Cato Supreme Court Review, 2008-2009

Introduction

Ilya Shapiro*

This is the eighth volume of the Cato Supreme Court Review, the nation’s first in-depth critique of the Supreme Court term just ended. We release this journal every year on September 17, Constitution Day, about two and a half months after the previous term concludes and two weeks before the next one begins (though this year we will already have had the Citizens United campaign finance case reargument in early September). We are proud of the speed with which we publish this tome—authors of articles about the last-decided cases have little more than a month to provide us full drafts—and of its accessibility, at least insofar as the Court’s opinions allow for that. This is not a typical law review, after all, whose prolix submissions use more space for obscure footnotes than for article text. Instead, this is a book about law intended for everyone from lawyers and judges to educated laymen and interested citizens.

And we are happy to confess our biases: We approach our subject matter from a classical Madisonian perspective, with a focus on individual liberty, property rights, and federalism, and a vision of a government of delegated, enumerated, and thus limited powers. We also try to maintain a strict separation of politics (or policy) and law; just because something is good policy doesn’t mean it’s legal, and vice versa. Similarly, certain decisions must necessarily be left to the political process: We aim to be governed by laws, not lawyers, so just as a good lawyer will present all plausibly legal options to his client, a good public official will recognize that the ultimate buck stops with him.

Having said that, let’s take a quick survey of the term that was. October Term 2008 produced more divisions but fewer headlines than the previous term. Of the 79 cases with opinions after argument, 23 went 5-4 (29.1 percent, up from 20 percent last year) and 26 had no dissenters (32.9 percent, up from 30 percent last year but down significantly from previous years). More interestingly, the total number of dissenting votes across all cases was notably high, with an average decision producing 2.04 justices in dissent, up from an average of 1.66 over the preceding 10 years. Justice Anthony Kennedy regained his usual status as the justice most often in the majority (92.4 percent of cases and 16 of 23 5-4 decisions), while Justice John Paul Stevens was most likely to dissent (35.4 percent of cases and an incredible 52.8 percent in cases that had dissenters). Chief Justice John Roberts and Justice Samuel Alito were the justices most likely to agree, voting the same way at least in part in 73 of 79 cases (92 percent, followed by six different pairings at 86-87 percent), while Justices Stevens and Clarence Thomas voted together in only 36 cases (46 percent).¹

Looking beyond the statistics, this was of course the final term for Justice David Souter. Souter did not write any notable opinions, but buried in his dissent in District Attorney’s Office v. Osborne was a meditation on the wisdom of judicial minimalism—or incrementalism—regarding the recognition of new rights in light of changes in societal understandings of the fundamental reasonableness of government actions.² Some have suggested that this passage reflects the retiring justice’s views on gay marriage,³ but more broadly it was a sort of valedictory address on the nature of the judicial process.

Replacing Souter, of course, will be Justice Sonia Sotomayor, late of the Second Circuit Court of Appeals. While her confirmation was never in any serious doubt, Sotomayor faced strong criticism from legal analysts and Republican senators on issues ranging from property rights and the use of foreign law in constitutional interpretation to Ricci v. DeStefano—noted below is our article on the case—and the wise Latina speeches that led people to question her commitment to judicial objectivity.⁴ Only time will tell what kind of a justice Sotomayor will be now that she is unfettered from higher court precedent.

Turning to the Review, we begin, as always, with the previous year’s B. Kenneth Simon Lecture in Constitutional Thought, which in 2008 was delivered by Professor Randy Barnett of the Georgetown University Law Center. Prof. Barnett poses the provocative question—evoking Justice Oliver Wendell Holmes’s infamous Lochner dissent—Is the Constitution Libertarian? Barnett confronts Holmes’s dismissal of Herbert Spencer’s law of equal freedom— which affirmed that each man has freedom to do all that he wills provided that he infringes not the equal freedom of any other—and finds that the Constitution may be the most explicitly libertarian governing document ever actually enacted into law. While we have lost much of that libertarian understanding, we can regain it if we elect presidents who will appoint and senators who will confirm judges who interpret the Constitution properly—giving effect to its original public meaning, applying a presumption of liberty, and construing vague terms in a way that enhances constitutional legitimacy.

