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CATO SUPREME COURT REVIEW 2008-2009
By Ilya Shapiro
Cato InstituteCopyright © 2009 Cato Institute
All right reserved.
Chapter OneIs the Constitution Libertarian? Randy E. Barnett
I am honored to be delivering the Seventh Annual B. Kenneth Simon Lecture. I have been philosophically close to the Cato Institute since its founding. And one of the fringe benefits of moving to the Georgetown University Law Center is that now I am physically close to Cato as well. As a public policy shop, the work of Cato touched only tangentially on my own scholarship. But ever since the establishment of its Center for Constitutional Studies, under the extraordinary leadership of my old friend Roger Pilon, I have enjoyed a much closer relationship to Cato than ever before. That I might be invited to deliver the prestigious Simon Lecture is, for me, a wonderful validation of a beautiful friendship.
In this lecture, I want to address a topic that goes to to the heart of the mission of the Cato Institute and its Center for Constitutional Studies: Is the Constitution libertarian?
Libertarians and the Constitution: A Love-Hate Relationship
Truth be told, libertarians have a love-hate relationship with the Constitution. On the one hand libertarians, like most Americans, revere the Constitution. Libertarians particularly appreciate its express guarantees of individual liberty and its mechanisms topreserve limited government. If being American is to subscribe to a creed, then the Constitution and the Declaration of Independence that gave rise to it are the foundational statements of this creed. It is no coincidence, then, that the Cato Institute is famous for distributing millions of copies of its little red books containing the Declaration and Constitution so that the public, both here and abroad, might read and appreciate the actual words of these singular texts.
But some libertarians have issues with the Constitution as well. And here I speak for myself, as well as others. There was a reason I eschewed writing about and teaching constitutional law when I became a law professor in favor of teaching contracts. After taking constitutional law in law school, I considered the Constitution an experiment in limiting the powers of government that, however noble, had largely failed. Every time we got to one of the "good parts" of the text, we then read a Supreme Court opinion that explained why it did not really mean what it appeared to mean.
Nor was only one branch of the government to blame. The judicial passivism of the Supreme Court has combined with activism by both Congress and presidents to produce the behemoth federal and state governments that seem to render the actual Constitution a mere relic, rather than the governing document it purports to be. This fundamental failure of the Constitution to limit the size and scope of government has even led some libertarians to contend that the enactment of the Constitution represented a coup d'état by big government Federalists against the more preferable regime defined by the Articles of Confederation and favored by the Anti-Federalists.
Yet libertarians are genuinely torn-one might go so far as to say schizophrenic-about how the Constitution has actually worked out. Big and intrusive as government is today, it could be much worse. Few can point to other countries where individuals are freer in practice than in the United States. Many libertarians might be willing to move there, if such a place existed; yet no such exodus has occurred. And, in important respects, life as an American feels freer than it once did. We seem to have more choices than ever before and are freer to live the sorts of lives we wish. Libertarians still refer to the United States as a "free country," maybe still the freest on earth, even as the Cato Institute documents the many ways in which our freedoms are unnecessarily restricted. That the Constitution deserves at least some of the credit for this freedom seems likely.
So is the Constitution libertarian or not? It turns out that this is not an easy question to answer.
What I Mean by "Libertarian"
For one thing, we need to settle on what is meant by "libertarian." The most obvious meaning of "libertarian" is a belief in or commitment to individual liberty. In my experience, the world is divided between Lockeans and Hobbesians: between those for whom individual liberty is their first principle of social ordering, and those who give priority to the need for government power to provide social order and pursue social ends. Yet most Americans, like Locke himself, harbor a belief in both individual liberty and the need for government power to accomplish some ends they believe are important.
However, a general sympathy for individual liberty shared by most Americans should be distinguished from the modern political philosophy known as "libertarianism." A libertarian, in this sense, favors the rigorous protection of certain individual rights that define the space within which people are free to choose how to act. These fundamental rights consist of (1) the right of private property, which includes the property one has in one's own person; (2) the right of freedom of contract by which rights are transferred by one person to another; (3) the right of first possession, by which property comes to be owned from an unowned state; (4) the right to defend oneself and others when fundamental rights are being threatened; and (5) the right to restitution or compensation from those who violate another's fundamental rights.
