Modern libertarianism has too narrow a view of social harm and too limited a role for government in encouraging mediating institutions that ameliorate it.
We are grateful that Jesse Merriam acknowledges the importance of the legal turn and our part in creating it. But we believe that he is mistaken in two important matters. First, the legal turn is not necessarily a matter of construction as opposed to interpretation. Second, the legal turn does not necessarily have a libertarian valence and indeed is likely to curb ideological bias.
Professor Merriam writes in his opening summary:
As a result of [the legal] 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.
But at least some versions of the legal turn are not about construction at all, but about interpretation. (Parenthetically, most originalists distinguish between public meaning, which is a matter of interpretation, and construction, concepts which Professor Merriam appears to conflate.) Indeed, our own theory of original methods originalism, which we argue began the legal turn, asserts that the Constitution is written in the language of the law. Thus, that language, both legal terms and legal interpretive rules, constitute the Constitution’s meaning, accessible through interpretation. The legal turn, as represented by original methods originalism, does not fill the construction zone, but narrows, and perhaps even eliminates it.
But more importantly, his essay is wrong in claiming that the legal turn is a libertarian turn. There is no necessary relation between the legal turn and libertarianism. The legal turn is a methodology of interpretation in our view, or a methodology of construction in the view of some others. Libertarianism, in contrast, is an ideology. People of various ideologies implement the legal turn methodology, but that is true of all constitutional theories.
And as a matter of fact many examples of the legal turn reach results that might be considered conservative, not libertarian. As we have mentioned previously, Ryan Williams recently deployed a legal interpretation of the Guarantee Clause to reject the notion that it could be a fount of judicially enforceable rights. Michael McConnell and Nathan Chapman argue on the basis of its legal meaning that the Due Process Clause is procedural, not substantive and thus offers no support for modern substantive due process jurisprudence. John McGinnis, one of the authors of this post, has written a piece based on the legal meaning of judicial power that casts doubt on the libertarian notion of judicial engagement at least as it is conventionally understood. Mike Rappaport, the other author, disagrees with this conclusion, showing that people of generally similar political views can employ the same methodology but sometimes reach different results.
To be sure, there are more libertarians in the academy than conservatives and that imbalance may possibly bias the implementation of the legal turn. But the imbalance might well skew the implementation of almost any constitutional theory. And, unlike many other theories, the legal turn imposes curbs on bias by making constitutional interpretation richly empirical. Any use of the legal turns requires a historical inquiry into facts about legal history that can be contested by other scholars. No legal theory of interpretation can eliminate ideological priors, but the legal turn is more likely to keep interpreters honest. That is one of its achievements.