We move then to the 2008 Term, beginning with provocative essays on the big civil rights cases of the year. Roger Clegg, president of the Center for Equal Opportunity, tackles Bartlett v. Strickland and NAMUDNO v. Holder, which challenged sections 2 and 5, respectively, of the Voting Rights Act. He discusses Section 2’s internal contradictions—prohibiting racially disparate treatment but requiring racial gerrymandering—and Section 5’s violation of federalism, questioning their continuing constitutionality. Notably, the NAMUDNO decision avoided the constitutional questions at the heart of our voting rights regime, an unsatisfying result that Clegg laments. He concludes, The Act should be refocused on fulfilling— not undermining—the Fifteenth Amendment’s purpose: ensuring that the right to vote is not denied or abridged on account of race.

Ken Marcus of the City University of New York’s Baruch College School of Public Affairs writes on Ricci v. DeStefano, the New Haven firefighters’ case that figured so prominently in Justice Sotomayor’s confirmation hearings. Ricci exposed the long-simmering tension between the disparate impact provisions of Title VII of the Civil Rights Act and the Fourteenth Amendment’s Equal Protection Clause—which Justice Scalia pointed out in his concurrence. Disparate impact is constitutionally dubious, Marcus argues, because it is sometimes used to level racial disparities that do not arise from intentional or unconscious discrimination, a purpose for which the Equal Protection Clause does not permit state actors to take race-conscious actions. The Court will surely revisit this issue, and Congress may be forced to act.

Roger Pilon—director of Cato’s Center for Constitutional Studies—dives into the biggest business case of the year, Wyeth v. Levine, where the Court had to decide whether a pharmaceutical company that satisfied the FDA’s labeling requirements could nevertheless be held liable under state law for the harm that followed when a physician’s assistant ignored the label’s warnings. It’s a tricky issue, not least because normally libertarians and conservatives support limited federal power and the role of states as laboratories of democracy. Yet here it is the reverse, with (modern) liberals arguing that state law is the ultimate guarantor of individual rights. Pilon argues that if the text of a constitutionally authorized statute or regulation implies the purposes or objectives of the measure … and a state law conflicts with the administrative execution of those purposes or objectives … then the effect of the Supremacy Clause is clear: the state law must yield.

Next, the University of Michigan’s Dan Crane provides a page-turning look at the state of antitrust law—you read that right— through the lens of this term’s price-squeeze case, Pacific Bell v. link-Line. It turns out that this spring’s announcement of a change in policy on monopolization offenses by Christine Varney, the new Antitrust Division head at the Department of Justice, renewed a rift between the Chicago and Harvard Schools of antitrust. And as re-regulation comes to the political fore, the Court’s antitrust jurisprudence may come under attack. Only a deliberate and patient strategy that addresses the two schools’ institutionalist concerns, Crane explains, stands a chance of advancing the new administration’s ambitious agenda.

We then have two articles on the term’s Fourth Amendment cases. Herring v. United States asked whether evidence should be excluded when it is found as a result of a search based on a warrant that was erroneously listed in a police database. Arizona v. Gant explored the power to search incident to arrest in a case where police searched an arrestee’s car after its owner had been secured in the back of a patrol car. Arizona v. Johnson probed the scope of the stop and frisk doctrine in the context of a patdown of a car’s passenger by an officer who believed him to be armed and dangerous but had no reasonable grounds to believe he committed a crime. Pearson v. Callahan presented the Court with a police entry into a home based on consent given to an undercover informant. And Safford v. Redding, which got the most headlines, inquired into school officials’ liability for strip-searching a middle school student. Law professors Erik Luna and Michael O’Neill give their nuanced takes on where the Court is going in this vital area.

Luna, of Washington and Lee, criticizes the Court’s Herring decision as continuing the movement toward constitutional rights without remedies, allowing law enforcement to infringe upon an individual’s Fourth Amendment rights and then present the fruits of that violation against him at trial. He supports Gant’s result but notes his agreement with the dissent in that case regarding the Court’s disingenuousness in its treatment of precedent. More broadly, Luna identifies a sort of doctrinal creep-and-crawl in constitutional criminal procedure, eroding our civil liberties as citizens place greater demands on law enforcement.

O’Neill, of George Mason, surveys the two big battlegrounds in Fourth Amendment jurisprudence: the warrant requirement and the exclusionary rule. He gleans several interesting insights from how each justice—including the newly arrived Sotomayor—will vote in these cases but also expresses frustration at a lack of judicial clarity about the meaning of (un)reasonableness. O’Neill ultimately suggests that Congress consider providing greater privacy protections for individuals and better guidance for law enforcement.

