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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.

Reader Discussion

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on September 14, 2018 at 19:51:42 pm

I'll say it again:

"Chasing *spirits* is the express duty of the Legislative Branch NOT the Judicial. sorry, Freddy!

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gabe
on September 16, 2018 at 15:26:38 pm

Pushing on with Tom West, what did you make of his struggle with natural law and the law of God and God's nature that occupied most of the first 100 pages of his work?

I found it impossible to follow and I haven't changed my opinion of Hillsdale's history department.

I think West is over his head. Truly, one needs more background in the English common law, Anglo-American history dating back to 1533 and Reformation theology than West seems to possess to attempt the argument that he is making.

He also seems to think of his "founders" of the Republic as something like Moses the law giver. That is chauvinistic idiocy.

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EK
on September 16, 2018 at 17:25:36 pm

Yep, it did seem as if he struggled with Natural Rights. I took it as an attempt to lay the foundation for the remainder of the book - but much of it seemed strained.

that being said, I do think he made a good case for the argument that the founders did not simply leave us free to pursue any and all hedonistic pursuits but rather were quite cognizant of the need for some tempering elements on liberty and that they were not at all averse to using government to *encourage* such virtuous behavior and, indeed, to punish, shall we say, "excesses" of liberty.

Personally, I find it difficult to convincingly demonstrate (prove?) "Natural" Law and the Law of God in any definitive / philosophical sense. Either it is beyond my limited capability or I am overwhelmed by a sense of uncertainty. From a purely prudential standpoint, it "clicks" and I accepted West's arguments as a solid prudential justification for those limits upon liberty that the founders, and indeed the general populace of the time believed to be entirely appropriate to good civic order.

But when it comes to *ultimate* ontological proof, I am apparently missing something.

"“What the mind cannot accept, the heart can finally never adore.” - John Shelby Spring

"The tendency has always been strong to believe that whatever received a name must be an entity or thing, having an independent existence of its own; and if no real entity answering to the name could be found, men did not for that reason suppose that none existed, but imagined that it was something peculiarly abstruse and mysterious, too high to be an object of sense. The meaning of all general, and especially of all abstract terms, became in this way enveloped in a mystical base." - John Stuart Mill

Perhaps, like the men of Mill's quote I also fall victim to the peculiar effects of "naming"

As to "Moses" comparisons, I have always thought the the *reality* of the founders was more impressive than the hagiography on offer from many historians / political theorists.

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gabe
on September 18, 2018 at 11:11:20 am

There is order in Love, as there is order in Truth, for just as every element of Love will serve to complement and thus enhance the fullness of Love, so, too, will every element of Truth serve to complement and thus enhance the fullness of Truth.

Truth and Love cannot serve in opposition to one another.

God Is Perfect Love. Love Exists In Relationship. Love Is Ordered To The Personal And Relational Dignity of the persons existing in a relationship of Love, (see The Most Holy And Undivided Blessed Trinity) which is why a man is not called to Love his wife, in the same manner as he is called to Love his daughter, or his son, or his mother, or his father, or a
friend. Disorderly love, is Love’s counterfeit.

Love is not possessive, nor is it coercive, nor does it serve to manipulate for the sake of self gratification, for authentic Love serves only for The Good of one’s beloved.

Caritas In Veritate; Veritate In Caritas.

From The Beginning, because we are God’s beloved, we have been ordered towards Perfect Love. Love is a Gift, given freely from the heart, and thus we have been given Free Will, so that we can choose to Love God, The Ordered Communion Of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity, as God Loves us, by accepting Salvational Love, God’s Gift of Grace and Mercy.

If it were true that it is Loving and Merciful that we remain in our sins, and not desire to
overcome our disordered inclinations so that we are not led into temptation, we would not need Our Savior, Jesus The Christ.

Christ has Revealed, through His Life, His Passion, And His Death On The Cross, That No Greater Love Is There Than This, To Desire Salvation For One’s Beloved.

At the end of the day, it is still a Great Mystery, but it is no mystery that The Ultimate Cause Of All Being, Is Perfect Love. Man was created to Know, Love, and Serve The Most Holy And
Undivided Blessed Trinity, in this life, so that hopefully, we can be with God and our beloved, forever, in Heaven. (See The Baltimore Catechism)

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N.D.
on September 18, 2018 at 11:27:11 am

Further reading on Natural Law:

http://www.scborromeo.org/ccc/p3s1c3a1.htm

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N.D.
on September 19, 2018 at 05:47:13 am

[…] my last post, I explored in what way Hayek might be thought of as an originalist. I wrote that Hayek relied to a […]

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Image of Protecting Traditional Rights with the Ninth and Fourteenth Amendments
Protecting Traditional Rights with the Ninth and Fourteenth Amendments

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