Gary Johnson

Gary Johnson and the Promise of Libertarian Constitutionalism

Is the Constitution a libertarian document?

|

Gage Skidmore / Flickr

Libertarian candidate Gary Johnson recently told Reason.tv that if he's elected president his nominees to the U.S. Supreme Court will be "people that look at the Constitution of original intent." Over at the liberal legal blog Balkinization, University of Michigan law professor Richard Primus took issue with Johnson's statement. Johnson's problem, Primus insisted, is his "mistaken understanding that the Founders shared his libertarian values." In Primus' view, libertarians really have no business being constitutional originalists because it is "a serious distortion of history to think of the Founders' Constitution as distinctly libertarian."

To be sure, the Constitution is not tantamount to the Libertarian Party Platform. But then of course no serious libertarian legal thinker would ever claim otherwise. The salient point here is that the Constitution—interpreted according to its original meaning—does contain some very powerful libertarian elements.

Here's an example. When the Supreme Court struck down the National Industrial Recovery Act in 1935, it did so on the grounds that this sweeping piece of New Deal legislation exceeded Congress' enumerated powers under the Commerce Clause. In response to that ruling, President Franklin Roosevelt attacked the Supreme Court for sticking to the original meaning of that moldy constitutional provision. "The country was in the horse-and-buggy age when that clause was written," the president fumed. In other words, even FDR acknowledged that constitutional originalism led to certain libertarian results. Those results are the reason why FDR rejected original meaning in favor of living constitutionalism.

The original meaning of the 14th Amendment offers another case in point. As I argued in my recent book, Overruled, "the text of the Fourteenth Amendment, the historical context that shaped it, and the statements of purpose made by those who drafted it, voted for it, and ratified it, all point in the same direction: It was designed to make state and local governments respect a broad range of fundamental rights, including both those spelled out in the Bill of Rights and those economic liberties essential to safeguarding the principles of free labor."

So yes, the Constitution does contain a number of significant libertarian elements. The trick, as always, is getting the government to abide by those elements in the first place.

NEXT: Policing in Baltimore 'Explicitly Discriminatory,' Soylent Goes Caffeinated, Shots in Ferguson After Protester Hit by Car: A.M. Links

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. No, but it is much more so than running the country while ignoring it.

  2. BREAKING NEWS: Libertarian Candidate Plans to Restore Slavery

    1. You could have been first if you hadn’t wasted your time on the AM links.

    2. You may laugh, but a surprisingly large percentage of the black population would actually believe that. Rumors that the repeal of slavery is about to “expire” regularly circulate and are treated seriously. A certain class of pandering politicians do nothing to dispel those rumors as maintaining fear and ignorance works to their advantage.

      1. Well, Venezuela certainly lends some credibility to that notion. But it doesn’t explain why they mostly vote for the people that would be implementing slavery. It also doesn’t explain why the sort of people who treat the flag of the Confederacy as tantamount to a swastika vote for, metaphorically speaking, the national socialist worker’s party which has continued to exist, only briefly diminished, since the fall of the Third Reich.

    3. Actually slavery is still already legal in the US as a punishment for crimes. Read the 13th amendment.

      1. Yes, but that’s very different from slavery as an institution that existed before, which was a lifelong condition with no limits on what your master could do to you, and which any of your children would also be born into. Convicts working involuntary servitude are still protected by the 8th amendment and don’t have their family pulled into involuntary servitude thereby.

      2. And then there’s conscription…

    4. How can something be restored when it’s alive and well? Name a candidate who won’t support the taxing one person’s income to pay for another persons’ welfare.

  3. Fine, then let’s separate the issue of libertarianism from the issue of the primacy of the Constitution as a legal document. There’s still a lot of merit in actually respecting the concept of the rule of law and therefore trying to pull the government back into line with the nation’s founding legal document and those parts which were changed by duly-passed amendments. I think that gets you pretty damn close to what a libertarian would want out of a government. And where it doesn’t, it at least gives you a position from which to work towards a libertarian government. Much closer than our current…thing.

    1. Libertarianism is a political philosophy.

      Federalism is a form of government, one which I think is the best for delivering the libertarian philosophy.

      Our constitution, if followed, creates a federal system.

      Or, what you said.

