Amongst proponents of limited government—be they conservatives or libertarians—originalism is the theory of constitutional interpretation to beat. Thus, when Libertarian Presidential candidate Gary Johnson recently declared that he would want to appoint Supreme Court Justices “that look at the Constitution of original intent,” he surprised no one. (With the exception of those sufficiently familiar with originalist literature to recognize that “original intent” is no longer the preferred nomenclature—“original public meaning” is, although several distinguished originalist scholars identify as intentionalists.)
Over at Balkinization, Professor Richard Primus argues that libertarians should resist the gravitational force of originalism. Primus’s primary contention is that the Constitution is not “distinctly libertarian” and that the good-faith practice of originalism will thus disappoint libertarians. Primus also argues that “originalism in practice delivers enormous indeterminacy” and that progressive originalists can be counted upon to “imagine the Founders in the light of their own political values.” Thus, he claims that promoting originalism will enable progressives to marshal “some of the most potent rhetoric in constitutional law, namely the claim that their values are the values of the Founders rather than just their own.”
Primus is wrong. There are compelling reasons for libertarians to embrace originalism, and neither concerns about the Constitution’s purportedly indistinctly libertarian character nor concerns about originalism’s alleged indeterminacy should discourage them from doing so.
The first and foremost reason for libertarians or anyone else to adopt any particular mode of constitutional interpretation is to figure out what the Constitution actually means. Like any other legal document, the Constitution has communicative content—it was written to convey information to others. The Constitution is also, however, chock-full of now-obscure terms and phrases connected with 18th-century law and governmental practice. It reflects the influence of background facts and concerns that may well be unknown to be modern readers. It rests upon philosophical commitments that many do not share. Readers who are unfamiliar with any of the above can very, very easily go very, very wrong.
We are thus in need of an objective approach to constitutional interpretation—one that is calculated to give us the best possible shot of arriving at accurate knowledge of what Constitution means and to separate true claims about meaning from false claims. Only after adopting and applying such an approach can we decide what, if anything, we should do with the Constitution—whether we should celebrate it or damn it, support it or repudiate it.
Originalism’s appeal derives in substantial part from its promise of objectivity. It is best understood as a family of interpretive theories that are unified by two core premises, which Professor Lawrence Solum has termed the “Fixation Thesis” and the “Constraint Principle.” The Fixation Thesis holds that the meaning of any particular provision of the Constitution was fixed when that provision was framed and ratified, and that that meaning is distinguishable from the subjective understanding held by any particular person or group of people. The Constraint Principle holds that the Constitution’s fixed meaning should constrain constitutional practice (in particular, constitutional adjudication). Ascertaining the meaning of the Constitution’s words entails studying historical facts concerning patterns of word usage and seeking to identify the kinds of things that those words refer to. Originalism, at its best, is committed to empirical inquiry—committed to going wherever the evidence leads.
If the Constitution was a thoroughly evil plan for government that articulated principles hostile to individual rights or simply an ineffectual plan that was incapable of securing individual rights, libertarians would rightly regard the judicial enforcement of an accurate understanding of the Constitution as thoroughly undesirable. But constitutional evil is a reason to reject the Constitution, not to reject originalism. The Constitution means what it says, regardless of whether it is a “glorious liberty document” or a “covenant with hell,” and we need an objective means of interpreting it in order to figure out what it says.
