Thursday, February 28, 2008

In Praise of Libertarian Originalism

Several weeks ago the American Constitution Society and Federalist Society at Michigan State University College of Law invited another professor, Lee Strang, and me to participate in a debate entitled “The Many Faces of Originalism.” Since we’re both like kids in a candy store when asked to talk about the Constitution, we jumped at the chance (well, I jumped at the chance - the debate was his idea).

Professor Strang argued for “Common Good Originalism”; I weighed-in for “Libertarian Originalism.” I think he got it about right when he estimated the two positions are in agreement about 70% of the time and disagreement about 30%. I describe here why I think the Libertarian Originalist interpretive approach to the Constitution is the better of the two.

We might first ask “Why Constitutionalism” at all? Why did We the People choose to solidify certain governmental arrangements and rights by placing them beyond the reach of ordinary politics? Why not a more “democratic” regime of the sort Thomas Jefferson suggested, where any constitution would be more legislative in nature in that it could be easily amended by each generation in order to ensure that the dead past would not constrain the living present?

James Madison, by contrast, favored a different sort of Constitution - the sort we ended up with - one that would provide firm and lasting constitutional constraints to ensure the conditions for the peaceful, long-term operation of democracy in a pluralistic society of many religions, races, ethnicities, and cultural backgrounds.

Originalists of all descriptions basically agree that at its core the Constitution is a kind of rulebook describing how the rules are played. It’s a “pre-commitment strategy” of sorts, designed to restrict lawmakers so they will not make up new rules along the way in order to further their own self-interest. The framers recognized human fallibility and the tendency of power to corrupt, and they intended to prevent lawmakers themselves from making the laws by which they make law.

As Thomas Paine explained in Rights of Man, “A Constitution is a thing antecedent to a Government, and a Government is only the creature of a Constitution…. [I]f experience should hereafter show that alterations, amendment, or additions are necessary, the Constitution will point out the mode by which such things shall be done, and not leave it to the discretionary power of the future Government…. A Government … cannot have the right of altering itself. If it had, it would be arbitrary. It might make itself what it pleased; and wherever such a right is set up, it shows there is no Constitution.”

And Madison, in Federalist 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Men – and women – are not angels, of course, so a Constitution IS necessary.

On this much originalists of all descriptions can agree. But there are some things on which we disagree. Specifically, we disagree upon the scope of rights and liberties protected in the Constitution.

The libertarian originalist understands that the Bill of Rights defines some, but certainly not all, of the rights and liberties to be protected by the Constitution. The Ninth Amendment explicitly and unequivocally makes the point: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is given added effect when read together with the Tenth Amendment, which states, “The Powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” It is the people, in other words, who have the ultimate authority – not the government; and it is the people whose interests are to be protected – not the government’s. As Jefferson said, ““[K]ings are the servants and not the proprietors of the people.”

On this view, since government exists in the first place to preserve individual liberty, liberty presumptively trumps government power when the two come into opposition. While there is no question democratic government plays a vital role in determining policy for the community (people are not angels, after all), anytime it acts it must satisfy the burden of demonstrating its actions do not improperly limit liberty. As Paine says in Rights of Man, “Man did not enter into society to become worse than he was before, not to have fewer rights than he had before, but to have those rights better secured.”

The libertarian originalist looks at the constitutional text, structure, and history, and concludes that the single irreducible value eclipsing all else under the American constitutional regime is Liberty/Freedom. Historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than ‘freedom’ … or ‘liberty.’ The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings….”

Historian Bernard Bailyn reports that the most basic goals of the American Revolutionary Era were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” Thomas Paine captured this understanding of the superior natural relationship of the people to their government in two enormously influential pamphlets, Common Sense in 1776 and Rights of Man in 1791-94, stating, “Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one…; Government, like dress, is the badge of lost innocence….”

Or, to put it in more contemporary terms, imagine being able to use the constitutional equivalent of the “Google-Earth” feature of the popular internet search engine to zoom-in for detailed constitutional concepts and zoom-out for the more global concepts. If we were to zoom-out all the way to view the Constitution from the widest possible angle, where only the single most fundamental overriding principle of the document is legible, we would see the words “Liberty/Freedom.”

If courts were to adopt the libertarian originalist perspective in interpreting the Constitution, conservative and liberal judges would not need to argue about what rights and liberties existed or did not exist at the time of the framing – instead, the presumption is that a broad universe of rights and liberties do exist, and government may only limit them upon demonstration of very good reasons.

But what we have in modern America is an altogether different story. The original libertarian understanding of the Constitution is nowhere to be found in the conventional wisdom of either liberal or conservative (or anywhere in between) mainstream constitutional theory, both of which view rights and liberties like so many sugar cubes to be doled-out to a cooperative pony. As Professor Randy Barnett explains, “The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted Constitution [we have today, however,] creates islands of liberty rights in a sea of government powers.”

How this happened is a story for another day. (But if you’re interested, see Michael Anthony Lawrence, Government as Liberty’s Servant: The ‘Reasonable Time, Place & Manner’ Standard of Review for All Government Restrictions on Liberty Interests, 68 La. L. Rev. 1 (2007).)

For now my point is simply this. The most important, influential writings and commentaries of the American founding and reconstruction eras extol the virtues of freedom. By contrast, we do not find any serious argument in these writings for the sort of overly-powerful government that we have today in America. Nothing in the Constitution – not even an appropriate healthy respect for recognizing community interests as identified through the democratic process - mandates such an extreme level of judicial deference to government as currently exists. The judiciary’s current presumption-of-constitutionality review offers government too much temptation and leeway to act in ways that infringe Liberty/Freedom, which, as we have seen, constitutes the very core ideals upon which the nation was founded and the Constitution is designed to protect.