Mark Chenoweth of the Pacific Research Institute similarly surveys the Court’s Sixth Amendment jurisprudence, focusing on Oregon v. Ice and Melendez-Diaz v. Massachusetts. Ice queried whether a sentencing judge may find facts apart from the jury verdict to determine whether a defendant will serve consecutive or concurrent sentences. Melendez-Diaz considered whether a defendant has the right to demand the live testimony of a lab technician when the prosecution wants to present forensic evidence. The latter-stage Rehnquist Court decisions in Apprendi v. New Jersey and Crawford v. Washington threw this area of law into a flux, but Chenoweth helps make sense of the current state of play.

Switching to the First Amendment, University of South Dakota law professor Patrick Garry examines the quixotic Pleasant Grove City v. Summum. Does a city displaying a privately donated Ten Commandments monument in a public park have to also display the monument an obscure religious sect wants to donate? Curiously, the Court refrained from addressing the obvious Establishment Clause issue here—the government endorsement of one religion’s symbol over another’s—and ruled for the city because the Free Speech Clause doesn’t apply to government speech. Garry delves into those Establishment Clause implications, however, arguing that this sort of monument refusal may well violate the doctrine of nonpreferentialism.

Communications and media law guru Robert Corn-Revere, also a Cato adjunct scholar, contributes a piece on yet another case where the Court declined to address the more interesting constitutional issue: FCC v. Fox. Here the Court reviewed the FCC’s policies regarding broadcast indecency for the first time in 30 years. It ended up affirming the agency’s new ban on fleeting expletives—following several celebrated incidents where, for example, Cher told us what she thought of her critics and Nicole Richie explained how difficult it was to get manure out of a designer purse—on administrative law grounds. Corn-Revere predicts that the Court will not long avoid the inherent First Amendment issues—representing CBS, he may know something about this—and sketches the parameters of that future litigation.

In a fascinating confluence of the First and Fourteenth Amendments—political speech and the right to unbiased judges—Center for Competitive Politics co-founders Steve Hoersting and Brad Smith (also former FEC chairman) cover Caperton v. Massey Coal. In this case, Massey Coal’s CEO spent three million dollars to unseat a state supreme court justice unfriendly to the company’s interests— without coordinating with his preferred candidate’s campaign— which his legal adversary later claimed required judicial recusal under the Due Process Clause. Hoersting and Smith contend that Caperton typifies the old maxim that hard cases make bad law, with the Court here creating a new, largely unworkable standard for recusals and then constitutionalizing it. Interestingly, the Court’s decision on whether to overrule Austin v. Michigan and a related portion of McConnell v. FEC—via the reargued Citizens United v. FEC—will control Caperton’s broader ramifications on independent political speech.

At this point we normally would’ve had an article on Citizens United itself, the case about the regulation of Hillary: The Movie as electioneering communication under McCain-Feingold. The Court chose to hold the case over, however, and ask for briefing and rearguement relating to the regulation of corporate and union speech generally. This is a positive development for the First Amendment, we hope—but alas we’ll have to wait till next year for an analysis in these pages.

In any event, this volume concludes with a look ahead to October Term 2009—and what we can expect from Justice Sotomayor—by Jan Crawford Greenburg, ABC News legal correspondent and author of the best recent history of the modern court.⁵ Continuing its trend from this past term, the Court has further front-loaded its caseload— with 46 arguments on its docket before the term has even started. Fortunately, unlike last year, we should see many blockbuster constitutional cases, including: First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty; an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights; federalism concerns over legislation regarding civil commitment of sexually dangerous persons; a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley; and judicial takings of beachfront property. Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.

*     *     *

This is the second volume of the Cato Supreme Court Review that I have edited. While the learning curve was steeper last year, the amount of work has not decreased—and so I have many people to thank for their contributions to this endeavor. I first need to thank our authors, without whom there would obviously not be anything to edit or read. My gratitude also goes to my colleagues at Cato’s Center for Constitutional Studies, Bob Levy and Tim Lynch, who continue to provide valuable counsel in areas of law with which I’m less than familiar. A big thanks to research assistant Jonathan Blanks for making the trains run on time and keeping me honest, as well as to legal associate Travis Cushman and interns Matthew Aichele, Christian Brockman, Will Hild, and Jeff Widmayer, for doing the more thankless (except here) tasks. Neither the Review nor our Constitution Day conference would be the successes they are without them. Finally, thanks to Roger Pilon, the founder and éminence not-so-grise of this now well-established journal, without whom I would now be fretting about my role in the new legal economy.

