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Why Libertarians Should be Originalists

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.

Reader Discussion

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on August 09, 2016 at 12:55:33 pm

Quite true, but I don't think this is just by accident. The libertarianism of today, although the term is relatively new, is derived from the same ideals of 17th and 18th century classical liberals. The problem of course is that the term "liberal" has been co-opted by people who do not believe in that classical liberal ideology and yet still call them selves by the term that the classical liberals used. So, given a larger number of people today use the term "liberal" to mean something else, a new term was needed to show that you align with that classical liberal ideology and not the modern progressively liberal ideology. That's why many people call themselves libertarians. But the ideas are still grounded in the enlightenment that lead to our constitution. So I would disagree with both you and Richard Primus, and claim that the constitution does actually "entrench libertarian principles." Although they were clearly not called "libertarian principles" at the time, they were called "liberal principles" as in classically liberal principles, but the same idea just a different name. Ideas like the rule of law (not the rule of man), separation of powers, a limited government, all ideas at complete anathma to modern progressive ideals who would love administrative agencies to have all the powers of government and run our lives by some elite so called experts. Even the rule of law is undermined in the modern progressive idea that the legislature is all powerful and can do whatever it wants, even take the liberty or property away from someone just because the legislature says so (the founders believed that no man or group of men such as a legislature rightly has the power to take a person's life, liberty or property).

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Devin Watkins
on August 29, 2016 at 02:56:54 am

What Devin said. I call myself a libertarian rather than classical liberal, but view them as identical. Austrian economists have largely claimed libertarianism, but they simply dug it up and twisted it somewhat. The "NAP" is a poor man's Natural Rights Theory, so libertarianism as often shouted is rougher edged. But I think it is a fad. I think as time goes on, the NAP libertarianism will fade away. The Constitution is based in Natural Rights and that's a great reason to take it as written.

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John Ashman

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