The normative justification for originalism—honest reading—is compelling and causing cracks in the once solid wall of opposition to originalism.
Was Hayek an Originalist?
Two of my academic interests – one might even call them obsessions – have been Friedrich Hayek and Originalism. So, it is natural that I have long thought of writing about whether Hayek was an originalist. But now 11th Circuit Court Judge William Pryor has written an article on the closely related subject “Hayek and Textualism.” Judge Pryor’s piece is very good and I strongly recommend it.
The interesting thing about Hayek’s writings is that they contain some statements that appear to support originalism and others that oppose it. So, the answer to my question is not entirely clear. But, in the end, I conclude (with Pryor) that Hayek was an originalist of a certain sort – he favored following the Constitution’s original meaning understood not merely as the words of the Constitution, but also the principles that the enactors intended to be followed.
An example of Hayek’s support for originalism is the following statement on the American contribution to constitutionalism: Americans “regarded it as a fundamental doctrine that a ‘fixed constitution’ was essential to any free government and that a constitution meant limited government.”
But Hayek also made statements that evidenced tension with originalism: For example, he wrote that “in most instances in which judicial decisions have shocked public opinion and have run counter to general expectations, this was because the judge felt that he had to stick to the letter of the written law.” Especially the later Hayek seemed to believe that written language often could not fully capture our understanding of the workings of complex ideas and processes.
For these reasons, Hayek appeared to believe that the Constitution should be understood more broadly than the original meaning of the constitutional text. Criticizing developments in the 19th century, Hayek wrote:
“gradually, as the ideal of popular sovereignty grew in influence, what the opponents of an explicit enumeration of protected rights [in the Bill of Rights] had feared happened: it became accepted doctrine that the courts are not at liberty ‘to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the constitution but not expressed in words.’”
As Pryor explains, Hayek here means by “spirit”:
“the structure of the Constitution and the traditional Anglo-American legal guarantees of individual liberty the Constitution was understood to preserve – based on what he described as its ‘design,’ ‘discussions of the period,’ and early judicial decisions.”
Now, this understanding of the Constitution as including its spirit might seem nontextualist and even nonoriginalist. But Hayek defends himself by arguing that the Ninth Amendment was intended to protect these unwritten protections. He views Alexander Hamilton’s opposition to the Bill of Rights as based on the concern that “the Constitution was intended to protect a range of individual rights much wider than any document could exhaustively enumerate and that any explicit enumeration of some was likely to be interpreted to mean that the rest were not protected.”
Hayek might defend his understanding of the Constitution based on his reading of the Ninth Amendment. And he also argues that the 14th Amendment’s Privileges or Immunities Clause similarly protects unwritten rights.
If Hayek is correct about the 9th and 14th Amendments, then perhaps he could defend his understanding of the Constitution as a type of originalism. Of course, that’s a big if. Randy Barnett has a similar (but much more developed and defended) understanding of these amendments. In a future post, I hope to discuss the proper understanding of these Amendments.