I reiterate our hope that this collection of essays will deepen and promote the Madisonian first principles of our Constitution, giving renewed voice to the Framers’ fervent wish that we have a government of laws and not of men. In so doing, we hope also to do justice to a rich legal tradition—now eclipsed by the modern regulatory state—in which judges, politicians, and ordinary citizens alike understood that the Constitution reflects and protects the natural rights of life, liberty, and property, and serves as a bulwark against the abuse of state power. In this uncertain time of bailout, stimulus, public options, and general government overreach, it is more important than ever to remember our humble roots in the Enlightenment tradition.

We hope you enjoy this eighth volume of the Cato Supreme Court Review.

Notes

¹ All statistics taken from SCOTUSblog, Summary Memo and Super Stack Pack (Updated), June 30, 2009, available at www.scotusblog.com/wp/end-of-term-super-stat-pack/.

² District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S, 129 S. Ct. 2308, 2341 (2009) (Souter, J., dissenting).

³ See, e.g., Walter Dellinger, Souter: A Last Lecture on Gay Marriage?, Slate, June 29, 2009, available at www.slate.com/id/2220927/entry/2221719

⁴ This editor was one of the critics. See, e.g., Ilya Shapiro, The Sotomayor Vote, Washington Times, August 7, 2009, available at http://www.washingtontimes.com/news/2009/aug/07/all-americans-should-take-pride-in-seeing-our-firs; Ilya Shapiro, Sotomayor Doesn’t Deserve a Supreme Court Seat, Cato@Liberty, July 22, 2009, available at http://www.cato-at-liberty.org/2009/07/22/sotomayor-doesnt-deserve-a-supreme-court-seat; Ilya Shapiro, Five Questions for Sotomayor, Christian Science Monitor, June 9, 2009, http://www.csmonitor.com/2009/0609/p09s01-coop.html; Ilya Shapiro, Sotomayor Pick Not Based on Merit, CNN.com, May 27, 2009, available at http://www.cnn.com/2009/POLITICS/05/27/shapiro.scotus.identity/index.html.

⁵ Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (2007).

Is 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 to preserve 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’éetat 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.¹

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.²

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-constraints3 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,⁴ proclaimed that "[t]he Constitution does not enact Mr. Herbert Spencer’s Social Statics."⁵ 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.⁶ Or, in another formulation, each has freedom to do all that he wills provided that he infringes not the equal freedom of any other.⁷ 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.⁸

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.⁹ 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. Heller¹⁰ 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.¹¹ 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.¹² 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."¹³

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.¹⁴ 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).15 Holmes’s second argument was echoed by John Rawls in Political Liberalism, when Rawls contended that, because of the fact of reasonable pluralism,¹⁶ 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.¹⁷ 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.¹⁸ 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,¹⁹ 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.²⁰ 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.…²¹

Whether a particular regulation is consistent with liberty depends on the justification offered on its behalf. Regulations are not inimical to liberty if they coordinate individual conduct as do, for example, traffic regulations mandating driving on one side of the street or the other. They may also be consistent with liberty if they prevent irreparable tortious accidents before they occur, as speed limits do. True, you could sue someone for negligently driving too fast after he crashes into you, but given the bodily harm caused by an accident, it might be better to reduce incidents of negligence by specifying in advance how fast one should drive on a particular stretch of road. Although many libertarians object to government ownership of highways, no libertarian objects in principle to a highway owner regulating its use to enhance the speed and safety of driving. Similarly, contract law is a body of rules regulating the making and enforcing of agreements, and libertarians are not opposed to contract law.

For libertarians, the issue is often not whether conduct should be regulated but who should regulate, the government or property owners? Property owners typically have greater incentives for more efficient regulations than government. And, even where this is not the case, the fact that governments typically exert ownership powers over all the streets, sidewalks, and parks in a given territory makes their regulatory powers far more susceptible to abuse.

A law restricting conduct is consistent with a right to liberty, therefore, if it is prohibiting wrongful acts that violate the rights of others or regulating rightful acts in such a way as to coordinate conduct or prevent the violation of rights that might accidentally occur. A law is inconsistent with liberty if it is either prohibiting rightful acts, or regulating unnecessarily or improperly. A regulation is improper when it imposes an undue burden on rightful conduct, or when its justification is merely a pretext for restricting a liberty of which others disapprove. And one way of identifying a regulation as pretextual is to assess whether the regulatory means it employs do not effectively fit its purported health and safety ends.

Here is how the majority in Lochner distinguished a constitutional exercise of the police power from an unconstitutional restraint on liberty:

In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference with 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?²²

We may conclude from all this that, if a general right to liberty is presumptive, not absolute, and if the presumption may be rebutted by a showing that a law is prohibiting wrongful or properly regulating rightful acts, then the fact that regulations of liberty have been upheld as constitutional is no evidence that the general constitutional right to liberty does not exist. It may merely be a sign that the government has met its properly defined burden of proof.

