Economic Libertarian Constitutionalism

Prof. Dorf's latest column concerns a book review regarding the "libertarian" Constitution, which often is a matter of a conservative friendly economic rights view.  The review shows how the person in question is faint-hearted in respect to abortion and gay rights though appears to have a default against them when popular majorities limit their freedom.  Ted Cruz at Liberty University self-proclaimed as a "conservative" candidate, but be on guard regarding the location. A blithe "less government" frame will come at some point with a different audience.  Tends to happen.

We have here in particular a debate among professors -- Prof. Sherry (not Sherry Colb, Dorf's professor wife, to be clear) wrote the book review regarding a third professor's (Richard Epstein) work and theories.  A large part of it is debate over facts -- she argues that Epstein is wrong there too, further suggesting ultimately we are dealing with a general moral view of the world that clouds assumed neutral rules (e.g., use of history).  Ultimately, we do need to determine proper baseline values when applying constitutional text and principles. 

Above all, judging is an act of controlled creativity.  Like writing at its best, it both draws on and evokes memories of what has gone before, but by innovation rather than mimicry. It simultaneously acknowledges our debt to the past and denies that the past should control the present. The task of the pragmatist decisionmaker is to reconcile a flawed tradition with an imperfect world so as to improve both and do damage to neither. We can argue about whether a particular judge does so well or badly, but we should recognize that neither her job nor ours can ever be mechanical.

A person who blogs with Prof. Dorf honors a "pragmatic" judge here, and without commenting on that judge in particular, it does seem that it is the most useful approach in the real world.  It also helps explain what actually occurs -- a person like Justice Scalia, e.g., chooses an approach to judicial interpretation (some form of "originalism") for functional reasons, including as the "best" way to adjudicate.  The concern that you really aren't "judging" without the restraint of his approach might not be true on the merits, but it clearly is a major influence on his judging.

That last entry also flags the idea that the Supreme Court is not really a "court," since the justices use a sense of personal fairness without enough of the true restraints a "court" offers.  I find that tedious -- an example of degree being confused with kind.  We saw this over at Volokh Conspiracy regarding "no" limits to treaties (Bond) or the Commerce Clause (ACA).  As the excerpt notes, "judging" is something of an art that as applied by humans in reality has a degree of discretion.  It will involve some concern with public morality (such as equal protection or concern with individual rights) influenced by but not bond to the past with non-fungible judges deciding the particulars.

Messy, but it's how things work in reality.*  If we don't like how judges currently are doing their jobs, we need to deal with how things will work in practice.  Some Platonic view of a "court" is fantastical.  The quotation is from a discussion of the Ninth Amendment, which references unenumerated rights that in application repeatedly involved broad open-ended things, not merely fixed points. How to apply them would involve using various judicial techniques (e.g., comparing like to like) with the best approach and results developing over time.  Like natural law, which in some fashion continues to influence the application, human knowledge is being used here over time, the changing nature of things part of the point -- such is part of the genius of the constitutional text.

One commenter in the first thread speaks of "economic" and other rights. But, note the title of the essay -- it isn't about "economic" constitutional rights, but economic libertarian views. The Supreme Court did eventually draw a line between changing economic arraignments and rights such as the rights of parenthood.  But, there is some overlap here -- the sale of contraceptives, limits on the federal commerce power, etc.  There are economic rights (e.g., due process involving "property") and the same applies to those not expressly granted. The right to choose what sort of work one does for a living is "economic" in nature.**

The author of that book review co-wrote a book about how no one interpretative vision probably works -- in practice, it is more of a stew.  And, so is the case here -- the economic libertarian has some leg to stand on since s/he can appeal to certain concerns, but ultimately the Constitution is too supportive of governmental power (including over the economy) for that to work as a general principle.  Some other principle, let's say democracy, might work more.  But, I'm wary of any one view here.

Even that "view" might be best applied with a grain of salt.

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* At times, the messiness leads to cries of judges not really having clear standards, including the likes of O'Connor or Breyer.  But, the other judges in practice do not provide grand alternatives.  Justice Souter provided a sort of moderate conservative view of substantive due process as a finale to his tenure:

The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

"Judgment" is not a matter of mathematically nicety and if one wants that we need not only a different legal system but robotic judges.  Though even then, I wonder.

**  More at the Dorf on Law comment thread.