Positive Liberty

In the comments to my post “Sandefur and Liberal Originalism,” Caleb writes,

I think I understand you to be saying that we are not bound to follow the Founders’ practical realizations of the Declaration’s principles–that we should “hold ourselves more true to their principles than even they themselves had been.”

But then why refer to those principles as their principles? Doesn’t the use of the possessive pronoun inextricably link the principles to their practices? If you really want a Rankean escape from history, then why quote John Quincy Adams or Jefferson at all?

As always, my readers ask some of the very best questions. In what sense do we share Jefferson’s principles at all? Are we ever really acting in the tradition of Locke or Montesquieu? Do we ever step in the same river twice?

I suspect my answer won’t satisfy Caleb’s doubts, but as I see it is that we’ve got no choice but to try.

First, consider that absolutely any system of constitutional interpretation will always fall victim to Caleb’s criticism, if not worse. Liberal originalism is not unique in this regard. No matter how close or how far we may range from the canonical writings of the founders, all constitutional law is going to require a process of value judgment and interpretation that historians are routinely told never to do.

Given these constraints, liberal originalism strikes me as a good balance, at least as far as I understand it. We avoid two absurdities right away: First, we escape the dead hand of the laws as they existed in 1787. Second, we have a ready avenue of argument against all sorts of equally absurd innovations. Before we even consider them, the proponents of these innovations must explain how they are consistent with the spirit of the original Constitution, guided by the experience that we have had in the meantime. In the great majority of cases, I suspect that they would not be able to do it. This is the benefit we get from adhering to the principles, rather than the letter: It steers a middle course between the two extremes.

How would the past have viewed our constitutional judgments? How will the future view them? Will they find their judgments consistent with our own? Will historians find our judgments consistent with the spirit of the past–given that they may differ on what, precisely, that spirit was?

I may be going out on a limb here, but I would say… It doesn’t matter. We are the ones who have to decide; right now, we are the republic; we are the people.

This is how I’m a liberal, and this is how Ranke’s quote applies to liberal originalism as I understand it. The choice falls to us, to the best of our understanding, and that is that. We act in a tradition, of course, and we are bound to follow the Constitution and the other laws of the land. But precisely what that binding entails–well, that’s for us to decide. No one else can do it. Every age is immediate to God, as Ranke put it.

So what does that mean for the bigger picture of constitutional law?

Oh come now… You didn’t really expect that I’d have some instant formula to give you all the answers, did you? I may be a liberal, but I’m as far from utopian as they come.

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