Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
Over at the Bleeding Heart Libertarian Blog, Jason Brennan has a post on “What Libertarians Think about the U.S. Constitution” based on his new book Libertarianism: What Everyone Needs to Know. Of course, Jason does not speak for all libertarians on this issue, and certainly not for this moderate libertarian. I plan a couple of posts on Jason’s argument.
I should begin by pointing out that Jason’s criticisms of written constitutions and the U.S. Constitution bring to mind one problem that I have with less moderate libertarians. They often disparage the good that can be achieved in favor of the ideal that cannot. Written constitutions, including the U.S. Constitution, have been in the main an important force for liberty, even though they have not been perfect. Failing to recognize that undervalues what can be secured in the real world and what has been responsible for our liberty. This turn of thinking brings to mind the abolitionists’s zealous criticism of Abraham Lincoln for not being radical enough.
That said, I agree with some of what Jason says. Here let me consider a couple of Jason’s points. First, he argues that while the U.S. Constitution establishes a constitutional democracy, the constitution part is more important than the democracy part. For a libertarian, there are certain things that even a majority should not be allowed to do. Well, I certainly agree with that latter claim. Majority rule has it virtues and vices, and an ideal constitution would limit majority rule to its proper limited sphere.
Significantly, the U.S. Constitution adopted one version of this view. The democracy part at the federal level was limited through a variety of mechanisms, such as the state selection of Senators, as well as the separation of powers and federalism. Especially once the Bill of Rights was added, the original Constitution was a mixture of liberty protections and democracy.
Second, Jason bemoans that written constitutions are not self enforcing, pointing to the Soviet Constitution’s inclusion of all kinds of rights but its failure to protect any of them. This is true and important, but one of the excellences of the U.S. Constitution is that the Framers recognized this problem of “feeble parchment barriers” and took numerous actions to guard against provisions being ignored. The separation of powers, checks and balances, federalism, a Bill of Rights, judicial review – these were part of the genius of the Constitution, especially for its time.
It is true that over time certain of the U.S. Constitution’s limitations have become less effective. Federalism was overrun by the New Deal. On the other hand, other departures from the original meaning by the Supreme Court have actually promoted rights that libertarians would favor.
Probably the worst failure to enforce the Constitution involved the 14th and 15th Amendments. For many generations these amendments were not given full effect, led to the oppression of blacks who were forced to live under Jim Crow. Happily, though, these amendment eventually recovered much of their original meaning, which has protected the liberty of minorities and of citizens generally.
Overall, then, I believe that the U.S. Constitution has been of great value, even though it has not been perfect. Next time, I will turn to Jason’s claim that the U.S. Constitution was not intended to protect liberty but national power.