Mark Kende has written a number of posts on Prawfs about constitutional pragmatism. His most recent post got me thinking a bit.
Thus, some of the most principled legal scholars I know find the idea of pragmatic arguments troubling in certain circumstances. Yet constitutional pragmatism has important moral components. Justice Breyer’s pragmatism values the idea of democracy. Judge Posner is more concerned about arriving at the best result, often using economic tools. In the philosopher’s realm, William James and John Dewey shared many moral views, such as the value of democracy, tolerance, education, debate, civil society (including churches), pluralism, reason, community, etc. These are quite important aspects of a liberal democracy.
What about a pragmatism based on the idea of maximizing individual liberty?
Most libertarians today (Barnett at the fore) tend to couch all of their jurisprudence on some type of originalism, rather than pragmatism. Barnett’s presumption of liberty is nominally grounded in the original understanding of the Constitution, but frankly, would a presumption of liberty work by itself from a libertarian pragmatism point of view?
If everyone is an originalist now, and the jurisprudence has gone through a form of genericide, perhaps a different approach may be more viable and sustainable?
To be continued.