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08/11/2016

Ilya Somin on Richard Primus on Gary Johnson and Originalism
Michael Ramsey

In response to Richard Primus' claim that libertarians should not be originalists, Ilya  Somin at Volokh Conspiracy: Gary Johnson, libertarianism, and originalism,  Professor Somin writes:

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 many 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.

Agreed.

Plus my further thoughts: Professor Primus also argues that originalism is too indeterminate to serve rule-of-law values, and so should not be preferred for that reason.  I disagree on three grounds.  First, it's a comparative question.  It's not whether originalism is determinate in itself.  The question, as Justice Scalia put it well in his concurrence in McDonald v. City of Chicago, is whether originalism is more determinate than the alternatives.  As the principal alternative is living constitutionalism, the answer is clearly yes.  Living constitutionalism depends fundamentally on the moral and political values of the decisionmaker.  These are necessarily subjective.  Originalism depends on a textual and historical inquiry.  This inquiry may be difficult, and it may inevitably be somewhat influenced by the moral and political values of the decisionmaker (because it is hard to overcome one's biases).  But at its core it is an inquiry that is not inherently subjective.

Second, as my colleague and co-blogger Mike Rappaport has observed, one reason originalism appears somewhat indeterminate is that originalist scholarship has only recently become widely practiced.  Many constitutional provisions -- even very important ones -- have simply not been fully explored from an originalist perspective.

Third, in my view originalism's indeterminacy is greatly overstated.  People tend to focus on the apparently general phrases of the rights provisions: freedom of speech, equal protection, etc.  These may or may not be difficult, but they are not all of the Constitution.  Here are two counterexamples from my scholarship:

(1)  "Declare war."  In my view, it is clear that this power of Congress (a) was exclusive and (b) covered any initiation of conflict with a foreign power, whether by formal declaration or armed attack.  Although there are some minority views, most scholars who have studied the issue appear to agree.  While there is a good bit of uncertainty about the war powers of the president and Congress, it is mostly at the margins.  The core proposition -- that presidents cannot start wars -- seems clearly established by text, original understanding, and post-ratification practice.

In contrast, under a living Constitution approach, it's a hard question.  International power structures, geopolitics and military technology are quite different today than they were at the founding.  As Eric Posner and Adrian Vermeule would say, the speed and complexity of international events have increased to an extent the framers could not have imagined.  Perhaps national security now requires less constraint on the president.  Whether this argument is persuasive depends on the audience.

(2) Citizenship of the U.S.-born children of illegal immigrants.  Again, I think this question is clear.  As a matter of text and original meaning, the Fourteenth Amendment says flatly that all persons born in the U.S. are citizens, with an exception that (given its obvious original meaning) isn't applicable.  But under a living Constitution, the question becomes subjective and value-driven.  One could easily say that circumstances have changed, that a broad reading of the clause does not make sense in today's world of widespread illegal immigration, and that therefore it should not be extended to a situation the framers never envisioned.  Again, whether this is persuasive depends on the values of the decisionmaker.

I can't say whether Professor Primus thinks originalism is no more determinate than living constitutionalism in these circumstances, but if that is what he thinks, I urge him to take a closer look at originalist scholarship and the text's original meaning.