Postmodern Conservative

Law & the Courts

Libertarian Constitutionalism

Here’s an excellent new paper “The Mainstreaming of Libertarian Constitutionalism” by law scholars David Bernstein and Ilya Somin, both of whom teach at George Mason University. (H/T Instapundit) Even if you’ve had only passing exposure to constitutional law, you still might find this academic paper engaging. I’d say the same thing about Bernstein’s book Rehabilitating Lochner.

Peter Lawler has long stressed the importance of the newer libertarian constitutional thinking — see his 2005 essay “Putting Locke in the Locke-Box,” from Stuck with Virtue.  I concur, and I’d recommend Bernstein’s book, David Mayer’s Liberty of Contractand this paper also, for the citizen wanting to get acquainted with it. Then perhaps it’s on to Richard Epstein and Randy Barnett.

I’d of course advise you to read these alongside works from the originalist school, the school I think is truer to the Constitution, such as books by Antonin Scalia and Christopher Wolfe, or the masterful chapter introductions found in Rossum and Tarr’s con-law textbook.

The biggest issue originalists have with libertarian con-law concerns substantive due process. As I put it in my “The Five Conceptions of American Liberty” piece, the libertarian con law scholars “want the Court to be consistent by endorsing both kinds of autonomy-securing substantive due process limitations.” Lochner and Lawrence.  Allgeyer and Casey. Both economic autonomy and sexual/reproductive/identity autonomy. (Originalists think all kinds of substantive due process are suspect, even if my impression is that most make room for what’s called “incorporation,” which was initially justified by the substantive due process doctrine, on other grounds.)

As political philosophy and inquiry about America’s public philosophy, the libertarian position here is pretty bad: it idolizes Locke, ignores Tocqueville’s warnings regarding individualism, and neglects the importance of the “classical-communitarian” conception of political liberty in the founding of America and to the practice of any really robust federalism. Admittedly, this elevation of individual liberty over every other sort is a position more moderated in some of the scholars, like Richard Epstein — that seems an aspect of his strong preference for the “classical liberal” tag over the libertarian one. Still, the overall tendency is unmistakable, and is false to any fulsome understanding of human nature or of America.

But, as much as I hate to admit it, the libertarian con-law take on the legal history of what came to be called substantive due process is pretty solid — the libertarian scholars can show you that the “Old Court” (pre-1937) was more consistent than most think, and not at all dogmatically laissez-faire in the way its progressive critics held.  And what they teach about the fuller Old Court understandings of due process and other concepts make the usual originalist line against both kinds of substantive due process harder to argue. I didn’t say “wrong to argue,” just, harder.

Broadly related to this, is what Bernstein and Somin continually show in this paper, that the post-1937 Court often acted in ways rather like those of the Old Court, albeit under new names, theories, and tests. In several key fields of con law, it wasn’t pure progressive jurisprudence that won out, but a jerry-rigged combination of classical liberalism and progressivism. True, they don’t stress enough that the living constitutionalist approach, one that will remain perilously corrosive of our Constitution and any coherent theory of it until decisively repudiated, was a key means used for that jerry-rigging. They are more interested in the ever-returning ghost of the Old Court, for it encourages their inclination to more systematically work out the logic of the tradition that it was trying to articulate.

Beyond my differences with Bernstein and Somin, however, I again stress that this is the kind of paper that can really open up the field of constitutional law for someone new to it, and provide greater summary understanding of it for the more seasoned reader. I found it ably explained certain long-puzzling-to-me details about our jurisprudential history.

But one parting observation. Over and over, the paper stresses libertarian influence upon, commonalities with, and hopes for eventual agreement on certain issues with, the liberal jurist mainstream. By contrast it says little or nothing of libertarian influence upon, commonalities with, or potential agreement points with originalists, and with conservatives generally. Is that simply a matter of rhetorical presentation for one paper? Of smart academic politics? Or, is that a sign of a deeper desire to explore and establish liberal-tarian common ground? Of a desire that goes deeper than the libertarians’ greater case-by-case tendency to wind up on the same side as the originalists?  


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