Is Originalism Libertarian?

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When one hears
Supreme Court nominee Elena Kagan confessing "We are all originalists"
during her Senate
hearing
, one might think that originalism is really in. But
even if it is, what does it mean for libertarians? Ilya Shapiro
recently
suggested
that originalism is "necessarily libertarian."
Is it really so? And what is originalism anyway? Some think that
it is about judges abandoning "judicial activism" and
accepting the original, libertarian understanding of the Constitution,
the meaning the Framers intended to be preserved. It is not that
easy though, and if libertarians want to engage in what promises
to be a revival of the revolutionary doctrine (particularly disliked
by zombies
), they should understand both the advantages and
limitations of the originalist interpretation of the Constitution.

What is
originalism?

Originalism
is a method of interpreting the Constitution, apart from that there
is no simple answer to the question "what is originalism?"
The main reason is that there really is a variety of "originalisms."
Historically, the first version of originalism was "original
intent" originalism and it was based on an assumption that
"constitutional interpretation should be guided by the original
intentions of the framers." Of course, many questions arise
as to what the "intentions" are, whose intentions we should
be concerned with and so on. Overwhelming and arguably conclusive
criticism rendered original intent originalism dead and buried in
the eyes of academics.

However, this
critique did not bury originalism for good. In 1986 Antonin Scalia
called for changing the label "from the Doctrine of Original
Intent to the Doctrine of Original Meaning." This event marks
the advent of "New Originalism" or "original public
meaning" originalism. New Originalism is not concerned with
intentions or expectation of the Framers. Instead, it tries to establish
original public meaning of the Constitution (as amended). What does
it mean in practice? Usually, it means a tedious research in 18th-century
dictionaries, newspapers and legal treatises in search of the meaning
that was shared by users of English at the time of ratification.

Judicial
activism and restraint

Originalism,
which is a formalist method of interpretation, constrains the judicial
discretion. And this is a good thing, because it is reasonable to
expect that the original meaning of the Constitution expresses more
libertarian views than that of most of the judges. There are some
judges who would widen the area of personal freedom compared to
the original meaning, but most of them would not. Thus, it is prudent
to accept originalism.

Originalism
also provides us with an alternative standard of judicial activism.
What is judicial activism after all? Some say that a judge is an
activist when he strikes down a law, or a precedent, thus failing
to give deference to the political branch of the government. According
to this understanding both the Warren Court and Rehnquist Court
were activist (and the latter much more so), although their activism
was directed towards very different goals. Originalists could say
that a judge is an activist when he fails to strike down a law,
or a precedent, that does not conform with original public meaning
(or original intent, if anyone knows what that is) of the Constitution.

It is now easy
to see, that for example, striking down Roe v Wade or the
Federal Reserve Act, would be considered judicial activism under
the first view, but it would not be considered as such when we accept
originalist standard (assuming that Roe was wrongly decided
on constitutional basis).

Undesirable
results

From the libertarian
point of view, showing the unconstitutionality of the Federal Reserve
Act or the Social Security Act is obviously a desirable result of
accepting originalism. Similarly with the original meaning of the
Ninth and Tenth Amendments. But libertarians should remember that
the framers of the Constitution and the Amendments were not necessarily
libertarian. Of course, New Originalism is not concerned directly
with the authors, but nevertheless we have to concede that the Constitution
is not a pure libertarian manifesto.

The original
meaning of the First Amendment might not be as radically libertarian
as we would like it to be. J. H. Huebert makes a similar case in
respect to the Fourteenth Amendment. Accepting originalism is a
strategy, and for this strategy to succeed, libertarians should
not follow the example of Justice Scalia, who forgets
about
his originalism when it could contravene his extralegal
beliefs.

Should libertarians
endorse originalism?

Libertarians
are not a majority, and presumably will not become one in the foreseeable
future. If they want to achieve greater liberty in this political
system, they should be able to use arguments that may appeal to
judges. That being said, libertarians may consider originalism as
"the most appealing way" to interpret a written constitution,
as there is great evidence that this method of constitutional interpretation
yields the most libertarian results.

If one does
not believe in the intrinsic legitimacy of the Constitution (and
some libertarians do believe in it, take Randy Barnett for example),
then there is nothing in this method that would make it "necessarily
libertarian." The acceptance of originalism requires a consequentialist
approach: we expect better outcomes with originalism than without,
given all the constraints of our political system.

It is a bundled
deal nevertheless, and it might happen that originalism will give
us some undesirable results. To reject originalism only when it
does not suit us (following the example of Antonin Scalia) undermines
the originalist argument in other cases. Originalism comes at a
cost, but I believe that it is a cost worth paying.

Of course,
there is a risk of idealization and romanticization of originalism,
and that should be avoided. Originalism is not a panacea or a complete
answer to the problem of big government. Arguably there are better
ways to promote the agenda of personal freedom: nullification may
be one, grassroots political action might be another. Accepting
originalism does not mean abandoning more principled, rights-based
approaches. Libertarians should still criticize the state and even
the Constitution. It means only that they should accept the rules
of the judicial game and play along to win as much as possible.

July
22, 2010

Mikołaj
Barczentewicz [send
him mail
] is currently a summer fellow at the Mises Institute.
His main interests are libertarian philosophy of law and theories
of constitutional interpretation. Visit his website
and blog
and follow him on Twitter
and Facebook.

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