The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Libertarian Party presidential candidate Gary Johnson and vice presidential nominee Bill Weld recently caused some controversy with their remarks on potential Supreme Court nominations. Weld was taken to task by many libertarians for suggesting he might want to appoint justices like Democrats Stephen Breyer and Merrick Garland. But legal scholar Richard Primus claims that libertarians should also dislike Johnson's comment that he would seek to appoint"people that look at the Constitution of original intent":
To my knowledge, the world of libertarian commentators had no negative reaction to this comment by Johnson. Nor would one expect it to.
But if the reason why the idea of an originalist Supreme Court sets off no alarm bells among libertarians is that libertarians think the Founders understood the Constitution as a charter of libertarian ideals in the way that twenty-first century libertarians understand those ideals, then those twenty-first century libertarians are laboring under a distorted understanding of the eighteenth century. Yes, the Founders believed in limited government and individual liberty, and crucially so, and at a high level of abstraction those are ideals shared by modern libertarians. But they're also ideals shared, at that level of abstraction, by most non-libertarians in American politics today. And there's no reason to think that the Founders as a group understood those ideas in the particular ways that distinguish modern libertarians from most other Americans.
[Primus] 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….
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.
In this article from last year, I explained in greater detail why there is considerable congruence between libertarianism and originalism. Enforcement of the original meaning certainly would not give us a completely libertarian polity. But it would still impose tighter limits on federal power and stronger protection for a variety of individual rights—including property rights and economic liberties—than is likely under the realistically feasible alternatives, such as "living constitutionalism" or wide-ranging judicial deference to the political process.
Primus also claims that the original Constitution may be inimical to libertarianism because its purpose "was to create a more powerful government, not a less powerful one." But the government created by the original 1787 Constitution could simultaneously be more powerful than the very weak one that existed under the Articles of Confederation, and much less powerful than what we have today. Moreover, most of the important amendments since 1787—the Bill of Rights and the Reconstruction amendments—limit government power in a variety of significant ways, most of which are highly congruent with libertarianism.
Finally, Primus takes libertarians to task for holding up George Mason as a forbear of their position, despite the fact that he favored giving Congress the power to enact sumptuary laws. It is indeed true that Mason held a foolish position on that issue. But, from a libertarian point of view, that is easily outweighed by his efforts to limit federal power and strengthen protection for individual liberty on a wide variety of other fronts, most notably in promoting the idea of a Bill of Rights, which was in large part based on the Virginia Declaration of Rights, which he played a key role in drafting.
George Mason fell short of libertarian ideals, particularly in continuing to own slaves despite the fact that he knew it was unjust. But he did take a generally libertarian approach to a wide range of constitutional issues. Libertarian admiration for George Mason is no less defensible than the ubiquitous left-liberal admiration for the constitutional vision of Franklin D. Roosevelt and his New Deal, despite the fact that he had a terrible record on civil liberties, and ordered the interment of Japanese-Americans in concentration camps. These sins are, in liberal eyes, outweighed by his achievements on other fronts. Much the same thing can be said for the libertarian view of Mason, and many of the other founders.