Why Bother with Originalism? A Review of Our Republican Constitution
In considering constitutional questions, libertarians shouldn’t let the text come before justice and liberty.
Georgetown law professor Randy Barnett is among the foremost constitutional theorists of his generation—or any other for that matter—known in particular for his distinctive theory of constitutional originalism. With his latest book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, Barnett continues his project of rescuing the Constitution by contrasting “two visions of ‘we the people.’” These two visions, Barnett argues, correspond with two fundamentally opposed ideas of the Constitution, the Democratic Constitution and the Republican Constitution, which names indicate not the Democratic and Republican political parties 1 but different conceptions of popular sovereignty. In straightforward and accessibly prose, Barnett explains the connection between this philosophical idea of popular sovereignty and his two ways of thinking about our most important source of law. The Democratic Constitution “starts with a collective vision of We the People,” meaning that it regards the will of the people as the ultimate sovereign. This is deeply problematic, Barnett contends, because, in practice, it means simply that majority rule is the final arbiter of any legal or political question; individual rights may be stamped out and disregarded insofar as the majority has decisively expressed its will, with courts standing aside and deferring to the political branches as the legitimate agents of the people, that is, of the majority of them.
But, Our Republican Constitution asks, what if We the People actually means something other than merely the crude might‐makes‐right of simple majoritarianism? Barnett’s Republican Constitution sees We the People as representing not some imagined collective but as standing in for each and every distinct individual in the country. In this conception, every individual is sovereign over his life, and the government created by the Constitution of 1789 is only an agent, empowered to do no more than those things to which the principal (We the People, each and every one) consents. Here, Barnett helpfully explains the “long‐standing principles of agency law,” which, he says, ought to inform our understanding of the Constitution in light of the available evidence. Barnett’s argument proceeds from this claim that the Constitution created a valid principal‐agent relationship, while acknowledging that of course no individual alive today consented (or could have consented) to this arrangement. Because, in this case, consent is hypothetical or presumed—we couldn’t practically obtain the consent of every individual in the United States—the government can’t possibly have the power to do anything more than effect the principle of justice. Readers familiar with Barnett’s many previous works in the area of constitutional law will recognize this as the argument that Lysander Spooner employed in 1845’s The Unconstitutionality of Slavery. 2 And this brings us to Barnett’s theory of constitutional interpretation, his New Originalism. While Barnett’s unique theory of originalism is not at the center of Our Republican Constitution, it nevertheless forms the substructure upon which the book’s argument are built, so a consideration here will be useful, if not necessary.
As we have just seen, Barnett begins with the principles of the master‐servant or principal‐agent legal relationship, whereby the servant, the government, is bound not to do anything at odds with justice for each and every individual. On this point, Barnett writes, “After all, we the people cannot be presumed to have consented to delegate to our servants in the legislature the power to arbitrarily or irrationally restrict the exercise of our preexisting rights to life, liberty, and the pursuit of happiness.” He cites John Locke’s theory of the social contract, in which Locke argues that people can’t be supposed to have consented to something that would leave them worse off or that would deprive them of their rights. For Barnett, it thus follows that the Constitution enshrines an essentially libertarian picture of freedom and natural individual rights. That claim, though, isn’t as obviously true as Barnett thinks. In fact, most of mainstream political philosophy since Rawls has taken it for granted that the opposite is probably true, that people would hypothetically be ready and willing to give up all sorts of the individual rights we libertarians love if properly abstracted out of the knowledge of their own talents, abilities, social standing, race, gender, etc. On its own, Barnett’s deontological natural rights theory is, it turns out, quite controversial (even idiosyncratic, but more on that below), so the notion that the Constitution protects it—demonstrably, objectively, as a matter of fact—is still more controversial. To make Barnett’s justice‐oriented theory of constitutional legitimacy work, we have to know what is meant by justice—a contentious philosophical question. For a key feature of Barnett’s New Originalism is that premise that arriving at “the original public meaning of the [Constitution] is an empirical inquiry.” 3
