Monday, October 25, 2010

Libertarian—But Not Originalist!—Constitutionalism

This past weekend, I spoke at the 2010 Students for Liberty Southern California Regional Conference, held on the campus of Pepperdine University, in Malibu, California. I enjoyed meeting a lot of very impressive young people, and sharing with them my thoughts on, Libertarian—But Not Originalist!—Constitutionalism. In brief, I argued for:

  • Interpreting the Constitution according to its plain, present, public meaning (rather than its original one);
  • Constructing the Constitution as we would a standard form agreement, thus favoring individual rights over federal powers;
  • Deciding cases involving Constitutional rights by Citizen Courts structured akin to the panels that help to guarantee the fairness of commercial arbitration procedures; and
  • understanding the Second Amendment to protect subjects from militias (rather than preparing them to serve on militias).

For a simple picture of the sort of non-originalist constitutional theory I promoted—a "consensualist" theory—consider the following, modeled on the Nolan Chart:

Chart of Constitutional Theory in 2-D

I swallowed hard and conceded that a consensualist reading of the Constitution might support an argument in favor of a general federal dole. I see that as a fair price for showing that I didn't choose my theory just to support my favorite policies, however, and think that liberty still comes out ahead. A consensualist reading of the constitution puts very strict limits on the federal government's power to tax and regulate, after all.

I welcome your comments on either the PowerPoint presentation or the brief written document that I prepared to accompany the talk.


Tim Kowal said...

A very stimulating paper! Here are a few thoughts that immediately occurred to me when reading the brief paper:

First, using current meaning rather than original meaning divorces the words from the structure and purpose of the document. Interpretive methods such as looking to sources like the Federalist Papers to understand the meaning of objectives of the various clauses in the Constitution would seemingly have no use. The document would have an expiration date occurring when present meaning of the language used in the Constitution strays to the point where the document literally makes no sense. In many cases, this is already true. “Congress shall make no law” now means “government shall make no law.” (Chris Coons *wasn’t* misquoting the First Amendment!) “Due process of law” now quite literally means “a law rationally related to a legitimate government purpose, or in instances of certain rights, a narrowly tailored law designed to advance a compelling government interest.” “Equal protection of the laws” means “equal laws.” And on and on. These new “public meanings” of constitutional language make it more and more farcical to look to take the text seriously to begin with. Slowly but surely, it becomes far more plausible to focus on certain ideals that can be roughly abstracted from the text, or from their penumbras and emanations.

Second, and relatedly, the approach puts too much power in the hands of linguists and philosophers. What version of “liberty” shall we choose from? Hegelian? Lockean? Rousseauian? For all its appeal to red-blooded Americans, words like “liberty,” “rights,” and “equality” have deep philosophical and historical underpinnings. Even simple folks use the words differently: when they talk about their “right” property, they talk in a Lockean/libertarian framework; when they talk about their “right” to pass laws as they see fit, they talk in a more Hegelian framework. It would be all too easy for judges to flip through these differing abstractions depending on their own preferences.

Third, the current meaning approach is yet another way to put the power of deciding the most fundamental principles of our republic in the hands of judges rather than the people. For who is to determine when the earlier, historical, “original” meaning has sufficiently morphed into a new, fully-developed “current” meaning, other than judges? Thus, the approach fails to match the allure of originalism which puts the power to decide the people’s fate in the people themselves, rather than with judges.

Fourth, the idea that justification or consent theory suggests that people might throw off the “dead hand,” the authority of past generations, might actually be said to seek for itself more power than less. As C.S. Lewis explained in The Abolition of Man:

“Each generation exercises power over its successors: and each, in so far as it modifies the environment bequeathed to it and rebels against tradition, resists and limits the power of its predecessors. This modifies the picture which is sometimes painted of a progressive emancipation from tradition and a progressive control of natural processes resulting in a continual increase of human power. In reality, of course, if any one age really attains, by eugenics and scientific education, the power to make its descendants what it pleases, all men who live after it are the patients of that power. They are weaker, not stronger: for though we may have put wonderful machines in their hands we have pre-ordained how they are to use them. And if, as is almost certain, the age which had thus attained maximum power over posterity were also the age most emancipated from tradition, it would been engaged in reducing the power of its predecessors almost as drastically as that of its successors.”