    2. Well-put Chipper. Also, we will not achieve libertopia overnight; it will be incremental.

      1. Incremental: Is that not how we lost it in the first place?

        1. ..and continue to lose it, bit by bit primarily through regulatory creep?

      2. Not sure about that.

        I think its the best hope, but not sure the ratchet goes both ways.

        It may require an abrupt change to get to something seriously libertarian.

        1. The ratchet works whichever way the majority of people want it to work. Hopefully the rise of the “sharing” economy and individual-level cooperation enabled by the information age will cause the majority of people to start preferring liberty over regulation. The ratchet will then shift directions about a generation later.

          /libertarianmoment

          1. Do you have any examples of a ratchet towards greater liberty versus wholesale change?

            Ending slavery required a war, it would have been better to ratchet slavery away than a 4 year war, but it was what it was.

            Related, before someone makes the obvious response. An econ talk guest recently made the comment that when you know nothing the civil war causes seem simple. As you learn more, it becomes complex. As you learn even more, it becomes simple again. And as you become an expert on the civil war, the causes become infinitely complex.

            This seems so true. Most civil war arguments on here seem to be between people stuck in phase 2 and phase 3.

              1. Guns started as totally free and got ratcheted away. But, yes, I think it has been ratcheted back up, good example.

                Legalizing sodomy wasnt a ratchet, it was a supreme court decision (or really, states evolving mostly, I distinguish evolution from the ratchet, but I can see the similarities). Gay marriage is a ratchet in the wrong direction, as it takes us further away from separation of marriage and state.

                Another evolution/ratchet was civil rights. Jackie Robinson did more to end segregation than anything any politician has done, including the ACA, which has been mostly a bad ratchet.

                  1. The ratchet appears to work better on social issues that it does on economic issues. I think that is because there is the natural evolution to greater freedom on social issues that doesnt exist for economic issues, for some reason.

                    1. The ratchet appears to work better on social issues that it does on economic issues.

                      It’s harder to steal from people based on their social status than it is based on their economic status.

            1. Do you have any examples of a ratchet towards greater liberty versus wholesale change?

              China.

          2. Agreed. We will see liberty when the majority of the people actually want it.

    3. pull the government back into line with the nation’s founding legal document and those parts which were changed by duly-passed amendments.

      That would be nice.

      But in order to do that they’d have to pass about 100 amendments just to keep a minimal government operating after they shut down 90% of the existing government.

      Particularly if they want to strictly hew to the enumerated powers (they’ll need to do a lot more enumerating) and fully respect the bill of rights as written. (“Shall make no law” is brutally strict. Most election laws that restrict speech and money raising would be unconstitutional. All obscenity laws go bye-bye. 2nd amendment as written guarantees keeping and bearing arms, no exceptions. So 50 cal machine guns are back in. etc.)

      Shorter version: That ain’t never gonna happen.

  4. The doctrine of enumerated powers isn’t necessarily all that libertarian. It’s about the division of power between the states, have general police power, and Congress, which originally wasn’t supposed to. The fact that an act of Congress exceeds the enumerated powers, by itself, says nothing about whether the states are free to do the same thing, although it will most likely take more effort to convince several state legislatures than to convince a single Congress.

    1. This is true. There is nothing about the constitution (especially as originally written and before teh 14th) that forces state governments to be very libertarian at all. And the states were (originally) the only ones really empowered to interfere with people’s everyday lives.

      1. Is it “libertarian” to force someone to be libertarian?

        1. Are you confusing states with individuals?

  5. Originalist reading is certainly better than not reading it at all. It may not be Libertarian, but it is certainly libertarianish, and definitely a lot more than the current system.

  6. The trick, as always, is getting the government to abide by those elements in the first place.

    *** rolls eyes ***

    Since We The People *are* the government, just do it!

  7. One area where Madison and the gang were mistaken was in the assumption that each branch of government would jealously guard its own prerogatives, thus keeping the system in some sort of equilibrium in which no one branch could get away with grabbing too much power for itself.

    Where Madison missed the boat is in failing to account for the human tendency to pass the buck.

    Thus, instead of jealously guarding the prerogatives of the branch of government in which they serve, many officials are happy to have some other branch relieve them of the responsibility of decision making. That way, they still get their salary and pension, but without the headache of conflict with other branches.