So far, so good, yet we quickly find that this inquiry is doubtless more difficult than Barnett believes. It is a credit to his skills as an advocate and communicator that his case, filled with compelling excerpts from records of the relevant periods, is so persuasive on its face. The evidence, though, simply does not accomplish the feat that the New Originalists believe it does. Few, it must be admitted, would deny that the Framers belief in liberty and justice, in natural law and individual rights, was sincerely held. But people disagree strongly about what these abstract philosophical concepts mean and entail. The relevant question for the New Originalists, then, is whether the Framers believed in these things in the same way as does the contemporary libertarian movement; the answer to that question is obvious—no. The libertarian believes that almost everything the state does is neither legitimate nor proper, many of us arguing that even its policing functions and the law itself would be better furnished by the competitive private sector. 4 And while the originalist will gamely answer again that the subjective beliefs of the Framers simply don’t matter, the original public meaning of the text nevertheless can’t be what the New Originalist thinks it is because not only the Framers but most of the public, past and present, disagree with libertarians on the legal and political values implicated. Therein lies the fundamental problem: the hypothetical, reasonable reader of the words (Barnett’s standard) would disagree most emphatically with Barnett about their meaning, about the “abstract principle‐like injunctions” 5 they entail. A “reasonable speaker of English” in either the eighteenth century or today would most certainly not read the Constitution’s words the way that we libertarians do; our understanding of liberty, justice, and property is decidedly not the “conventional meaning that ordinarily attaches to these words” but is rather just the kind of “idiosyncratic meaning” against which Barnett argues. Whether we like it or not, as libertarians our philosophical commitments are highly heterodox when held up against those of the hypothetical reasonable person, for whom today’s American government and constitutional order are, for the most part, just and good.
So while it just may be worthwhile to search for the empirical fact of the Constitution’s original public meaning, it’s exceedingly difficult to imagine that we’ve found it in a legal philosophy so perfectly in tune with our libertarian priors. To this point—the difficulty of discovering the objective meaning of the words, supposing one exists—originalists enthusiastically debate the original meaning of the Constitution amongst each other. Perhaps the most famous originalist of them all, Justice Antonin Scalia, forcefully criticized the a natural law theory of constitutional interpretation, the notion that the Declaration ought to be understood as law, and the doctrine of substantive due process in general. Just as with any other theory of constitutional interpretation or construction, a judge can reach any result he wants using originalist thinking. Indeed, as originalism has grown sufficiently trendy, progressives, eager to make it their own, have begun to argue in earnest that in fact originalism offers a justification for their progressive political agenda. It is certainly no coincidence that every practitioner of originalism sees this interpretive method as supporting, as a matter of practice, his substantive beliefs about the kinds of things the state ought to do. Erwin Chemerinsky wrote insightfully when he observed in his 1987 book Interpreting the Constitution that “originalism inevitably is indeterminate,” leaving plenty of room for a given interpreter’s priors to leak into his analysis; this is evidently what’s going on with both the libertarians and progressives who have adopted originalism as their own.
Still another problem bedevils Barnett’s delicately crafted theoretical structure: even if we assume, arguendo, that an objective original meaning both exists and is ascertainable, we are still left with the normative question of whether we ought to heed this original meaning. Why not original intent, for example? The New Originalists have decided that the intentions of the document’s drafters matter not, that our proper project as readers of the Constitution is the search for its “original public meaning,” removed completely from inquiries as to original intent. But if we don’t care about the intent of the drafters (i.e., what was going on in their heads), then it certainly isn’t clear that we ought to care about their words. Barnett’s extensive work naturally provides an answer: the words were enacted into law, unlike the personal feelings, politics, and motivations of their drafters, an analysis of which would involve a hopeless counterfactual exercise. We should, therefore, take them at their word (or, better yet, their words, those in the Constitution), hewing to their high principles of liberty and justice, whether they did so or not. And this is all well and good, but the words themselves are old and outmoded, ill equipped to manage the political and social problems of the twenty‐first century. Judge Richard Posner (of the United States Court of Appeals for the Seventh Circuit) has frequently and honestly made just this point. At Loyola University School of Law’s 2015 Constitutional Law Colloquium (at which Barnett presented on Our Republican Constitution) Posner said, “I’m not particularly interested in the eighteenth century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the eighteenth century can guide our behavior today, because the people in the eighteenth century could not foresee any of the problems of the twenty‐first century.”