If modern libertarianism is defined by the commitment to these rights, it is not defined by the justifications for this commitment. Some libertarians are consequentialists, others are deontologists, while still others adopt a compatablist approach that straddles the line between moral and consequentialist justifications. It is useful to emphasize that libertarianism is not a moral philosophy; it is a political philosophy that rests upon certain moral conclusions that can be supported in a variety of ways.
Modern libertarianism can be viewed as a subset of classical liberalism, in the following way: All classical liberals believe in respecting and protecting these five rights, which distinguishes classical liberals from others who would deny some or all of these rights. Yet some classical liberals might add other rights to this list-such as an enforceable right to some minimum level of material support-or might sometimes favor limiting the scope of these fundamental rights to achieve other important social objectives.
In contrast, modern libertarians are distinctive for their tendency to limit the set of fundamental rights to these five, and their reluctance ever to restrict the exercise of these rights to achieve other worthy objectives. They view these rights as "side-constraints" on the pursuit of any personal and collective ends. Their working thesis is that all genuinely desirable social objectives can be achieved while respecting these rights-the more rigorously, the better. Hereafter, I will consider the degree to which the Constitution is "libertarian" insofar as it respects and protects the fundamental rights to which modern libertarians and classical liberals generally adhere.
Holmes's Denial that the Constitution Is Libertarian
Now for some, asking whether the Constitution is libertarian in either the classical liberal or modern sense may seem completely inappropriate. In one of the most famous lines in any Supreme Court opinion, Justice Oliver Wendell Holmes Jr., in his dissent in the 1905 case of Lochner v. New York, proclaimed that "[t]he Constitution does not enact Mr. Herbert Spencer's Social Statics." Because modern academics know so little about Spencer, and what they think they know is a distortion, Holmes's exact meaning here is not always appreciated. Holmes was not rejecting the so-called social Darwinism that has been falsely associated with Spencer. Indeed, Holmes was himself a social Darwinist, as were most political progressives of his day.
No, Holmes was referring to Spencer's "law of equal freedom," the principle made so famous by Spencer that Holmes could be confident that his readers would not miss his reference. In Social Statics, Spencer affirmed "that every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty to every other man." Or, in another formulation, each "has freedom to do all that he wills provided that he infringes not the equal freedom of any other." That this was Holmes's target was made clear just before his reference to Spencer when he referred to: "The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same," which Holmes dismissed as "a shibboleth for some well-known writers."
Holmes took on Spencer in this way because the majority opinion in Lochner came as close as the Supreme Court ever has to protecting a general right to liberty under the Fourteenth Amendment. In his opinion for the Court, Justice Rufus Peckham affirmed that the Constitution protected "the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family." For this reason, ever since law school, Peckham's opinion in Lochner has been my favorite majority opinion in any Supreme Court case. (Justice Scalia's opinion in District of Columbia v. Heller has recently become number two!)
Holmes's pithy dissent offered two influential arguments against recognizing a general constitutional right to liberty. First, he claimed that Supreme Court precedents were inconsistent with a general right to liberty. A citizen's liberty, he wrote, "is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not." And any constitutional right to freedom of contract was belied by previous decisions upholding vaccination laws and maximum hours laws for miners, and prohibitions on "combinations" and the sale of stock on margins or for future delivery.
Second, apart from precedent, Holmes offered a claim about the Constitution's meaning. "[A] Constitution is not intended to embody a particular economic theory," he contended, "whether of paternalism and the organic relation of the citizen to the State or of laissez faire." Rather, in Holmes's view, the Constitution "is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."
