Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
Richard Primus has argued that it would not make sense for a libertarian to be an originalist. But his arguments impose an unreasonably high standard for a libertarian’s choice of interpretive method, and reflect, like another recent post, a misunderstanding of originalism.
First, he says that the Constitution does not entrench libertarian principles as such. True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism. Instead, the question should be whether an originalist view would move constitutional law today toward more libertarian results than plausible competing interpretive theories. And here the answer is yes.
First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers. While the Constitution did not much limit state power within state borders (and states retained huge authority even after the Fourteenth Amendment), the capacity of citizens to exit and move to other states gives the individual substantial leverage against most governmental power. Indeed, that structure, at least in an era of low transportation costs, has some kinship to the meta-utopia in Robert Nozick’s Anarchy, State and Utopia, where people can migrate between and choose the bundle for rights they prefer.
The Constitution also largely creates rights against the government, not claim rights to government services. This design favors the libertarian as opposed to the social democratic view. For a libertarian, retaining this design is particularly important today, because future justices appointed by Democrats may try to change it, now that Democrats have become a social democratic party.
Moreover, the limitations on government and the structure of rights reflects the historical truth that the Constitution does emerge from a generally classical liberal framework, a framework that is a forebear of libertarianism. Crucially, neither the classical liberal nor libertarian wishes to facilitate the egalitarian redistribution that is the mark of social democracy. It was James Madison, father of the Constitution, who wrote in his advocacy for its ratification that protecting the “different and unequal faculties of acquiring property” was the first object of government, a sentiment quite libertarian in nature.
Progressives of an earlier era, like Woodrow Wilson, recognized that the original Constitution was inimical to the social engineering and egalitarian democracy. That is why they found it defective. I disagree with their normative political views, but their assessment of the original Constitution has a refreshing interpretive honesty.
And given the relative compatibility of the the Constitution’s original meaning with libertarianism, libertarians have the additional reason to follow originalism: it reflects their rule of law values as well.
Presumably Primus’s counter to these objections is his claim that the Constitution is written at such a high level of generality that social democratic appointees, like those of Hillary Clinton, can adhere to originalism and yet easily read their values into the Constitution. But this claim is false. It depends on the abstract meaning fallacy, the incorrect presumption that key constitutional provisions are written at a very high level of abstraction. For instance, as Randy Barnett has shown, it is not the case that Commerce Clause should be interpreted abstractly to authorize the regulation of any interstate “social interaction,” the necessary move for progressives to give the federal government essentially plenary powers.
Of course, it is true that anyone can claim to be an originalist. And perhaps originalism will be the new progressive constitutional anthem, although most members on Hillary Clinton’s shortlist for the Court have not yet hummed that tune.
But it has long been known that the devil can cite scripture. That is no reason for libertarians to stop pressing for justices who follow the Constitution’s accurate rather than contrived meaning. Orginalism offers a battlefield where the empirical facts of the terrain give them an advantage over most of their opponents most of the time.