    Judges do it when they defer too generously to Congress.

    Congress and the President do it when they fob off major policymaking decisions onto the courts.

    Thus, sometimes we have the courts upholding the very kinds of laws they’re supposed to block, and sometimes we have courts just adopting their preferred policies and the other branches saying, “oh, well, we’re glad *that* issue is out of the way.”

    1. “Judges do it when they defer too generously to Congress.

      Congress and the President do it when they fob off major policymaking decisions onto the courts.”

      The giant catch basis for all buck passing has proven to be the executive branch bureaucracy, and their rule by ad hoc regulatory fiat.

    2. I believe the Founders in general also erred in assuming persistence of a certain physical limit; it was much harder to get a quorum then, Congress in session was a big event because when legislators went home it was for weeks at least because horsecart. And the President was trapped in D.C. where he’s supposed to actually be, managing the government, because the Endless Campaign was not possible from simple physics perspective.

    3. While I know this is coded whining about Roe v Wade and Obergefell v Hodges, you actually did manage to grub up a useful point, Eddie.

      …the other branches saying, “oh, well, we’re glad *that* issue is out of the way.”

      This enables legislatures (not just the congress) to pass any sort of pandering, unconsitutional, bullshit they feel like, knowing the courts will strike that down. Then those legislators whine about unelected or activist judges. Backs remain scratched.

      1. I love your Soave-like disclaimers before admitting that I’m, as usual, right.

        1. What exactly is wrong with criticizing Roe and Obergefell?

          Do you contend these decisions are correct?

          Do you contend the issues with which these decisions deal are trivial?

          1. I contend that you are a whiner, and obsessed with abortion and teh gays.

    4. They also didn’t foresee the effects that this form of government would have on political parties. Rather than professional lines being drawn around each branch of government they have been drawn around each political party. Senate democrats aren’t allied with the Senate first. They’re allied with Democrats first. Same with Republicans. SCOTUS has been a bit better at retaining its internal cohesiveness, but not by much. It’s hard for an organization like Congress to jealously protect its prerogatives when half of it is more closely allied with the President than with the rest of Congress.

      1. This part is also a key factor in what we have now, agreed.

    5. They certainly missed a lot of things, but you can’t really fault them for most. This was an experiment that had never been done before, and mostly held together for over 200 years.

      You also can’t blame them for the Senate not guarding its own power after the 17th amendment changed it from representing state governments to being a differently-allocated version of the House.

      1. This was a huge change that messed with the balance of powers. States could keep Fed overreach in check thru the Senate. The 17th destroyed the 10th.

  8. When you see Weld and Gary together, does it always seem like Bill is just constantly annoyed by Weld and thinks he is an idiot? I get that sense..

    1. I got the sense that Weld looks like Leslie Nielsen.

    2. So, Bill Weld annoys himself?

  9. err.. Bill is just constantly annoyed by Gary..

    1. Yep. Gary doesn’t want the job. He knows he’s an idiot and can’t handle the pressure, or he can’t handle the pressure so pretends to be an idiot. Either way, Hillar(it)y ensues.

      1. You say “he does t want a he job” like that’s a bad thing.

        I can’t think of a better reason to vote for him.

        1. Thanks for not droning me today, Franky. 🙂

  10. The bigger problem with Johnson’s statement is that when progtards hear “original intent” they immediately assume that means “OH MUH GERD! HE WANTS TO BRING BACK THE 3/5’s RULE AND ‘PUT Y’ALL (BLACKS) BACK IN CHAINZ!!!1111!!!!!!’ DERPTY DERPITTY DER!11!!1!!!!!!”

    Which wouldn’t be that big of a problem if it weren’t for the fact that those idiots will post that shit on Derpbook and then other slightly less retarded idiots will see it and think it’s true.

    1. And, as always, completely missing the fact that the 3/5ths rule was a compromise to limit the power of slave states.

    2. OHMYGOD U THINK PUTTING BLAX IN CHAINZ WOULDN’T BE A BIG PROBLEM WTF I CAN’T EVEN!!!

  11. The Constitution may not be a perfect libertarian document. But, by spelling out the rules by which government is allowed (or not allowed) to do things, it sets a defined limit on what the government can do. By making the document open to inevitably arbitrary re-interpretation (the “living document”), you erode the degree to which those rules bind government from whatever behavior it may favor.