Fortunately, libertarians need not reject the Constitution. The Constitution is distinctly—indeed, remarkably—libertarian in its letter (its text) and its spirit (its animating principles, and the purposes of its particular provisions). The spirit of the 1787 Constitution was the spirit of 1776— the Constitution is designed to implement the political-philosophical premises set forth in the Declaration of the Independence, well-described by George H. Smith as the “radical edge of [classical] liberalism.” While the Framers disagreed amongst themselves concerning many topics, they did not disagree that the fundamental purpose of any legitimate government is the protection of individual rights—to defend oneself, to pursue a vocation, to acquire, use, and enjoy property, to engage in expressive activities, to generally act in accordance with one’s own judgment in pursuit of one’s own happiness, so long as one does not violate the equal rights of others. The letter of the Constitution establishes a national government that is inherently limited in the scope of its power and can take no action at all except pursuant to an affirmative grant of power from “We the People.” The Constitution divides the primary power of “We the People” (who, like the “one people” of the Declaration, are individual rights-bearers) between the federal government and the states and vests different kinds of federal power in specialized governmental bodies, thus avoiding the consolidation of power in any particular body and preventing any particular body from attacking individual rights unopposed. It throws up numerous structural impediments to government action—impediments that are calculated to promote deliberation and reflection and to allow various actors to oppose measures believed to be unconstitutional or merely unwise. Article III provides for an independent system of federal courts, insulated from the political branches and from the tides of public opinion, staffed by judges who are duty-bound to say what the law is, rather than what executive or legislative branch officials believe it ought to be. The Constitution is jam-packed with paragraphs full of rules that are not much fun to read but which are important components in a system that works to ensure that government power is deployed to (in the words of the Preamble) “secure the blessings of liberty”—not to endanger them. The addition of the Bill of Rights in 1789 affirms the Constitution’s distinctly libertarian character by specifically marking a list of individual rights off for protection—both natural rights to freedom of action that precede government and procedural rights calculated to safeguard natural rights. The Ninth Amendment makes plain that the list is not to be construed to deny the existence of other natural rights that could never be comprehensively enumerated and are retained by individuals.
Even those components of the Constitution which authorize more government power than libertarians might consider ideal turn out, upon examination, not to be as bad as they initially appear. The so-called “General Welfare Clause” is not a free-standing grant of power to Congress to spend money on whatever is deemed conducive to the general welfare but a limitation on Congress’s taxing power—it forbids Congress from raising revenue for special interests. The Necessary and Proper Clause presents Congress as the public’s agent and forbids Congress from wielding its (delegated) powers arbitrarily—it must pursue constitutionally authorized ends through means calculated to achieve those ends. Even the much-maligned (by libertarians) Commerce Clause is designed to enable Congress to prevent states from setting up trade barriers, not to enable unaccountable executive agencies (relying upon nebulous congressional power grants) to regulate most human activity. It is the departure from the objective meaning of these provisions—and the Supreme Court’s abdication of its duty to enforce that meaning—that is responsible for the development of a federal administrative state that routinely exercises legislative, executive, and judicial powers that are anything but (as James Madison described the federal government’s powers) “few and defined.”
There is no getting around the fact that the Constitution tolerated the existence of an institution that systematically deprived people of the very rights that the Declaration affirmed and the Constitution was designed to protect. The Constitution’s failure to expressly prohibit states from arbitrarily depriving people of their rights left not only the rights of slaves but those of free blacks and white abolitionists at the mercy of local tyranny. It is also true, however, that the Constitution has always contained (as Frederick Douglass put it) “principles and purposes, entirely hostile to the existence of slavery.” The Reconstruction Amendments were formulated by Republicans who believed that the Constitution was designed to implement the Declaration’s principles and purposes but who had come to appreciate that it failed to do so. The precise terms of Section 1 of the Fourteenth Amendment illuminate the Declaration’s influence. As “all men” are “created equal,” according to the Declaration, and possess “unalienable rights,” so too “all persons born or naturalized in the United States” are citizens, according to Section 1, and possess all the “privileges” and “immunities” of citizenship—encompassing natural rights as well as the procedural guarantees set forth in the Bill of Rights. As the Declaration recognizes “life, liberty, and the pursuit of happiness” among other “unalienable rights” so, too, the Due Process of Law Clause recognizes preexisting rights to “life, liberty, [and] property” of which no “person” can be arbitrarily “deprived” by government actions that serve only to impose the preferences of politically powerful factions, rather than further any constitutionally proper end.
