The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At the National Review website, conservative commentator Carl Eric Scott has some interesting thoughts on "The Mainstreaming of Libertarian Constitutionalism," a recent article I coauthored with David Bernstein. Scott is extremely generous in his praise of the article, for which I am very grateful. But he also offers some criticisms, particularly the following:
Over and over, the paper stresses libertarian influence upon, commonalities with, and hopes for eventual agreement on certain issues with, the liberal jurist mainstream. By contrast it says little or nothing of libertarian influence upon, commonalities with, or potential agreement points with originalists, and with conservatives generally. Is that simply a matter of rhetorical presentation for one paper? Of smart academic politics? Or, is that a sign of a deeper desire to explore and establish liberal-tarian common ground? Of a desire that goes deeper than the libertarians' greater case-by-case tendency to wind up on the same side as the originalists?
This argument misinterprets the paper. It is true we focus extensively on commonalities between libertarian and mainstream liberal approaches to constitutional law in the first half of the paper. But Parts V and VI, which focus on federalism and property rights, emphasize that these are crucial areas where libertarian ideas have entered the mainstream primarily by being taken up by conservative (and often originalist) judges. I have addressed these areas of convergence between libertarian and conservative legal thought more fully in other work, including articles coauthored with conservative originalist legal scholar John McGinnis, and my forthcoming book on the Kelo case and public use. In the Conclusion of the book, and in this earlier article, I stress the (in my view lamentable) reality that the issue of judicial protection for property rights tends to divide federal judges along right-left lines.
This particular article, however, focuses primarily on analyzing the influence of libertarian legal thought on the constitutional mainstream, which we defined as the dominant views in legal academia and the federal courts. Because academics are overwhelmingly liberal, it is the left that tends to define the mainstream in the former arena. In the latter, conservatives have a much stronger presence, and our paper focuses on several areas where libertarian ideas have had an influence in the judiciary primarily through the agency of conservative judges. But at the very heart of the judicial mainstream of the last twenty to thirty years have such moderate-conservative "swing vote" justices as Sandra Day O'Connor and Anthony Kennedy, which is why much of our discussion focuses on areas where they seem to have at least partially adopted ideas associated with libertarians. We also wanted to particularly emphasize similarities with left-wing constitutional thought in some parts of the paper because overlaps between recent libertarian and conservative legal thought are already well-known, and much-commented upon in previous academic work.
All of this analysis is primarily empirical rather than normative. We have many disagreements with both the dominant currents of opinion in legal academia, and (to a lesser degree) moderate Supreme Court justices such as O'Connor and Kennedy. In my view, "mainstream" is not a synonym for "admirable" or "correct," though I recognize that others often use the term that way. Unlike some of our other work, this article does not attempt to defend libertarian legal thought, but merely describe its influence.
I also disagree with two broader points raised by Scott that go far beyond the scope of our article. First, he seems to treat libertarian and originalist approaches to constitutionalism as two distinct and mutually exclusive schools of thought. In reality, most (though certainly not all) prominent libertarian constitutional theorists are themselves originalists. They differ from conservative and liberal originalists primarily in being more skeptical of judicial deference to the legislative and executive branches of government. Indeed, the work of libertarian originalist scholars is one of the factors that has led other originalists to confront the tension that often arises between enforcing the original meaning and deferring to the political process – a tension that was often overlooked in earlier conservative originalist thought, such as the work of Judge Robert Bork.
Second, Scott assigns "substantive" due process a much more central role in libertarian constitutional thought than is actually the case. While many libertarians are indeed sympathetic to the revival of Due Process Clause protections for economic liberties, this is just one of many parts of the Constitution that libertarians argue has been underenforced by the courts, at least until very recently. Other examples include the Contracts Clause, the Privileges or Immunities Clause of the Fourteenth Amendment, and the Public Use Clause of the Fifth Amendment (the focus of much of my own work). Libertarians argue that each of these provisions should get the same treatment as other constitutional rights that the courts have been willing to take more seriously. That does not mean that the rights they protect are unlimited or that the proper exercise of judicial review would limit government to the powers enjoyed by a Lockean minimal state. Just as serious judicial enforcement of the First Amendment does not lead to absolute rights of speech and religion, so serious enforcement of the Contracts Clause and the Public Use Clause would not lead to completely unfettered rights to property and contract. It does mean that a wide range of important constitutional rights would gradually emerge from the near-oblivion to which they had, for a long time, been consigned.
Scott's National Review post was followed by one by political theorist Peter Lawler. As Lawler notes, many of the issues he raises were previously discussed in a more detailed post he wrote in December. I responded to that post here.
Libertarians, liberals, and conservatives will probably continue to disagree on a number of major constitutional issues. No sweeping libertarian constitutional revolution is likely to occur anytime soon. But, as our article suggests, libertarian legal thought has made important incremental progress in recent years. At the very least, both liberals and conservatives have had to take libertarian views on constitutional law more seriously than was usually the case in the past.