    1. By making the document open to inevitably arbitrary re-interpretation (the “living document”)

      The problem with that is that there isn’t any way to make such a document NOT open to reinterpretation. You can make it much harder by spelling out in painful, endless detail exactly what freedom entails, but if enough people disagree with those limitations on a huge government, the people they elect will find some creative endrun.

      1. The problem with that is that there isn’t any way to make such a document NOT open to reinterpretation.

        Largely true. But, that’s certainly not an argument for appointing judges openly committed to arbitrary re-interpretation.

    2. One of the big takeaways from the U.S. Constitution is that it’s not enough to mandate how people behave and think. You can’t mandate ethics. You can’t rely on people being ‘good’. This is what way too many people do in fact. They figure if they just elect the “right” people, everything will be wonderful. What matters is the structure of government and how the power is distributed. How each power center plays off against other power centers and this is dynamic and always changing. You want some kind of self-enforcing mechanism. The US Constitution has done a pretty good job. It’s not perfect, but nothing lasts forever.

  12. The Constitution was a coup d’etat, replacing the decidely libertarian Articles of Confederation with something considerably less libertarian. The Bill of Rights is much more libertarian than the body of the Constitution.

    And, as we’ve seen, the whole mess wound up getting interpreted to death when it turned out that formally amending it wasn’t doable.

    The tyranny got baked in once Lincoln decided to turn it into a binding union held together by coercion, rather than a voluntary association of states that could withdraw consent and leave at any time.

    1. And, as we’ve seen, the whole mess wound up getting interpreted to death when it turned out that formally amending it wasn’t doable.

      27 times. 17 after the BoR went in.

      It is, in fact, doable.

      They tend to come in clumps when really needed.

      1. “needed” should be in scare quotes, especially when talking about the progressive era fuckups.

      2. It is, in fact, doable.

        Ah, but it’s hard. And so uncertain. Silly people who don’t know what’s best for them might not vote the right way. It’s much better to just bend the rules to get the right result.

      3. Amending the Constitution is “TOO HARD” (in whining voice). Let’s just get the SCOTUS to rule our way. It’s much easier.

        1. Well, there’s also how cases wind up before the SCOTUS vs. how amendments are made.

          SCOTUS cases are reactive and don’t need public support. Lawrence v. Texas and Loving v. Virginia were both started because someone was arrested and thought the law criminalizing their behavior was unjust. When Loving v. Virginia was decided, public support was against interracial marriages, and it would be decades before that needle moved. Lawrence v. Texas came down at a time where the majority of Americans were still saying that being gay was wrong and bad.

          Amendments are proactive, and require broad congressional support. In order to offer up an amendment for ratification, 2/3rds of Congress has to support it. So right out of the gate, if it’s something that can be done with a law (either making a new one or striking something down), that’ll probably be done first unless it’s important to make it an amendment as part of a message. So generally speaking, if something is on the way to becoming an amendment it’s pretty fucking popular. A few states might be hold-outs, but they’ll be in the minority.

          So broadly speaking… if you wind up in court and you’re dealing with a law you think is unjust, you’re not going to try to pass an amendment, you’re just going to fight. If you see something you really want changed, and have popular support, you might seek out the amendment.

          Nothing to do with “whiners”, just with how the system is structured.

          1. I think he was referring to the current method of deciding cases, which all too often is to ignore the words on the page and vote for their preferred policy outcome. Then they back-fill the logic and jurisprudence to get there.

            Of course, your description of how SCOTUS works would be the right way for things to happen – a court that protects the citizenry from the abuse of their government, even when that abuse is wildly popular. Sadly, all too often it doesn’t appear to be working that way.

  13. Ella . you think Victoria `s storry is astonishing… on saturday I bought themselves a Car after bringing in $7899 this – 5 weeks past and-more than, 10-k last munth . it’s by-far the best-job I have ever had . I began this 8-months ago and almost straight away started to earn minimum $77
    ?????????? http://www.factoryofincome.com

  14. It is a federalist document … allowing states more power than I would like, but at least we’d have 50 crappy state choices rather than 1 crappy federal “choice.”