Tom W. Bell said...

Thank you, Tim, for your detailed comments. I'll reply in very brief.

1) Using the present meaning of the Constitution by no means "divorces the words from the structure and purpose of the document." Just as with contracts, interpreting the words of the Constitution requires reference to the structure of the overall document and its (present) purpose. See, e.g., the paper's analysis of the 2nd Amendment from a consensualist point of view--I look at "Militia" as used *throughout* the text and refer to the arch-purpose of protecting individual rights. Also, your apt examples of misconstrued Constitutional text, because they come from judicial precedents that arguably *ignore* the text, in fact support the case for relying on the plain, present, public meaning.

2) Go back and read the bit about Citizen Courts. I do not advocate deferring to judges; quite the contrary, I suggest an institutional change that would empower the Constitution's subjects to interpret it. What do originalists offer in reply? Hagiography and vague hopes that untouchable judges will cede their powers.

3) Again, you've overlooked the bit on Citizen Courts (how short do I have to make a paper to get it read in full!?), which explains why federal judges should not enjoy an exclusive power to apply the Constitution. Also, you fail to explain how originalism avoids the very problem you (wrongly) attribute to consensualism, as originalists can but rather lamely ask judges to accept their philosophy.

4) By no means would consensualism entail throwing away the best of what the Founders bequeathed to us. Do we not still use the text they ratified? Most of the Constitutions' words mean the same thing now that they meant then--if, that is, we hew to plain, present, public meaning rather than judicial glosses. And, anyhow, Lewis is not saying we should submit to the dead hand of the past; he says that we cannot escape some of its influence, like it or not, and that the more any one generation makes its *own* world, the more it controls later ones. He's wrong about that, for reasons I won't belabor, but you might as well get it straight.

Come on, originalists! Is that the best you've got?

Tim Kowal said...

If I understand correctly now, if we are to interpret the Constitution according to its present purpose, then the interpretation of its clauses would comport with that purpose. Fair enough. But then it seems we run into the same problem as with living constitutionalism, where the words in the Constitution don’t seem to comport with the English language. I.e., eating your own wheat is “commerce,” a seasonable puddle is a “navigable waterway of the United States,” a private strip mall is a “public use,” etc. In other words, the proposed theory does not seem to offer a lot of comfort that the “structure of the overall document” and “its (present) purpose” will remain aligned other than by accident. Then again, I have to admit I do not quite follow the argument from the “Militia” as briefly laid out in the paper, so perhaps this holds the key I am not grasping.
Perhaps I also need to read your lengthier treatments on the Citizen Courts. I take the general point that such an approach can solve some of the problems that originalism can’t. But I can also see it serves up some problems of its own. Is a consistent, intelligible body of constitutional case law and precedent possible under such an approach? Or would this approach also effectively usher in the end of decisional law? Perhaps that is the idea? And would it require a rewrite of Article III, vesting “the judicial power in a supreme Court”? This seems a serious concern, the “the judicial power” would not be vested in any single “court.” This is pretty radical stuff.

Tom W. Bell said...

Thanks, again, Tim, for your comments. I will add you to the first footnote of my draft paper ('cause I guess I'll turn this early draft into something publishable).

You worry about cases "where the words in the Constitution don’t seem to comport with the English language. I.e., eating your own wheat is 'commerce,'" I worry about those cases, too. But not under consensualism. You know that eating your own wheat is not commerce. I know it. Almost all members of the public know it. Only a few judicial specialists--and those of a certain stripe, only--see it thus. So consensualism, because it starts with the plain, present, public meaning, cures the ailment you (rightly) flag.

You close by questioning some problems raised by the theory, again rightly so. Consensualism may get us closer to justification, but that goal, like a market in perfect equilibrium, must forever elude us except in theory. The end of decisional law? Probably not. citizen courts can issue opinions, after all. The interesting question is how authoritatively such opinions will speak.

For reasons I'll say more about in the paper, I think the Constitution allows citizen courts. For one thing, Congress has express authority to create such courts inferior to the Supreme Court as it sees fit. For another, remember, any vagueness left after applying the ppp meaning must be construed in favor of subjects' rights--here, the right to a fair hearing.