necessarily the scope. The Founders seemed to naturally understand that the rationale for a law didn't limit the scope, that mentioning militias did not tie gun rights to militias. They protected freedom of speech, even though the reason was political speech. "Arms" rather than "existing weapons". They tried to stop slavery with all of the agreeable tools they had, hoping that future generations would finish the job.

Madison even was hesitant about the Bill of Rights, thinking it completely unnecessary as the Federal government limited powers didn't put it in the position to infringe the rights of others. Of course it couldn't outlaw speech, break into people's homes, invade states with armed thugs in peacetime or the press or weapons, there simply was no delegated authority for that. If they, outside known stick in the mud Adams, ever expressed moral horror over prostitution or drugs or other vice, I haven't seen it, let alone expressing the need for the government to do something about it.

The Founders would have found immense satisfaction in the 13th and 14th Amendments. They might be surprised to see the 14th applied to gay marriage, as if seeing their first car, but probably wouldn't be horrified by it. They WOULD be horrified to well past the point of rebellion over the "general welfare clause" interpretation and the misuses of the Commerce Clause, as well as ICE and the Border Patrol and Dept of Education. "Checkpoints for Americans? Not on our watch!" They viewed migration as a natural right of man, after all, do we have fewer rights than a flock of geese? Should we not be shooting down "illegal" geese for violating our laws? Madison himself expressed horror at the idea of both the "general welfare clause" interpretation (and outright dismissal) as well as that of the Feds getting involved in education.

Their constantly vocalized obsession with freedom as the single most important aspect of a society, beyond safety, beyond security was so prevalent, it is hard to imagine their horror at finding Americans so afraid of Muslims or immigrants that they would willing subject the country to massive Federal spy regimes, SWAT teams, armed check points, immigrant gulags, roundups, and such, most especially with no Amendment delegating such authority.

The Founders weren't necessarily moral libertarians ("libertines") but they were ETHICAL libertarians who would be amazed by our technological and social progress, but horrified by our 1984 dystopian government. So, when people trash the "intent" of the Founders as off limits, that only the text and dictionary meanings can be used to support originalism, this makes me go into full argument mode. Yes, intent matters, the broad intent, not any particular personal intent. The intent to restrict government, enlarge freedom, protect from invasion and crime, but NOT to produce crime, to produce strife, to create black markets, to create foreign enemies. There is something to be learned from putting yourself into the minds of these people, their situation, what they lived, what their priorities were. Puritanism had given sway to the ideas of natural rights and freedom by this time, it wasn't until the 1880s that suddenly vice and immigration and other "moral disorders" were an important thing to politicians again.

The only thing I would have to tell them if I could travel back in time is "The anti-Federalists were right. About everything".

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John Ashman
on May 08, 2018 at 11:13:09 am

"But if New Originalism’s under-determinacy is going to be managed by courts and the law professor class, that raises a third problem – the question of who these managers will be."

Merriam proceeds to raise the issue of the political orientation of these *managers*; and this is not entirely inappropriate nor is it without merit.

Yet, one may also ask "who these managers will be" with a view toward exposing a perhaps more fundamental problem / issue.

Shall the managers of COTUS (as it is ostensibly that which we are discussing, but more importantly WHO shall manage the American POLITICAL PROJECT) be of the Legislative, the Judicial or of The People? Merriam raises the issue of of "construction" and how this leaves ample room for "good faith" judging or "engaging" to provide the Judicial with the means (motive?) and opportunity to impose upon the political project its own unique conception of liberty. As COTUS is not a statute book, (properly so, BTW) such construction(s) of a new or different framework of liberty appears inescapable.

But should the Judicial be the sole masons of this foundation?

Leave aside for the moment the hesitancy of the Legislative; I fear there is nothing much to be done about that dissolute Branch.

In the current Legal universe, where do the People enter?

McGinnis and Rappaport, if I read them correctly, are open to a view that encompasses both original public meaning and one that recognizes that SOME COTUS text is best understood only by reference to legal terms of art. Such a view would still allow the general populace to participate in "managing" their political project, their regime.