And yet, given that I have already conceded that the Constitution authorizes more government power than is ideal, the question arises: Even if I am correct about all of the above, why should libertarians want judges to be originalists in cases where taking a different approach might produce a result more favorable to liberty? Why settle for less?
The answer lies in the nature of judicial duty. Judges draw their power from Article III of the Constitution and (like all government officials) take an oath to “support this Constitution” (emphasis added). Their power over their fellow citizens is awesome—judges can impose ruinous fines, send people to prison for decades, and sentence people to death. They can ratify or invalidate governmental decisions to bulldoze entire neighborhoods for “economic development,” destroy livelihoods, and deny terminally-ill patients access to potentially life-saving medicines. With judicial power comes the duty to act in accordance with the law of the land. The oath judges take can be understood as forming a contract: Judges receive the power to reach binding judgments and make authoritative statements of what the law is in exchange for foregoing the opportunity to act on the basis of will—their beliefs or desires about what the law should be, or the beliefs and desires of other government officials—rather than the principles of reason in our law. Judges cannot seek to recapture that foregone opportunity—they may not draw power from the Constitution while refusing to be bound by its terms.
It is also highly doubtful that judges who depart from the law in the name of libertarian first principles would better serve the cause of liberty than faithful originalists. Hitting upon the correct political philosophy is insufficient to ensure its implementation. The Framers’ frankly staggering genius discloses itself primarily in the system that they developed to implement their political philosophy—a system that was adopted only after vigorous discussion and debate across the nation that is striking for its substance, its illumination of the stakes, and its erudition. Presuming to improve upon that system through judicial fiat is not only incompatible with judicial duty but highly unlikely in practice to produce actual improvements. Further, since libertarianism is decidedly not the dominant political philosophy on the federal bench, in the legal academy, or within the political branches of government, any advocacy of judicial departure from the Constitution in the name of political philosophy could legitimize judicial, executive, and legislative behavior that is profoundly hostile to libertarian ends.
Towards the end of his piece, Primus suggests that originalism may equip progressives to impose their values while claiming the Founders’ authority—whether intentionally or simply because “[w]e all see the Founders differently, because we all see ourselves in them.” While no interpretive methodology can prevent willful judges who are determined to impose their own values on the law from drawing upon whatever resources they deem effectual to that end, originalism not only equips judges to accurately ascertain the Constitution’s meaning and give effect to the values the Constitution actually embodies but also equips the rest of us to expose and criticize judges who draw upon originalist materials in bad faith. While good-faith error is inevitable, it can be identified by (among other things) pointing out the insufficiency of evidence advanced in support of a claim about meaning, critiquing flawed inferences from evidence, and adducing contrary evidence. Primus’ claim that “the promise of objectivity is largely illusory” is belied by his own strident assertion that the Constitution is not distinctly libertarian, which he presumably regards as something other than his mere subjective belief. (Objectivity for me, but not for thee?) He also fails to take account of the fact that fundamental changes in the trajectory of originalist scholarship have come about as a consequence of evidence-based arguments. Originalists can and do change their minds. (An example: H. Jefferson Powell’s landmark essay, “The Original Understanding of Original Intent,” which demonstrated to the satisfaction of many scholars that relying upon the original intentions of the Framers to interpret the Constitution would actually violate the Framers’ intentions and thus helped to drive the move from original intent to original public meaning.)
Ultimately, the libertarian case for originalism is an “if-then” argument. If libertarians want judges to accurately interpret the Constitution, then libertarians should want judges who hold to originalism’s core premises and engage in empirical inquiry into the Constitution’s fixed communicative content. I submit that libertarians ought to want judges to accurately interpret the Constitution, both because judges’ very authority depends upon it and because ad hoc judicial improvisations in the name of libertarianism are unlikely to improve upon our written law in any respect. Our Constitution is a glorious liberty document, worth celebrating and supporting. Libertarians have little to fear, and much to gain, from judges with a demonstrated commitment to going where the evidence leads.