The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Liberty Law website has recently published my essay on "How Constitutional Originalism Promotes Liberty." Here is an excerpt:
What approach to constitutional interpretation best protects liberty? My task in this essay is to answer that modest question. Ultimately, there is no definitive answer that applies to all times and all places. But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet. Both the structural and individual rights provisions of the Constitution generally protect liberty more when interpreted from an originalist standpoint than by applying any of originalism's plausible competitors….
Even many libertarians-myself included-recognize that negative liberty doesn't always trump all other values. Proving that a particular theory of constitutional interpretation best promotes liberty does not prove that it is the best overall. A complete theory of constitutional interpretation must also consider other goals such as the provision of public goods and increasing human welfare….
Still, negative liberty is an important value-including for many non-libertarians. And the ability to maximize it effectively is an important virtue, even if it is not the only criterion by which theories of constitutional interpretation should be assessed.
Over the next week or two, Liberty Law will post responses by political theorists Hadley Arkes and Peter Lawler, and by prominent legal commentator Ed Whelan, of the Ethics and Public Policy Institute. I will then have the opportunity to write a rejoinder.