Yet, it appears that once again, in a continuing response to the deficiencies of an earlier "new approach" to constitutional interpretation, construction, etc. we find the legal academy developing another "new" methodology that only serves to FURTHER INSTITUTIONALIZE it's monopoly on legal discussion and the consequent political prescriptions.

It at times appears as if the Legal Academy / Profession adheres to the practices of a medieval Guild that seeks primarily to sustain its dominant role in determining what the regimes basic document(s) and thus the original political settlement means.

This turn to "legalism" simply further displaces the citizen; it forces him to "acknowledge" that this is beyond my competence, this arcane text, this "legal" term of art, is therefore best left to lawyers / judges.

Talk about advancing institutional objectives - we now have the Legal Institution proclaiming that the document(s) that determine the obligations under which citizens must labor are ONLY to be divined by the legally trained (and properly accredited) mind. Your consent is neither needed nor appreciated!

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gargamel rules smurfs
on May 08, 2018 at 12:03:01 pm

"I, for one, welcome our new libertarian overlords"

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John Ashman
on May 08, 2018 at 13:55:22 pm

FWIW:

The only solution I can see is to these recurrent legal theory wars is for Congress to require that the Supreme Court decide every constitutional issue de novo and to make it clear that its decision in any case binds only the parties to that case. This works very in the rest of civilized world.

Construing the Constitution is not part of the Court's original jurisdiction and Art. III does allow Congress to limit the Supreme Court's jurisdiction and to make regulations regarding the Court's procedures in matters outside of the Court's original jurisdiction.

This would have the great benefit of de-politicising the judiciary. It a sad comment on the judiciary that the media now feels compelled to associate the judge or judges in any case of note with the president and political party that nominated them.

Then, it would not matter much if the honorable justices are basing their decisions on originalism, dynamism, coin flipping

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EK
on May 08, 2018 at 14:37:09 pm

This was good, but I think you place too much emphasis on rejecting SLAUGHTERHOUSE as a litmus test for the "New Originalists." Slaughterhouse and the 14th Amendment's original intent is still hotly debated even among those guys, in my opinion. On the one hand you've got the Kurt Lash interpretation, on the other x, etc. etc.

In my opinion the truth litmus test for "New Originalists" is accepting LOCHNER, and abandoning James Bradley Thayer's mode of interpreting in terms of tiers of scrutiny. Bork and many of the "Old Orientalists" accepted that New Deal mode of interpretation as dogma, and saw the "Lochner" as the ultimate bogeyman.

Perhaps it is a bogeyman; however, I sympathize with the "New Originalists" in not wanting to take all that New Deal legal training baggage at the same time I reject their Libertarianism on rights

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CJ Wolfe
on May 08, 2018 at 14:42:25 pm

^Rewrite of the last paragraph:
"Perhaps it is a bogeyman; however, I sympathize with the “New Originalists” in not wanting to accept all that New Deal legal training baggage. We should really think twice before accepting Oliver Wendell Holmes Jr. as the model for how we do law. At the same time I reject the New Originalists' libertarianism on rights and the moral purpose of law.

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CJ Wolfe
on May 08, 2018 at 16:06:38 pm

Given your earlier exposition, it would appear that the second comment is redundant!

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gargamel rules smurfs
on May 08, 2018 at 16:10:00 pm

"...upreme Court decide every constitutional issue de novo and to make it clear that its decision in any case binds only the parties to that case."

One could be happy even IF this applied only to District Courts and prevent some judicial politico from issuing National injunctions.

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gabe
on May 08, 2018 at 16:55:05 pm

Excellent piece. The myth that the Constitution's primary intention was protection of individual rights, rather than establishing a limited, constitutional government to achieve specified goals, is at the root of most of our current legal pathologies. Doubling down on the myth and adding to it yet more creative interpretivism by narrowly trained elites is not likely to bring improvement.

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Bruce Frohnen
on May 08, 2018 at 18:50:05 pm

Myth has become reality with the addition of a substantial number of rights protecting Amendments.

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John Ashman
on May 08, 2018 at 20:23:31 pm

Hmmm! I guess I missed the "Unrestricted right to Immigrate" Amednment.
when was that one passed?

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gargamel rules smurfs
on May 08, 2018 at 21:55:58 pm

It went without saying, but punctuated and nailed down on December 15th 1791 with the 10th Amendment.

