Key Liberty Votes 2011 (Liberty Brief Book 4)

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Similarly, enforcing the original meaning of the scope of federal power would not completely eliminate federal government policies that infringe on liberty. For example, the original meaning of the Foreign Commerce Clause and the Tax Clause probably gives Congress broad power to enact protectionist legislation restricting the import of foreign goods. A more complete discussion of the relationship between originalism and liberty would also require consideration of the relevance of different competing versions of originalism, such as original intent and original public meaning.

In my view, what is said above holds true under the form of originalism currently dominant among originalist scholars and jurists: original public meaning originalism, which focuses on the public meaning of the text at the time of enactment. Most of it is also valid under the today less popular original meaning approach, which emphasized the intentions of the individuals who drafted the text.

But there are inevitably some divergences between original intent and original meaning, and between different versions to the latter. Still, this necessarily brief and oversimplified survey of the original meaning of the Constitution shows that it provides strong, if incomplete, protection for individual liberty in a variety of ways.


  1. Le chant des secrets (Roman étranger t. 165) (French Edition).
  2. Wyld Wymyn;
  3. Miriams Memoirs of God!

Competing theories must meet a high standard if they are to surpass originalism on this score. The substantial affinity between originalism and liberty is not accidental. The Founding Fathers and revolutionary generation were heavily influenced by Enlightenment theories of natural rights and political economy that placed a high emphasis on individual liberty, and on property rights. The emphasis on individual liberty was perhaps even stronger in the case of the Civil War-era Republicans who drafted and ratified the Reconstruction Amendments. Although originalism offers strong protection for individual liberty, perhaps living constitutionalism can do even better.

The range of theoretically feasible living constitution theories is nearly infinite. I cannot categorically exclude the possibility that one of them would protect liberty better than originalism. However, that result is unlikely in the case of those versions of living constitutionalism that currently enjoy widespread support. It can also protect at least some of the liberties of politically weak minority groups. Depending how broadly the latter concept is interpreted, it could even justify strong judicial enforcement of constitutional rights that are viewed skeptically by conventional left-liberal supporters of the theory.

Prelims-12222 Strategy for Polity

But ultimately, the theory offers little protection for a wide range of liberties that are not closely related to political participation, and whose violation may not disproportionately target minorities or the politically weak. It also offers little justification for judicial enforcement of structural limits on government power that are not focused on either enhancing participation or protecting minority groups.

For these reasons, representation-reinforcement is unlikely to protect individual liberty as fully as originalism. Other influential versions of living constitutionalism focus on keeping constitutional interpretation in line with changing social conditions and the views of popular majorities or influential legal elites.

Whatever their other virtues, these types of living constitution theories are unlikely to provide strong, systematic protection for liberties endangered by the political process. Public opinion and influential social movements sometimes favor enhanced protection for liberty; but very often they favor the exact opposite. Moreover, by privileging currently powerful political forces, popular constitutionalism counsels deference to the very entities that are often the greatest threats to liberty.

With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful

For obvious reasons, freedom is less likely to be endangered by politically weak or disorganized groups than by those that have effectively mobilized themselves and achieved a measure of political influence. The overall implications for liberty are not likely to be as beneficial as those of originalism, unless the judiciary somehow becomes overwhelmingly libertarian—an unlikely eventuality in the foreseeable future.

Moreover, even a strongly libertarian Dworkinian jurist may have difficulty figuring out how to protect liberty as effectively as might be done by following rules enacted by liberty-oriented supermajorities, who may have greater knowledge and insight. Among both originalists and living constitutionalists, there are some who prefer judges to largely defer to the political process. If constitutional interpretation raises difficult questions, why not leave them to the elected representatives of the people, except perhaps in cases where the unconstitutionality of their actions is unambiguously clear?

Such judicial deference is unlikely to provide effective protection for liberty. The political branches of government are often the very entities that threaten liberty the most. Some advocates of judicial deference hope that if judges defer to the political branches of government, the latter will take constitutional rights more seriously, knowing that they cannot rely on the judiciary as a safety net. History suggests otherwise. When the judiciary largely abdicated enforcement of Fourteenth Amendment protections against racial discrimination in the late 19th century, that helped facilitate rampant Jim Crow laws, not careful legislative reflection on constitutional issues raised by racial discrimination.