But does the Constitution protect a general right to liberty of this type? This brings us to the second of Holmes’s objections: that the Constitution does not "embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire,"²³ or the modern version of this argument that the Constitution establishes second-order decision mechanisms by which first-order political disagreements are hashed out. In Lochner, who was right about the Constitution, the majority or Holmes? The answer depends on what the Constitution means, and to figure this out requires a method of constitutional interpretation.

Originalism and Liberty

As a political philosophy, libertarianism does not specify how the Constitution should be interpreted. Should a libertarian simply favor any interpretation of the text that enhances liberty? I think not. The Constitution is the law that governs those who govern us. That those who govern may be restrained in the exercise of their power, it was put in writing. As John Marshall explained in Marbury v. Madison, the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.²⁴ A written constitution performs this restraining function because it has a semantic meaning that is independent of the desires of those who are called to interpret it.

This implication of a written constitution was clearly identified by Lysander Spooner, one of America’s earliest constitutional theorists. In his 1847 book, The Unconstitutionality of Slavery, Spooner observed:

[T]he constitution, of itself, independently of the actual intentions of the people, expresses some certain fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing.²⁵

In other words, the meaning of a written constitution is the semantic meaning of its words in context.²⁶ We adopt a written constitution because it has a semantic meaning that defines the limits of the powers of those who govern, and thereby helps keep these powers within proper bounds. And we adhere to the semantic meaning at the time of enactment because a written constitution would fail to perform its purpose if legislatures, executives, or courts could, whether alone or in combination, alter the meaning of these constraints on their powers.²⁷ The name we use today to describe this approach to constitutional interpretation is original public meaning originalism, or originalism for short. An originalist is simply a person who believes that the semantic meaning of the Constitution must be followed until it is properly changed.

But there is a limit to the guidance provided by the original public meaning of the Constitution. Often the text is specific enough to be applied directly to most controversies it was meant to govern. For example, each state is to have two senators, and the president is to be 35 years of age. These are the provisions of the Constitution that are not usually disputed or litigated. But other provisions of the text are more general or vague.

The Eighth Amendment bans cruel and unusual punishments, not specific types of punishment; it also bans excessive bail and fines, not a specific sum of money. The Fourth Amendment bans unreasonable searches and seizures, and the Fifth and Fourteenth Amendments require the due process of law. Even seemingly more specific provisions, such as the prohibition on laws abridging the freedom of speech require further specification of what constitutes speech given changing technology and what constitutes an abridgment.

That the original meaning of provisions like these are vague does not mean that they provide no guidance at all. For one thing there are core or paradigm cases to which they clearly apply, and peripheral cases to which they clearly do not. A text is vague when it is unclear whether a borderline case is included or excluded by its meaning. In this situation, the original meaning of the text must be supplemented. Constitutional interpretation is the activity of identifying the original meaning of the text; constitutional construction is the activity of supplementation when the meaning is too vague to settle a dispute.²⁸

This does not entail that constitutional construction is an entirely open-ended affair. A construction of the text that violated the original public meaning would be improper. You can think of constitutional interpretation as providing a frame within which choices must be made; but any choices that are outside the frame are unconstitutional.

Let me illustrate this by the Second Amendment, the original public meaning of which the Court in Heller correctly found to protect an individual right. Given that the D.C. statute prohibited the exercise of this right, it was a paradigm case of a statute that infringed the Second Amendment right of the people to keep and bear Arms. But what about laws that regulate rather than prohibit the exercise of this right? Suppose a law allows the concealed carrying of a firearm, but only by those adults who take an approved firearms safety course: Is this regulation reasonable? Because whatever answer to this question is given will not be deduced directly from the original meaning of the Second Amendment, a construction of the Constitution in addition to an interpretation is required.

How constitutional construction should be done is a bigger issue than I can address here, so let me simply summarize the conclusion I defend in Restoring the Lost Constitution: constitutional construction should be done in such a manner as to enhance the legitimacy of the Constitution.29 By legitimacy I mean whatever quality makes the Constitution binding.

How people construe vagueness in the text will often depend on what they believe makes the Constitution legitimate. Some believe that the legitimacy of the Constitution rests on the original consent of the people. Others think its legitimacy rests on the consent of the people today.

I agree with Lysander Spooner that both original and contemporary consent is a fiction.³⁰ Laws enacted pursuant to the Constitution are imposed on those who do not