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John Ashman
on May 08, 2018 at 21:57:12 pm

Why don't you like rights? The Founders fully understood them and loved them.

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John Ashman
on May 09, 2018 at 11:20:14 am

Ah, but I do, John. I disagree with the comment above by Bruce Frohnen that it was a myth that "Constitution’s primary intention was protection of individual rights." It actually was about that, and but the MEANS to protecting rights was setting up a limited but strong government, one of enumerated national powers. I think that's the argument of the early Federalist Papers. As Hamilton said in Federalist 1, "the vigor of government is essential to the security of liberty."
http://www.libertylawsite.org/2016/11/15/the-federalist-papers-and-us/

My point in the earlier comment was that the LIBERTARIAN version of individual rights is not the version the Founders believed in. Libertarians typically adhere to JS Mill's "Harm Principle," claiming the state has no just power to promote and regulate private morality. If you read anything by Washington about "ordered liberty," you'll know that is NOT what the Founders believed in. One piece of evidence to show this is the Founders' view of economic rights and private property. Hamilton, for instance, was NOT a free market radical, but believed it had to be regulated in some areas to serve the public good. There's not an ounce of truth to Randy Barnett's claim that "the original meaning of the Constitution is libertarian." They WEREN'T libertarians, they were much closer to a conservative view. I recommend Joe Postell's recent piece on the Founder's view of economics:
https://americanaffairsjournal.org/2018/02/regulation-early-america/

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CJ Wolfe
on May 09, 2018 at 15:26:12 pm

Hamilton was a bit of a radical (believing in things like an elected King for life and spending on various unenumerated things). But "ordered liberty" is close to what a lot of the founders believed. Saying the "original meaning of the Constitution is libertarian" is a bit too far. But they were not modern conservatives either. Maybe closer would be "classical liberal"? They were a blend of various modern notions, and they didn't all agree among themselves.

Instead, I think we need to focus on the Constitution provision by provision. But no provision should be left out (including the Ninth Amendment and the Privileges or Immunities Clause). They may have disagreed about a lot of things policy wise, but they wrote a Constitution and that is what we need to focus on.

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Devin Watkins
on May 09, 2018 at 16:01:07 pm

" Article 1, § 8, clause 4, of the United States Constitution specifically grants Congress the power to establish a "uniform Rule of Naturalization."

"By expressly allocating this power to Congress, the Constitution prevents the confusion that would result if individual states could bestow citizenship. The Constitution does not, however, explicitly provide that the power to deny admission or remove non-citizens rests with the federal government as opposed to state governments. Hence, in the early immigration cases the Supreme Court faced the problem of identifying the source of the federal government's exclusive and plenary power over immigration. Later cases found the plenary power to be an inherent sovereign power.

(cite: Univ of Minnesota Law, etc etc)

Gee, it seems as if THIS power was expressly GRANTED to the Congress not the States as it is a SOVEREIGN power and the STATES ARE CLEARLY NOT SOVEREIGN; and immigration powers being just one of many sovereign powers DENIED to the States.

So perhaps we should RE-date your comment to 21 June 1788!

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gargamel rules smurfs
on May 15, 2018 at 18:44:13 pm

What Devin said. The Founders were clearly libertarian or "classical liberal" at a federal level. They may have believed in "natural law" concepts of society at the state or local level but that is simply not relevant to the discussion. The harm principle is simply natural rights and the DoI and Constitution are dripping in them. It is one of the reasons they never thought about regulating immigration even though they worried about what might happen with it.

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John Ashman
on May 15, 2018 at 18:45:30 pm

It is pretty funny that you can't tell the difference between two words that are not remotely synonyms. In a unique twist of irony, even the INS can tell the difference.

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John Ashman
on March 25, 2019 at 05:57:31 am

[…] and 80s. In other words, originalism—now in iteration 3.0 according to some observers—is the new sandbox for the legal academy: fodder for the tenure […]

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The Many Flavors of “Originalism”
on April 09, 2019 at 08:50:29 am

[…] disciples (here and here) was predictable, given their wont for endless disputation, but the movement in the originalist camp—from “old” to “new”—warrants examination. […]

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Still Searching for the Judicial “Holy Grail”
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