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Libertarian?But Not Originalist!?Constitutionalism

By Tom W. Bell and Glen Whitman

This past weekend, I spoke at the 2010 Students for Liberty Southern California Regional Conference, held on the campus of Pepperdine University, in Malibu, California. I enjoyed meeting a lot of very impressive young people, and sharing with them my thoughts on, Libertarian?But Not Originalist!?Constitutionalism. In brief, I argued for:

• Interpreting the Constitution according to its plain, present, public meaning (rather than its original one);
  
• Constructing the Constitution as we would a standard form agreement, thus favoring individual rights over federal powers;
  
• Deciding cases involving Constitutional rights by Citizen Courts structured akin to the panels help to guarantee the fairness of commercial arbitration procedures; and
  
• understanding the Second Amendment to protect subjects from militias (rather than preparing them to serve on militias).
  

For a simple picture of the sort of non-originalist constitutional theory I promoted?a "consensualist" theory?consider the following, modeled on the Nolan Chart:

I swallowed hard and conceded that a consensualist reading of the Constitution might support an argument in favor of a general federal dole. I see that as a fair price for showing that I didn't choose my theory just to support my favorite policies, however, and think that liberty still comes out ahead. A consensualist reading of the constitution puts very strict limits on the federal government's power to tax and regulate, after all.

I welcome your comments on either the PowerPoint presentation or the brief written document that I prepared to accompany the talk.

Full post as published by Agoraphilia on October 26, 2010 (boomark / email).