Relying on the Court to enforce uniform opinions on rights when there is no consensus seems more like an invitation to civil war than to civil rights.
Last month, the Center for the Study of Constitutionalism Originalism at the University of San Diego hosted a talk by leading Libertarian scholar Richard Epstein based on his new book The Classical Liberal Constitution. Commentary was provided by Larry Alexander, David McGowan and myself. You can watch the talk here. (You have to scroll down a little.)
Richard’s brand of originalism works as follows. He believes that the constitutional language should be given its original meaning, but that the language is often incomplete or vague. Therefore, he argues that the language must be interpreted in accordance with some background principles, and those are classical liberal principles, because the leading political theory at the time of the Constitution was classical liberalism. As a result, Richard is able to argue that the Constitution’s originalism meaning leads largely to classical liberalism.
While I found Richard’s argument powerful, I nonetheless disagreed with Richard’s interpretive approach to a certain extent. First, the principles of classical liberal sounds like a single approach, but in fact at the time of the Constitution there were a range of different classical liberal approaches. It is therefore difficult to know which of these approaches to apply. For example, some classical liberals believed in individual rights more than others who reserved a larger place for community norms or legislative enactments. How do we know which of these different approaches to apply? This reduces (although does not eliminate) the value of looking to classical liberal principles.
Second, when determining the meaning of unclear provisions in the Constitution, one must look to a variety of matters, including the legal meanings at the time as well as the content of the practices and laws that existed in the states. These meanings, practices, and laws will sometimes conflict with classical liberal principles, but they should be followed nonetheless. The upshot of all this is that I believe that the Constitution’s original meaning will end up being less strongly classically liberal than Richard does. In sum, it will be a classical liberal document, just one that involves a mix of different provisions, some more and some less classically liberal.
For those interested in my comments, they begin at the 36 minute mark of the video.