The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Tuesday, October 6th, I will be giving the Baxter Liberty Initiative Lecture, sponsored by the Political Science Department of the University of California at Berkeley. The topic on which I was asked to speak is "Is the Constitution Libertarian?" Professor Fred Smith of the UC Berkeley law faculty will comment The event is open to the public. I just finished writing my lecture. Here is a portion of how it begins:
Truth be told, libertarians have a love-hate relationship with the Constitution. On the one hand libertarians, like most Americans, revere the Constitution. Libertarians particularly appreciate its express guarantees of individual liberty and its mechanisms to preserve limited government. If being American is to subscribe to a creed, then the Constitution, along with the Declaration of Independence, are the foundational statements of this creed.
But some libertarians have issues with the Constitution as well. And here I speak for myself, as well as others. There was a reason I eschewed writing about and teaching Constitutional Law when I became a law professor in favor of teaching Contracts. For, after taking Constitutional Law in law school, I considered the Constitution a noble, but largely failed experiment in limiting the powers of government. In my con law class, every time we got to one of the "good parts" of the text that protected liberty, we turned the page to read a Supreme Court opinion explaining why that clause did not really mean what it appeared to mean.
Nor was only one branch of the government to blame for this. For a very long time, the judicial passivism of the Supreme Court has combined with the activism of both Congresses and Presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be. This fundamental failure of the Constitution to limit the size and scope of government has even led some libertarians to contend that the enactment of the Constitution represented a coup d'état by big government Federalists against the more preferable state-centered regime defined by the Articles of Confederation and favored by the Antifederalists.
Yet many libertarians are genuinely torn, one might go so far as to say schizophrenic, about how the Constitution has actually worked out. Big and intrusive as government is today, it could be much worse. Few can point to other countries where individuals are freer in practice than in the U.S. Many libertarians might be willing to move to such a place if it existed; yet no such exodus has occurred. And, in important respects, life as an American feels freer than it once did. We seem to have more choices than ever before, and are freer to live the sorts of lives we wish. Libertarians still refer to the U.S. as a "free country," maybe still the freest on earth. That the Constitution deserves at least some of the credit for this freedom seems likely.
So is the Constitution libertarian or not? It turns out that this is not an easy question to answer. . . .
To answer this question, you must define what "libertarian" means and how one should interpret a written Constitution. If you are in the Bay area, you can come to the lecture to hear my answers. Teaser: Along the way, I take aim at Justice Oliver Wendell Holmes Jr.'s claim that "a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."