Image: Charles Brutlag / Shutterstock.comCitizenship and the “Living, Breathing Constitution”
Image: Evegenia Parajanian / Shutterstock.comProtecting Traditional Rights with the Ninth and Fourteenth Amendments
Friedrich Hayek (1899 - 1992) with a class of students at the London School of Economics, 1948. (Photo by Paul Popper/Getty Images)Was Hayek an Originalist?
Friedrich Hayek in Gothenburg, Sweden 1981 (Roger Tillberg / Alamy Stock Photo).A Commentary on Holmes’s Lochner Dissent: Part I
Bakery in New York City, 1936 (Robert Kelly/Wikimedia Commons/CC-GY 2.0).The Continuity of the Fourteenth Amendment with the Founding
At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.
In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty. The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.
For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers. They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery. As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally.
Who Are the True Heirs of the Reconstruction Republicans?
In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:
Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.
For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . . what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.
Graber’s argument, which has also been made in the literature, is not persuasive. In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.
Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue.
A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part II: The Original Meaning
Having stated my political view that the United States should allow a large amount of legal immigration, I now turn to birthright citizenship: the idea that any person born in the United States should automatically be a United States citizen. While I will develop this point later, it should be noted at the beginning that these two issues do not necessarily coincide. One can favor immigration, even illegal immigration, and still be against birthright citizenship. As I will explain later, I hold a version of this position. Similarly, one could favor birthright citizenship and be against much immigration. The first sentence of…
A Classical Liberal Constitution Welcomes Immigrants
Immigration of the right kind is a great benefit to a nation run under principles of liberty. If the immigrants obey our laws and work productively, they will add to the nation’s wealth. If they assimilate to the nation’s creed of liberty under law, they strengthen its power throughout the world, because their former compatriots take heed of their success and that example may encourage more liberty in their home nations. And not only do the citizens of the welcoming nation benefit, so also do immigrants. The value of their human capital rises as soon as they set foot in a nation of free markets and the rule of law.
The way to encourage citizens to embrace immigration from abroad is to have a constitution that limits welfare programs and precludes ethnic discrimination. Without such commitments, citizens may rationally worry that poor and even work-shy immigrants may come and eventually vote themselves higher levels of benefits, even at the expense of long-time citizens and their descendants. Without guarantees against discrimination, citizens may also worry that ethnic groups who still feel solidarity based on previous ties, will try to organize government benefits on the basis of ethnicity, impeding assimilation.
And now I can reveal that once there was a nation that had a constitution with the pre-commitments needed to facilitate a sound immigration policy. It was the United States after it had ratified the 14th Amendment.
How Constitutional Originalism Promotes Liberty
What approach to constitutional interpretation best protects liberty? My task in this essay is to answer that modest question. Ultimately, there is no definitive answer that applies to all times and all places. But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet. Both the structural and individual rights provisions of the Constitution generally protect liberty more when interpreted from an originalist standpoint than by applying any of originalism’s plausible competitors. Before even beginning to defend that position, we must first consider what is meant by “liberty.” Adherents of different ideologies…
Responses
In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not…
Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of “ ‘negative’ liberty defended by most…
The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…
I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…