Confronted with Posner’s bold challenge, originalists like Barnett counter that we must care, the Constitution being the supreme law of the land. Just as the human body is the physician’s subject, so is the Constitution the judge’s, the lawyer’s, and the legal academic’s. Originalists often deploy such analogies to argue that libertarians should care deeply about what the Constitution says, but they seem to show show just the opposite; for the surgeon and the physicist would not readily rely on textbooks that contained mistakes about the nature of the human body or the heavenly bodies—or that were written hundreds of years ago in vague terminology by people who couldn’t possibly understand even the most basic premises of the field as it stands today. Moreover, if justice is the true goal anyway, we might just go straight toward it, rather than poring over a document that even the originalists concede is flawed, not perfectly aligned with our values as libertarians. To place positive law—even if it is the Constitution itself—prior to natural law in importance is to get the matter precisely backwards, particularly if your prime argument is that the Constitution is legitimate only insofar as it is consistent with justice and natural law. As philosopher Roderick Long observes in the Online Library of Liberty’s Liberty Matters, “a statutory law with the same content as what justice requires does not itself bind in conscience,” for in such a case the statute is not really doing anything; it remains justice in the abstract that is in fact binding the individual. Or, as Spooner similarly put it, if the “immutable, natural principle” of justice is “at all times, and in all places, the supreme law,” then “[l]awmakers, as they call themselves, can add nothing to it, nor take anything from it.” Thus are libertarian originalists either legal positivists, disdainful of natural law ideas, or strict adherents of natural law regardless of what the Constitution dictates, in which case their constitutional arguments end up looking more than a bit convenient. After all, if your Constitution invariably just happens to demand the natural law libertarian result in every case (or close), then the project you are in fact engaged in is not constitutional interpretation but philosophy. And really that’s just fine. Though in that case, originalism ends up being quite as Posner describes it, merely “a mask for deciding cases on ideological grounds, using history as a mirror.”
But perhaps one can decide according to his ideology—that is, aiming at a desired result—and still be a constitutionalist in good standing. If one sincerely believes that the Constitution ought to evolve with the society to which it applies, then there really is no reason to deny that he wants a particular result in a given case before the Supreme Court, quite without reference to complicated and contorted interpretive systems. Maybe Posner is right that “outcome should be the focus,” that judges would do well to dispense with the grandiosity and pretense that surround their job (emphasis in original). Judges should simply and honestly use the best available reasoning and evidence, from wherever they come, to arrive at good results, affected originalist poses be damned. What is so very wrong, one wonders, with admitting that courts ought to decide cases on the basis of “pragmatic, ethical, or if one will political values”? 6 Do we really prefer an internally contradictory and incoherent system that (supposedly by pure coincidence) makes the nation’s supreme law a bastion of radical libertarianism? As we have now seen, the entire project of interpretation no matter what is laden with normative judgments, inescapably immersed in the world of politics and philosophy.
The New Originalists never really explain why it is that Posner is wrong, why—if objectivity and libertarian results are really our goals (and don’t they admit as much?)—we shouldn’t look to, for example, empirical evidence rather than the antiquated and less than clear words of a late‐nineteenth century legal document. In principle, libertarians have no reason to prefer the constitutional text (rather than its spirit of justice) and perhaps even less reason to believe that the text is libertarian in our contemporary sense. Consider the constitutionality of statutes whose terms forbid abortion. Most of today’s libertarians are pro‐choice and would argue in favor of a woman’s legal right to terminate her pregnancy using a substantive due process theory, appealing to fundamental individual rights generally and the penumbral right of privacy in particular. But no less an originalist than Justice Scalia cogently (and repeatedly) argued that the Constitution—in its original public meaning—guarantees no such right to an abortion, the requirements of libertarian social philosophy notwithstanding. Rights of this kind, Scalia maintained, are rather to be determined through popular will, filtered through debate and adopted only if they could pass through the sieve of the democratic process. Justice Scalia, it turns out, believed that originalism would yield the Democratic Constitution Barnett opposes. So what if one happens to be convinced by Scalia’s theory of the Constitution yet nonetheless believes in an absolute, natural right to an abortion? Can a libertarian be an originalist of the Scalia sort? Something would have to give—such a libertarian originalist would be compelled to choose, in a given case, which result he preferred, the one demanded by his philosophical commitments or the one ostensibly required by the nation’s supreme law. The New Originalists either think this just can’t happen—the Constitution always wants the libertarian end product—or else assumedly adjure the judge to legislate from the bench. For his part, Posner suggests that this is what the Supreme Court (and, to a large extent, the federal courts of appeals) is actually doing anyway, which fact he describes as “the legislative role of the federal judiciary.”