  15. Zeroth Amendment: “You shall have no Constitutions before me.”

    1. -Abraham Lincoln, 1861

  16. I’d say the Constitution has some non-libertarian provisions

    The examples which occur to me off the top of my head ar:

    The post-offices clause
    probably the Commerce Clause (unless you give it a *really* limited construction)
    Certain aspects of the 10th amendment, in that it leaves
    The 16th (income tax) amendment

    I’m sure there are others.

    Compare that with the constitution in proggies’ heads, which is opposed to just about everything which libertarians and conservatives value.

    In practice, this is the choice we have to deal with, so any defects in the constitution are preferable to what they’re trying to replace it with.

    1. oops

      “certain aspects of the 10th Amendment, in that it leaves too much power to the state”

      1. Also, the 21st Amendment, which, alas, seems to allow protectionist state legislation when it comes to booze.

    2. Commerce clause is fine on its own, it’s the combination with the Necessary and Proper clause that leads to the ridiculousness that we have today.

      1. Commerce clause would be fine if it was used as intended, to prevent trade wars between states. You know, to tell California that they can’t have fruit checkpoints on their border. That would be a proper use of the commerce clause.

        1. I could also be used to allow people to buy health insurance across state lines.

  17. A true libertarian would harken back to Lochner. This ‘originalism’ nonsense is too politically popular.

    1. There is, I think, an originalist case to be made for Lochner – viz, that the right to make and enforce contracts, and the right to the fruits of one’s own labor, are among the privileges and immunities of citizenship as guaranteed in the Fourteenth Amendment.

      1. And the ninth.

        People dont make enough 9th amendment arguments.

      2. Exactly. Originalism doesn’t mean you ignore the amendments.

        1. Of course, there’s no *evidence* that the framers of the 14th Amendment wanted to protect people’s right to earn a living and make contracts free from hostile state regulation!

          /sarc

  18. FTLA:

    Some of the ways in which libertarians manage this feat are particularly impressive. Here are two: (1) George Mason, who at the Constitutional Convention argued that the federal government should be given the power to enact sumptuary laws (i.e., laws regulating private consumption in order to repress luxury, extravagance, etc.), is somehow remembered today in certain quarters as a particularly strong libertarian.

    And Thomas Jefferson owned slaves, so he couldn’t have had a libertarian thought in his head. Right?

    1. Originalism isn’t fully in accord with the freedom philosophy, but at least it would stop the feds from doing the kind of wicked things which Professor Retard and his ilk want done.

      1. And here, I think, we see the true nature of Professor Retard’s objection to originalism.

        If originalism was flexible enough to empower Congress to establish (say) socialized medicine, then academics wouldn’t be protesting so hard against originalism.

        1. I call him Professor Retard because he basically takes a baseball bat to a straw man, and then stands amid the debris with a triumphant expression on his face, exulting that he’s *totally refuted* those horrible libertarians.

  19. Personally, I like to start with first principles of moral philosophy, and then point out places where the Constitution conforms to those principles.

    I think of the constitution as a very good, if imperfect, attempt to arrive at a universally just governing philosophy, based on the first principles of “all men are created equal” and “life, liberty, and the pursuit of happiness”. Those are really damn good fundamental premises to start with. The constitution as a whole doesn’t entirely live up to them but the fact that they’re written down shows what the framers were trying to achieve. They’re the guiding light of the whole effort.

    In most cases, where the constitution fails is where the framers failed to anticipate how future governments would try to expand in any direction not explicitly curtailed. Just because the constitution doesn’t explicitly prohibit the government from doing a thing, doesn’t mean that having the government do it doesn’t violate the fundamental premises that it is based on.

    1. In most cases, where the constitution fails is where the framers failed to anticipate how future governments would try to expand in any direction not explicitly curtailed. Just because the constitution doesn’t explicitly prohibit the government from doing a thing, doesn’t mean that having the government do it doesn’t violate the fundamental premises that it is based on.

      At least SOME of the framers anticipated this:

      Our country is too large to have all its affairs directed by a single government. Public servants at such a distance, & from under the eye of their constituents, must, from the circumstance of distance, be unable to administer & overlook all the details necessary for the good government of the citizens, and the same circumstance, by rendering detection impossible to their constituents, will invite the public agents to corruption, plunder & waste.

