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12/29/2015

David D'Amato on Libertarians and Originalism
Michael Ramsey

At Liberty Law Blog, David S. D'Amato: The Judicial Necessity of Constitutional Choice.  In conclusion:

... Even for a committed libertarian, the insistence that the Constitution “just is” a consistently libertarian instrument strains credulity on its face. What is rather clearer, perhaps, is that it ought to be a libertarian instrument—that judges should read it as protecting the natural rights of the individual; this, of course, is a philosophical claim and is distinctly at odds with the argument of most libertarian originalists.

Indeed, they tend to actively deemphasize the role of their own convictions in reaching their constitutional conclusions. [Randy] Barnett, for example, asserts that “We are not pushing a libertarian reading of the Constitution.” Yet we can hardly regard it as mere coincidence that the original meaning as conceived by the libertarian legal community aligns quite neatly, almost perfectly, with their normative commitments and political ideology. What are the chances that all libertarian policy prescriptions are so seamlessly consistent with a principled originalist method of constitutional interpretation? Or as philosopher Jacob T. Levy recently remarked, “Your views about what laws are bad shouldn’t align too closely with your theory of what laws are unconstitutional.”

So while the particular and peculiar brand of libertarian originalism is not without appeal, especially for one who is already a radical libertarian, it often appears too convenient. As Professor Mark R. Killenbeck writes, this “ ‘new originalism’ is incredibly seductive,” but its unique and delicately assembled recipe of historical and philosophical claims are ultimately a bridge too far.

Moreover, libertarian faith in the judiciary may be misplaced, with judges likely to be more statist and Progressive than most Americans. Indeed, the federal bench in particular is likely to be even more confident in the boundless benevolence of omnipotent government than either house of Congress. As Judge Richard Posner observed in a 2009 interview with Russ Roberts, “Really the Supreme Court has written a pretty blank check to the government.”

As libertarians and conservatives, we ought not needlessly bind ourselves to any particular interpretive idiosyncrasy. Our Progressive adversaries feel no such arbitrary compulsion to adhere to any fixed method of interpretation, for they accept, at least tacitly, that all such methods are themselves grounded in normative ideas. Sunstein’s book is refreshing in its acknowledgment of this fact. The Constitution has been a kind of Rorschach test, seeming to recommend whatever politico-economic philosophy or program its interpreter espouses.

As unpalatable as it may be to us as libertarians and conservatives, living constitutionalism of some variety may well be the interpretive method most amendable to libertarian ideas, affording the adaptability necessary for transitioning from the soft-authoritarian Progressivism of the present moment (which, we should note, is supported by mountains of precedent) to a free society with a limited government.

A strong statement indeed, although one might think the third-to-last paragraph somewhat in tension with the last paragraph.  I guess the question for libertarians is, are you more likely to convince legal elites of libertarianism or of originalism which (at least to some significant extent) produces libertarian results?