The Indifference of Constitutional Interpretational Belonging

The Example of the Libertarian & Ninth Amendment

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(U.S. Air Force graphic)

The topic of whether a libertarian’s reading of the ninth amendment comports with one “recognized” constitutional interpretation or another has been the constant subject of debate between libertarian jurisprudence, originalism, and living constitutionalist. However, what each advocate fails to realize is, it simply does not matter. 

Libertarians are hesitant to proclaim their interpretation of the ninth amendment coincides with the notion of a “living constitution” because such is associated with a strong central government and expansive sweeping court-ordered reforms. Thus, libertarian refugees seek solace in originalism which adamantly refuses the libertarian refugee. Originalists proclaim the reading of the amendment as favored by libertarianism is inconsistent with the constitution as they believe should be interpreted. The only logical question then, is where does that leave the libertarian certain the ninth amendment guarantees rights for the people not mentioned nor inconsistent with the constitution? Frankly, it leaves them alongside the other two theories.

Stay with me for a moment. Originalism and the notion of the “living constitution” start at the same point. Both advocates must decide, or to adequality justify such interpretation, an answer to the question: why should the constitution be read this way? Posit the answer of each advocate. Really, it does not matter.  The libertarian must answer the same question. More specifically, the originalist, living constitutionalist, and libertarian must answer why should the ninth amendment be read one way versus another way? Of course, the different factions will disagree, and such disagreement might lead to different results. But trying to classify the libertarian into one of the two recognized categories is rather useless. What is the practical consequence of grouping the libertarian with the originalist? None. Is there a practical consequence of grouping the libertarian with the living constitutionalist? Nope. What the problem seems at a cursory glance is recognition and legitimacy. Libertarian theorists are longing for a need to be recognized and validated by acceptance into one of the two “recognized” groups. This is an all too familiar problem with libertarianism. Look at the political party. 

Both the originalist and living constitutionalist hold as their approach some fundamental precept followed by subsequent precepts. The originalist holds that the constitution should be read as a charter of prescribed conducts as understood at the time of the framers. The living constitutionalist asserts the constitution should be read as aspirational principles. Adherence to such precepts in turn makes them an originalist or living constitutionalist. The same is true with libertarianism. It is a consequence to some adherence to precepts. Thus, if the precept of “the constitution shall be read to ensure the maximization of individual rights so long as those rights do not interfere with others” then it is likely a libertarian consequence would follow. The only difference is the guise of impartiality would dissipate. But whether this is done implicitly by just adhering to a fundamental precept with no proclamation of end or explicitly, the results politically divide. Therefore, the libertarians need not focus on whether or not the consequence of libertarianism fits within one of the “recognized” methods of reading the constitution. Instead, to advance not only the precepts that underpin libertarianism but the libertarian consequences, the goal should be to garner support for such precepts resulting in adoption.

The goal of this article is not to undermine the ever still continuing debate as to whether or not libertarianism is compatible with originalism or if it belongs to the living constitutionalist. The goal is simply to recognize that libertarianism does not need to “fit.” All theories of constitutional interpretation start with the answers to the same question. Thus, libertarianism does not need to “fit.” 

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Michael Westbrook

I am a current law student at Boston University School of Law. I have Bachelor's degrees in Political Science and in Philosophy. My concentration is political theory with an emphasis on libertarianism.

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