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.