Saturday, October 3, 2015

Is the U.S. Constitution a libertarian document?

“Is the Constitution Libertarian?” My Baxter Liberty Initiative Lecture on 10/6 - The Washington Post - Randy Barnett, the Volokh Conspiracy:

September 29, 2015 - "On Tuesday, October 6th, I will be giving the Baxter Liberty Initiative Lecture, sponsored by the Political Science Department of the University of California at Berkeley. The topic on which I was asked to speak is 'Is the Constitution Libertarian?'...  I just finished writing my lecture. Here is a portion of how it begins:

"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, along with the Declaration of Independence, are the foundational statements of this creed.

"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. For, after taking Constitutional Law in law school, I considered the Constitution a noble, but largely failed experiment in limiting the powers of government. In my con law class, every time we got to one of the 'good parts' of the text that protected liberty, we turned the page to read a Supreme Court opinion explaining why that clause did not really mean what it appeared to mean....

"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’état by big government Federalists against the more preferable state-centered regime defined by the Articles of Confederation and favored by the Antifederalists.

"Yet many 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 U.S.... Libertarians still refer to the U.S. as a 'free country,' maybe still the freest on earth. That the Constitution deserves at least some of the credit for this freedom seems likely."

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