Posted by Randy Barnett:
Is the Constitution Libertarian?
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247576651
That is the question I addressed in my B. Kenneth Simon Lecture at the
Cato Institute last September on Constitution Day. I have now posted
the article by the same name that will appear in the Cato Supreme
Court Reporter [1]here on SSRN for downloading. Here is the abstract:
Ever since Justice Holmes famously asserted that �the Constitution
does not enact Mr. Herbert Spencer�s Social Statics,� academics
have denied that the Constitution is libertarian. In this essay, I
explain that the Constitution is libertarian to the extent that its
original meaning respects and protects the five fundamental rights
that are at the core of both classical liberalism and modern
libertarianism. These rights can be protected both directly by
judicial decisions and indirectly by structural constraints. While
the original Constitution and Bill of Rights provided both forms of
constraints, primarily on federal power, it left states free to
violate the liberties of the people - and even enslave their own
people - subject only to their own constitutions. The
constitutional protection of individual liberty was substantially
enhanced by adoption of the Thirteenth and Fourteenth Amendments,
which abolished slavery and extended the power of the federal
courts and Congress to protect the rights if individuals from
violation by state governments. Libertarianism has much less to say
about either the conduct of foreign policy or the proper
institutional allocation of foreign policy powers (though some
libertarians mistakenly accord to foreign states a sovereignty that
properly belongs only to individuals). Perhaps not coincidentally,
the Constitution provides few constraints on the foreign policy
decisions of the political branches, or on the allocation of power
between them.
To answer the question, "Is the Constitution Libertarian?," I had to
discuss what is meant by "libertarian" as well as address some
misconceptions about libertarianism made even by some libertarians.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1432854
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