A similar pattern emerged when federal judges largely abjured enforcement of constitutional economic liberties, property rights, and structural constraints on congressional power from the s to the s. Violations of these constitutional constraints on government power greatly increased, and most legislators stopped giving them any serious consideration. It is also dangerous to rely on public opinion as the main protection for constitutional rights.

Due to widespread public ignorance, most voters have little knowledge of government policy or of the Constitution. Moreover, survey data show that the public often has a strong bias against individual freedom, particularly on economic issues. On both economic and social issues, support for individual freedom is often closely correlated with political knowledge when controlling for other variables ,[13] and knowledge levels tend to be low. Entrusting liberty to mercies of public opinion is often a dangerous proposition. Some argue that nondeferential judicial review is antithetical to originalism itself, which supposedly requires deferring to the legislature in all but the most clear cases of unconstitutionality.

Individual liberty and the importance of the concept of the people

But, as John McGinnis recently explained on this very site , that view misreads Founding-era understandings of judicial duty, which held that judges should only defer in cases where they could not find the answer to a constitutional question by using standard methods of legal interpretation. None of this suggests that we should rely on judicial review alone to protect constitutional rights. Far from it. Successful movements to strengthen protection for individual rights have generally relied on a combination of litigation and political action.

In recent years, it has achieved notable breakthroughs for gay rights, for opponents of state-sponsored racial preferences, and for advocates of constitutional property rights and the right to bear arms. Reliance on litigation and judicial review is just one part of a broader strategy for enhancing freedom; others include conventional political mobilization, and influencing elite intellectuals and policymakers.

Efforts to protect liberty by relying on judicial review alone are likely doomed to failure.

Individual liberty and the importance of the concept of the people | Palgrave Communications

But it would also be a serious mistake to abjure this important tool. Although originalism provides greater protection for individual liberty than other realistically feasible approaches to constitutional interpretation, it still has its limits. At this late date, the judiciary cannot fully restore the original meaning of the Constitution in the face of longstanding adverse precedent and government policy. Attempting to do so would create a political backlash that is likely to undermine both liberty and the institution of judicial review itself.

It could also undermine prospects for stronger enforcement of the original meaning itself.


  1. How Constitutional Originalism Promotes Liberty.
  2. From Morality to Mental Health: Virtue and Vice in a Therapeutic Culture (Practical and Professional Ethics).
  3. The Other Road!

Prudent originalist jurists can use judicial review to move us closer to the original meaning, but are unlikely to be able to get all the way there—at least not for a long time to come, if ever. Moreover, as I emphasized at the start, liberty is not the only value that must be considered in evaluating theories of constitutional interpretation. Despite these caveats, the relatively close affinity between originalism and liberty is an important consideration in evaluating competing approaches to constitutional theory.

It has obvious significance for libertarians. But it should also matter to others who consider negative liberty an important value, even if they are often more willing than libertarians to subordinate it to other goals. Ely, Jr. See Somin, Grasping Hand , ch. See Somin, Grasping Hand , chs.

Somin currently serves as co-editor of the Supreme Court Economic Review, one of the country's top-rated law and economics journals. About the Author.


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  • In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Read More. I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…. I think so. Why the Constitutional originalism promoted liberty…. What were the thoughts of the primary author of the Constitution about the Declaration of Independence?

    States, the best guides are to be found in…The Declaration of Independence, as the fundamental Act of Union of these States. By its fruits shall originalism be known; and the same goes for rival […].

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    Your email address will not be published. Notify me of follow-up comments by email. Notify me of new posts by email. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. About Contact Staff. How Originalism Promotes Liberty It would be foolish to claim that originalism is conducive to liberty under all possible conditions. The Living Constitution Alternative Although originalism offers strong protection for individual liberty, perhaps living constitutionalism can do even better.

    Conclusion Although originalism provides greater protection for individual liberty than other realistically feasible approaches to constitutional interpretation, it still has its limits. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original… Read More. Recent Popular Posts Popular.

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