      And I do verily believe, that if the principle were to prevail, of a common law being in force in the U S, (which principle possesses the general government at once of all the powers of the state governments, and reduces us to a single consolidated government,) it would become the most corrupt government on the earth.
      ~Thomas Jefferson

  20. Johnson has severely damaged his Constitutionalist bona fides by declaring his allegiance to anti-freedom-of-association and anti-free-trade laws in the name of combatting “discrimination”.

  21. Its intent was to limit government in the name of liberty. That’s pretty fucking libertarian.

    That said, we can strive to do better the next time around.

    1. It gave more power to the federal government than had existed under the Articles, and didn’t roll back state government authority other than to give it to the feds. The only aspect of the constitution that limited govt power compared to what came before was the dormant commerce clause removing most barriers to interstate trade, which is questionable as to whether it’s really in the Constitution or another SCOTUS fabrication.

  22. Primus sucks.

  23. It might make an interesting alternative history novel : north of Mason/Dixon line forms one country in 1787 and south of Mason/Dixon forms another over failure to compromise on the slave issue. Would “America” have prospered better as two countries from day one?

    1. You mean, would Great Britan have prospered better with a larger American empire?

  24. Damon Root and the libertarian conservative establishment have shown again and again they have no understanding of the income tax and the 16 amendment. Sadly the libertarian think tanks have abandoned their responsibilities entirely re income taxation. They cannot in good conscience simply continue to adhere to the simplistic mainstream history of the amendment. They have done no work of merit on the rights of AmEricans in tax collection. Anarchists like Richmond trivialize the taxing clauses instead of studying them. Politicians argue about flat or fair substitutions because they do not understand the liberating truth of this benign tax that if properly understood could help solve the entitlement problem and reduce not expand the state . Sadly Root is so badly out of touch he probably does not understand this post.

  25. I’ve got a couple of issues with “original intent”. The big one is that I’ve never seen any “original intent” jurist who sticks to that rhetoric when they don’t like the outcome. Like most judges, they only care about “original intent” when it suits their purposes. The moment it takes them in a direction they don’t like, they throw it out the window. It’s the same old stuff, but with different window dressing.

  26. 28th amendment

    “No person may initiate the use of force, threats of force or fraud against any other person’s self or property.”

    That would make it a libertarian constitution.

  27. In an August 3rd interview on REVOLT TV, Gary Johnson’s running mate, Bill Weld, said, “The five shot rifle, that is a standard military rifle, the problem is if you attach a clip to it that holds more shells and if you remove the pin so that it becomes an automatic weapon, and those are independent criminal offences. That is when they become, essentially, a weapon of mass destruction. The problem with handguns probably is even worse than the problem of the AR15.”

    Not only is this contrary to the second amendment, much is just incorrect; e.g. “remove the pin so that it becomes an automatic weapon” – WTF???

    The Johnson/Weld LP ticket is the “GOP-Lite” alternative to Trump/Pence, not the libertarian alternative. They won’t be getting my vote.

    1. Weld misunderstood when he was told that the LP was “the best of both Democrats and Republicans.”

      He would make an excellent VP pick for Hillary if Gary didn’t get him first.

  28. Voting for Johnson feels an awful lot like it did when I voted for Romney. Not too excited but hey… at least I didn’t vote for THOSE people.

    And no… by “THOSE people” I don’t mean blacks or women… I mean socialist shitbags.

    Not that I was worried about anyone here missing that point but, you know… better safe than sorry when dealing with maximum derpitude.

  29. My lefty co-workers always bitch about my hard and fast principled stances and always ask why I won’t compromise. Maybe next time I’ll say “Ok… let’s compromise. I’ll give up libertarian utopia if you follow the Constitution as intended per the actual fucking primary writings of the philosophers that wrote the damn thing rather than some self professed socialist who rejects, flatly, any concept of Rule of Law, Limited Government, or Individual Rights including the 3 basics (Life, Liberty, Property). Deal?”

    1. So, just to be clear, you don’t want to compromise?

  30. Do I want to compromise the amount of freedom I give up? No. Would I compromise the reduction of the state, assuming it happens to any degree? Sure. I want to get rid of several whole agencies or departments. I’ll take just getting rid of Fed Ed for now. See! Compromise.

Please to post comments

Comments are closed.