Posner is right about something else, too: the Constitution is vague, cast in terms so broad and general as to leave room for an infinite number of political visions; one imagines that Senator Bernie Sanders regards his dreams of a socialist America as entirely consistent with the Constitution. For Americans, unmindful, reflexive veneration of the Constitution might as well be a holy sacrament; everyone must say he is a constitutionalist, just as everyone must pledge allegiance to the flag and sing the national anthem at ball games. But to further borrow religious language, libertarians cannot serve two masters. We ought to serve liberty and justice, and in cases where those apparently cannot be reconciled with an eighteenth century legal document, we must nevertheless choose them, the Constitution giving way and adapting to serve the needs of a free society. What’s more, if originalism is itself likewise vague and amorphous, susceptible to appropriation by every point along the political spectrum, then it does not actually aid us in bringing about the ultimate end, a free society or, as Benjamin Tucker put it, “the possession of liberty by libertarians.” Widespread respect for the natural rights that Barnett reveres depends on education in and acceptance of the principles of freedom, without which efforts at legal and political reform must fail. The ideas of liberty are the important thing, the condition precedent for a free society. For Barnett and the libertarian New Originalists, though, the Constitution’s words (well, their peculiar interpretation of them) seem to be bathed in a certain spellbinding, lambent glow, the document’s many flaws notwithstanding. Paradoxically, the libertarian originalists readily acknowledge many of these flaws, even while the legitimacy of the whole enterprise is said to rest on its fundamental agreement with natural law.
The strength of Our Republican Constitution is its remarkably clear and compelling case for a government that is limited strictly to protecting the individual in his life, liberty, and pursuit of happiness, an argument that necessarily rejects the destructive collectivist thinking that has dominated both the legal profession and popular political debate. In his introduction to the book, George Will observes that it explicitly places Barnett in the role of political philosopher, adding that “constitutional lawyers like Barnett are America’s practitioners of political philosophy.” This is also an accurate statement of the position of Posner and others, who see no need to avoid the truth that constitutional law just is normative philosophy and therefore no need to concoct elaborate pretexts of interpretative theory. Reading the constitutionalist Barnett of recent vintage is likely to make more radical libertarians miss the Barnett of The Structure of Liberty, who set forth bold arguments for a polycentric legal order. Yet that Barnett remains conspicuously present in Our Republican Constitution, if only somewhat obscured by the curious idea that the Constitution of the United States has something to do with a thoroughgoing—and, truth be told, rather extreme—libertarian theory of natural rights. Originalists like Barnett speak true enough when, resigned to reality, they argue that since the Constitution is, after all, what we have for better or worse inherited, we ought to at least try to improve it (meaning, make it more libertarian). With this, few libertarians could disagree. But we could accomplish this more straightforwardly by adopting the approach recommended by Posner. A form of living constitutionalism, then, seems to be the only worthwhile interpretive posture, which is to say, the only one ready to admit what everyone already knows to be true—that the Supreme Court really is a super‐legislature, performing an essentially political function. If it is the Constitution’s underlying spirit of justice that should guide us, as the New Originalists contend, then let us simply and forthrightly, without pretense, pursue just outcomes.
Indeed, in an interview with Nick Gillespie of Reason magazine, Barnett says that conservatives are “the direct target of the book,” as too many of them have “accepted, in some sense unthinkingly, [a] progressive or democratic vision of the Constitution.” ↩
Later, Lysander Spooner came to reject the Constitution as having “no inherent authority or obligation.” Spooner expert that he is, Barnett knows this and Spooner’s many other legal arguments as well as anyone alive; and his originalism is largely an attempt to save the Constitution from Spooner’s fatal (in the writer’s view) blows in The Constitution of No Authority, published a quarter century after The Unconstitutionality of Slavery. In his Restoring the Lost Constitution, Barnett discusses the “seed of doubt planted” by Spooner’s attack on the Constitution, which Barnett found “unanswerable” until his forties. ↩
Randy E. Barnett, “The Gravitational Force of Originalism” (2013). ↩
Barnett is himself is among the most notable advocates of what, in his book The Structure of Liberty, he calls a “polycentric constitutional order,” a stateless system of law and order in which private, free market actors provide police protection, courts, and the law itself. ↩
Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Revised Edition 2014), page 96. ↩
Richard Posner, “What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part II,” Green Bag (2016). ↩