Both of these objections to a constitutional right to liberty have become deeply embedded in constitutional discourse. For example, the first of Holmes's arguments was echoed by Ronald Dworkin in his book Taking Rights Seriously. Dworkin denied there was a general right to liberty on the ground that no one has a "political right to drive up Lexington Avenue" (which is a one-way street running downtown, not uptown). Holmes's second argument was echoed by John Rawls in Political Liberalism, when Rawls contended that, because of "the fact of reasonable pluralism," a constitution was best conceived as a second-order process for handling political disagreement in a pluralist society rather than dictating a first-order answer to political disagreements.
Yet neither objection is compelling. Holmes contended that previous decisions accepting restrictions on liberty refute the existence of a constitutional right to liberty, but this does not follow. For one thing, prior decisions may have been mistaken to uphold these restrictions on liberty. Even if correct, however, such decisions do not refute the existence of a right to liberty. Instead, they could simply be "exceptions." An exception presupposes the existence of a general rule (to which it is the exception).
Law professors have long derided what they call "slippery slope" arguments. This is an objection to a particular law or ruling because it makes more likely an even more objectionable law or ruling in the future. Once you take a single step on a slippery slope, you are likely to slide all the way down. Restricting liberty in one case is likely to lead to other restrictions down the road. Law professors respond that the law makes distinctions all the time and each decision should be made on its own merits. If you don't want to go farther in a future situation, then that is the time to make one's objection.
The wide acceptance of Holmes's use of exceptions to deny the existence of a rule, however, supports skepticism about the feasibility of making exceptions in a common-law system in which any exception is thereafter transformed into a precedent for more of the same. Assuming the Constitution really does protect a general right to liberty, as the majority in Lochner appear to have believed, perhaps it was a mistake to recognize any of the exceptions on which Holmes rested his argument. On the other hand, how can the existence of all these approved constraints on liberty be consistent with a general right of liberty? Perhaps Holmes is correct that the existence of so-called exceptions is evidence that the purported rule is unsound. At a minimum, they would seem to be precedent for upholding further restrictions on liberty.
Holmes's argument assumes that a constitutional right to liberty must be absolute to be a right. If, however, a right to liberty is viewed as presumptive rather than absolute, then the existence of "exceptions" is not a bug, it is a feature. Take, for example, the freedom of speech. In practice, this right is presumptive rather than absolute. No one thinks that the constitutionality of "time, place, and manner" regulations of speech refutes the existence of the right. Holmes himself repeatedly asserted a general right to freedom of speech, notwithstanding his opinion that no one has a right to falsely shout fire in a crowded theater. That freedom of speech is a constitutional right places the burden on the government to justify its restriction as necessary and proper. It may not burden speech merely because it thinks it is a nifty idea. A court must pass upon its necessity.
Likewise, if a general right to liberty is conceived as a "presumption of liberty," this does not automatically render all restrictions on actions unconstitutional. It merely means that, as with speech, any restriction on other types of conduct must be justified. The type of justification will vary depending on whether a law is a prohibition of wrongful conduct or a regulation of rightful conduct.
Prohibiting wrongful conduct is perfectly consistent with a right to liberty. By "wrongful," I mean conduct that violates the rights of others. As Spencer's law of equal freedom maintains, no one has the rightful liberty to violate the equal rights of others. The prohibition of wrongful acts constitutes a protection of the rightful liberty of others, rather than an infringement on the liberty of the wrongdoer. One has no right to do wrong to another.
Nor are all legal regulations of rightful conduct inconsistent with a general right to liberty. A "regulation" is a law that specifies how a liberty may be exercised. It takes the form, "If you want to do X-make a contract, carry a gun, drive a car-then here is how you do it." Legal regulations are consistent with liberty because the fundamental rights that define liberty are too abstract to be applied directly to all but the simplest of cases. For example, what constitutes a sufficient provocation to justify self-defense? What constitutes consent to a contract? How do we measure damages for breaches of contracts or torts? Rules of law are needed to answer these and countless other such questions. As Locke observed, in the state of nature: "There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them...."
Excerpted from CATO SUPREME COURT REVIEW 2008-2009 by Ilya Shapiro Copyright © 2009 by Cato Institute. Excerpted by permission.
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