Oct 19, 2012

Posted in Originalism, Precedent, Unprecedented

How should Libertarian Originalists view “departures from the original meaning . . . [that] promoted rights that libertarians would favor”?

In a response to Jason Brennan’s post on “What Libertarians Think about the U.S. Constitution” based on his new book Libertarianism: What Everyone Needs to Know, Mike Rappaport offers his take, and makes this interesting point:

It is true that over time certain of the U.S. Constitution’s limitations have become less effective.  Federalism was overrun by the New Deal.  On the other hand, other departures from the original meaning by the Supreme Court have actually promoted rights that libertarians would favor.

Mike does not offer any examples of what these departures may be. One example may be the free speech provisions of the First Amendment, which seem to be much broader than the original conception of free speech entailed. (Cf. Eugene Volokh’s article). Also, I am fairly sure that the scope of the criminal procedure protections today–such as the exclusionary rule, Miranda, and other doctrines–were non-existent in the founding era. Another example may be the 11th Amendment. Justice Souter’s rendition of the history of sovereign immunity in the states always seemed to make more sense than Justice Kennedy’s position, which has to ignore the actual text of the 11th Amendment (admittedly conflating textualism and originalism).

Libertarians tend to like broad notions of free speech, strong protections against criminal investigations, and state sovereign immunity. But, many libertarians are also quite willing to argue against precedents inconsistent with original meaning. What does it mean for originalism if libertarian originalists seek to explicitly rely on a precedent that is entirely inconsistent with original meaning?

Is it the case that some argue against non-libertarian non-originalist precedents, but at the same time accept libertarian non-originalist precedents?

This argument ties into a point I made in this article concerning the relationship between libertarianism and originalism. In a sense, the primary argument challenging the ACA was premised on accepting, but not acquiescing, to non-originalist precedents like Wickard or Raich, in order to achieve the broader goal of striking down the ACA, a law that was inconsistent with original understanding.

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  • Jacob Berlove

    I think there are very solid originalist cases for state sovereign immunity, the unconstitutionality of state racial classifications, most of what is currently protected by SCOTUS in the free speech area, and for a requirement of either the exclusionary rule or an adequate substitute. At the very least, the fourth amendment required the government to insure the “secur”[ity] of people in their persons, etc. which used to be accomplished by an effective tort system but now can only be accomplished through a rather strict exclusionary rule. This was originally understood to require a warrant in many cases, with rather tough consequences towards a violating government instead of the no real consequences that the Hudson v. Michigan majority sanction. It isn’t even clear that back in the early days when it was possible to successfully sue that judges would have let it unconstitutionally seized evidence. In any event, there can be no serious question about a constitutional requirement of an adequate deterrent.

    • http://joshblackman.com/ Josh Blackman

      Everything you said is true, but the Supreme Court’s precedents haven’t been so grounded. Is it enough to articulate originalist bases for the Court’s non-originalist precedents, and just leave it at that? In other words, if the Court has fortuitously reached results compelled by original meaning, should originalists just say, good enough…

    • http://joshblackman.com/ Josh Blackman

      Everything you said is true, but the Supreme Court’s precedents haven’t been so grounded. Is it enough to articulate originalist bases for the Court’s non-originalist precedents, and just leave it at that? In other words, if the Court has fortuitously reached results compelled by original meaning, should originalists just say, good enough…

    • http://joshblackman.com/ Josh Blackman

      Everything you said is true, but the Supreme Court’s precedents haven’t been so grounded. Is it enough to articulate originalist bases for the Court’s non-originalist precedents, and just leave it at that? In other words, if the Court has fortuitously reached results compelled by original meaning, should originalists just say, good enough…

    • http://joshblackman.com/ Josh Blackman

      Everything you said is true, but the Supreme Court’s precedents haven’t been so grounded. Is it enough to articulate originalist bases for the Court’s non-originalist precedents, and just leave it at that? In other words, if the Court has fortuitously reached results compelled by original meaning, should originalists just say, good enough…

    • http://joshblackman.com/ Josh Blackman

      Everything you said is true, but the Supreme Court’s precedents haven’t been so grounded. Is it enough to articulate originalist bases for the Court’s non-originalist precedents, and just leave it at that? In other words, if the Court has fortuitously reached results compelled by original meaning, should originalists just say, good enough…

    • http://joshblackman.com/ Josh Blackman

      Everything you said is true, but the Supreme Court’s precedents haven’t been so grounded. Is it enough to articulate originalist bases for the Court’s non-originalist precedents, and just leave it at that? In other words, if the Court has fortuitously reached results compelled by original meaning, should originalists just say, good enough…