Richard Primus at Balkinization: A Small Note on Gary Johnson’s Originalism. From the introduction:
Last week, Libertarian Vice-Presidential candidate Bill Weld created a small stir among committed libertarians by saying that a Johnson-Weld administration would want to appoint Supreme Court Justices in the mold of Stephen Breyer and Merrick Garland. The stir was understandable. Justice Breyer is, after all, probably the least libertarian member of the current Court, and Judge Garland shows no signs of harboring a libertarian constitutional vision either.
What I wish to call attention to is the juxtaposition between the negative reactions that libertarians understandably voiced to Weld's comment and the complete absence of negative reactions to another comment about Supreme Court Justices made in the same interview–a comment that the person at the top of the ticket made just before Weld named Breyer and Garland.
The reporter conducting the interview asked first Johnson, and only then Weld, about potential Supreme Court nominees. (Johnson's the one running for President, after all.) Johnson named no names, and he didn't give an in-depth answer. But he did say that he'd want to appoint Justices who heeded the Constitution's original meaning. To be precise, he said he'd want "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.
It would be a mistake to think that the Constitution as originally understood ordained any of those theories. But it would also be a serious distortion of history to think of the Founders' Constitution as distinctly libertarian.
And further:
So far I've been discussing what I take to be a straightforwardly likely possibility — that Johnson endorses constitutional originalism on the mistaken understanding that the Founders shared his libertarian values, and that libertarians in his audience approved of the remark because they share the mistaken understanding. But it's worth canvassing two other possibilities.
One is the point for libertarians of originalism isn't that libertarians think the Founders were libertarians; it's that originalism conduces to the rule of law, and the rule of law is in turn conducive to liberty as libertarians understand liberty. The trouble with this theory, though, is that it makes sense only if originalism really could deliver the rule-of-law benefits that this theory claims for it, and I don't think it can. After all, the reason why originalism is supposed to be good at delivering those benefits is that it is supposed to create a shared objective meaning for the law, one rooted in something external to the intuitions or worldviews of the people who happen to be the decisionmakers. But originalism in practice delivers enormous indeterminacy in the law. [ . . . ] We all see the Founders differently, because we all see ourselves in them. Indeed, part of why so many of us can love the Founders is precisely that we all see them in slightly different lights.
The other possibility, which would be a hard position for a candidate to endorse, is that Johnson would like to appoint originalist Justices who would also have libertarian politics because he knows (a) that Justices with libertarian values will likely read Founding sources to support libertarianism, whether or not dispassionate historians will read them that way, and (b) it's rhetorically more powerful in constitutional law to claim the sanction of the Founders for your arguments than not to. In other words, he'd want libertarian Justices, and within the world of libertarians he'd want originalists, because they're the libertarians most likely to deploy — self-consciously or otherwise — 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.
At Liberty Law Blog, John McGinnis responds: Why Libertarians Should be Originalists.
[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.
The Constitution also largely creates rights against the government, not claim rights to government services. This design favors the libertarian as opposed to the social democratic view.
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.
Further note: Ilya Somin had an essay on this a while back: How Constitutional Originalism Promotes Liberty.
I generally agree with Professors McGinnis and Somin on this. While the Constitution's original meaning does not deliver everything a libertarian might want, it does offer a federal government sharply constrained by separation of powers and federalism, and state and federal governments constrained by (at least) basic rights guarantees. Living constitutionalism does not offer any of these things; it offers only the structural and rights protections that particular judges think appropriate in light of modern circumstances, whatever those may be. Moreover, appeal to originalism offers libertarians a way to ally with other originalists, where insistence on a pure libertarian moral reading of the Constitution does not.
Also, it's worth noting that Professor Primus' post seems to assume a purely political role of the Supreme Court. That is, in his view libertarian candidates should prefer judges that advance libertarian political goals (and, presumably, Democratic candidates should prefer judges that advance Democratic party goals and Republicans should prefer judges that advance Republican party goals). Perhaps that is so in the modern judicial world. Indeed, as regular readers know, I would endorse it as the main alternative to originalism. However, in my view Governor Johnson should be commended for trying to get beyond this political conception of the Court.
Posted at 6:00 AM