As an update to my prior post, here's another thoughtful response to Richard Primus on libertarianism and originalism — at the Federalist Society Blog, Evan Bernick: The Libertarian Case for Originalism. Interestingly he begins (as I would) with a rule of law argument:
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.
He then says (and I agree) that if the Constitution were (in its original meaning) an evil document, we would be entitled to reject it. But it is not:
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.
Again, I agree (though he and I probably have a somewhat different view of the Ninth Amendment).
Finally, a return to the rule of law:
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.
A magnificent essay all around.
Posted at 9:30 AM