Gary Johnson and the Promise of Libertarian Constitutionalism

Libertarian candidate Gary Johnson recently told Reason.tv that if he’s elected president his nominees to the U.S. Supreme Court will be “people that look at the Constitution of original intent.” Over at the liberal legal blog Balkinization, University of Michigan law professor Richard Primus took issue with Johnson’s statement. Johnson’s problem, Primus insisted, is his “mistaken understanding that the Founders shared his libertarian values.” In Primus’ view, libertarians really have no business being constitutional originalists because it is “a serious distortion of history to think of the Founders’ Constitution as distinctly libertarian.”

To be sure, the Constitution is not tantamount to the Libertarian Party Platform. But then of course no serious libertarian legal thinker would ever claim otherwise. The salient point here is that the Constitution—interpreted according to its original meaning—does contain some very powerful libertarian elements.

Here’s an example. When the Supreme Court struck down the National Industrial Recovery Act in 1935, it did so on the grounds that this sweeping piece of New Deal legislation exceeded Congress’ enumerated powers under the Commerce Clause. In response to that ruling, President Franklin Roosevelt attacked the Supreme Court for sticking to the original meaning of that moldy constitutional provision. “The country was in the horse-and-buggy age when that clause was written,” the president fumed. In other words, even FDR acknowledged that constitutional originalism led to certain libertarian results. Those results are the reason why FDR rejected original meaning in favor of living constitutionalism.

The original meaning of the 14th Amendment offers another case in point. As I argued in my recent book, Overruled, “the text of the Fourteenth Amendment, the historical context that shaped it, and the statements of purpose made by those who drafted it, voted for it, and ratified it, all point in the same direction: It was designed to make state and local governments respect a broad range of fundamental rights, including both those spelled out in the Bill of Rights and those economic liberties essential to safeguarding the principles of free labor.”

So yes, the Constitution does contain a number of significant libertarian elements. The trick, as always, is getting the government to abide by those elements in the first place.