an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Last week, Libertarian Vice-Presidential candidate Bill Weld created a small stir among committed libertarians by saying that a Johnson-Weld administration would want to appoint Supreme Court Justices in the mold of Stephen Breyer and Merrick Garland. The stir was understandable. Justice Breyer is, after all, probably the least libertarian member of the current Court, and Judge Garland shows no signs of harboring a libertarian constitutional vision either.
What I wish to call attention to is the juxtaposition between the negative reactions that libertarians understandably voiced to Weld's comment and the complete absence of negative reactions to another comment about Supreme Court Justices made in the same interview--a comment that the person at the top of the ticket made just before Weld named Breyer and Garland.
The reporter conducting the interview asked first Johnson, and only then Weld, about potential Supreme Court nominees. (Johnson's the one running for President, after all.) Johnson named no names, and he didn't give an in-depth answer. But he did say that he'd want to appoint Justices who heeded the Constitution's original meaning. To be precise, he said he'd want "people that look at the Constitution of original intent." (The interview is here: http://reason.com/archives/2016/07/25/libertarians-pitch-trump-hillary-bernie/3)
To my knowledge, the world of libertarian commentators had no negative reaction to this comment by Johnson. Nor would one expect it to.
But if the reason why the idea of an originalist Supreme Court sets off no alarm bells among libertarians is that libertarians think the Founders understood the Constitution as a charter of libertarian ideals in the way that twenty-first century libertarians understand those ideals, then those twenty-first century libertarians are laboring under a distorted understanding of the eighteenth century. Yes, the Founders believed in limited government and individual liberty, and crucially so, and at a high level of abstraction those are ideals shared by modern libertarians. But they're also ideals shared, at that level of abstraction, by most non-libertarians in American politics today. And there's no reason to think that the Founders as a group understood those ideas in the particular ways that distinguish modern libertarians from most other Americans.
The point here isn't that the Founders were utilitarians, or Keynesians, or adherents to any of the other twentieth and twenty-first century ideologies that have competed with libertarianism in our lifetimes. It would be a mistake to think that the Constitution as originally understood ordained any of those theories. But it would also be a serious distortion of history to think of the Founders' Constitution as distinctly libertarian.
Like many other modern Americans, many libertarians have been reasonably successful at believing that the Founders shared their own particular values, even when the historical record wouldn't support that claim if considered sensitively. Some of the ways in which libertarians manage this feat are particularly impressive. Here are two: (1) George Mason, who at the Constitutional Convention argued that the federal government should be given the power to enact sumptuary laws (i.e., laws regulating private consumption in order to repress luxury, extravagance, etc.), is somehow remembered today in certain quarters as a particularly strong libertarian. (2) The creation of the Constitution is itself taken as an achievement in the cause of limiting government, even though the whole project of creating the Constitution in 1787 was to create a more powerful government, not a less powerful one.
It's true, of course, that constitutional law today is less libertarian than it has been at some times in the past. But the high-water mark of constitutional libertarianism came at the dawn of the twentieth century, not the waning of eighteenth. If Gary Johnson had said "I'd want Justices who applied the jurisprudence we associate with Lochner v. New York, decided in 1905, whether or not that jurisprudence corresponds to the ideas of the Founders of 1787," he'd have been on good ground. But that isn't what he said, and I don't expect to hear him say it, either.
So far I've been discussing what I take to be a straightforwardly likely possibility -- that Johnson endorses constitutional originalism on the mistaken understanding that the Founders shared his libertarian values, and that libertarians in his audience approved of the remark because they share the mistaken understanding. But it's worth canvassing two other possibilities.
One is the point for libertarians of originalism isn't that libertarians think the Founders were libertarians; it's that originalism conduces to the rule of law, and the rule of law is in turn conducive to liberty as libertarians understand liberty. The trouble with this theory, though, is that it makes sense only if originalism really could deliver the rule-of-law benefits that this theory claims for it, and I don't think it can. After all, the reason why originalism is supposed to be good at delivering those benefits is that it is supposed to create a shared objective meaning for the law, one rooted in something external to the intuitions or worldviews of the people who happen to be the decisionmakers. But originalism in practice delivers enormous indeterminacy in the law. As I recently wrote here,
...people with different political values read those values onto the Founders, and the promise of objectivity is largely illusory. We all see the Founders differently, because we all see ourselves in them. Indeed, part of why so many of us can love the Founders is precisely that we all see them in slightly different lights.
The other possibility, which would be a hard position for a candidate to endorse, is that Johnson would like to appoint originalist Justices who would also have libertarian politics because he knows (a) that Justices with libertarian values will likely read Founding sources to support libertarianism, whether or not dispassionate historians will read them that way, and (b) it's rhetorically more powerful in constitutional law to claim the sanction of the Founders for your arguments than not to. In other words, he'd want libertarian Justices, and within the world of libertarians he'd want originalists, because they're the libertarians most likely to deploy -- self-consciously or otherwise -- some of the most potent rhetoric in constitutional law, namely the claim that their values are the values of the Founders rather than just their own.
I suspect, however, that none of those more complex things is going on. Johnson endorses originalism, which is a normal thing to do in libertarian circles, and the audience simply assumes that that's the right position. In which case there turns out to be a deep similarity between Johnson's comment (which sailed merrily by) and Weld's (which provoked outrage). It's this: both comments are really just shorthand communications to particular political constituencies, and they operate at the level of atmospherics. When Weld says he'd like Justices like Breyer and Garland, he isn't actually saying anything about the jurisprudence of those people, about which his audience knows little. He just means to be conveying the idea that he respects moderation and technical competence, because that's what those names stand for within the relevant discourse. So in trying to signal that a vote for Johnson-Weld is a vote for sane and competent moderation, he names Breyer and Garland. Similarly, Johnson nods to originalism, not because originalism is a particularly good jurisprudence for libertarianism but because speaking approvingly of originalism is a way of saying "I am one of you" to a certain set of political constituencies -- constituencies that mostly differ from the ones to which Weld was trying to appeal, but constituencies to which Johnson does want to appeal.
If Hillary Clinton is elected, Gary Johnson will be happier ten years from now if she appoints Breyer-style Justices than if she appoints originalists. More Breyer-style Justices would bring moderate incrementalism, and if Johnson didn't like their decisions, they at least wouldn't be moving the ball so much. Clinton-appointed originalists would do what Johnson-appointed originalists would do--that is, imagine the Founders in light of their own political values--and that would likely move the law farther and faster, and not in the way that the people Johnson was speaking to are hoping for.