In favorem libertatis – how libertarians should read law
US President Donald Trump recently sparked controversy by saying he will be revoking the ability to acquire citizenship through birth by way of an executive order. This, in turn, has led to questions on the meaning of the citizenship clause contained in the Fourteenth Amendment to the US Constitution, which says that anyone born in the “United States, and subject to the jurisdiction thereof” is a citizen.
The ordinary, accepted, and arguably correct interpretation of this phrase is that if you are born in the US and subject to the application of its laws, you are a citizen.
This is a textual interpretation, meaning that a provision that is unambiguous and clear, like this one, should be assigned its ordinary meaning. When provisions are ambiguous and unclear – and only when they are ambiguous and unclear – courts employ the help of aids of interpretation. These aids are theories and rules that assist courts to come to an acceptable meaning. There are dozens of these aids.
In the United States, arguably the most well-known aid of interpretation is known as ‘originalism’, one prominent school of which is original intent. Original intent is similar to another aid of interpretation recognized around the world, known as the ‘legislative intent’ rule. Loose construction, or ‘living constitutionalism’, is considered to be the opposite of originalism, at least in the American jurisprudential discourse.
In this article, I want to outline a potential libertarian theory of statutory (including constitutional) interpretation. I won’t be focusing specifically on the controversy surrounding the Fourteenth Amendment, but will use it as a go-to example when appropriate.
There is a difference between the ‘interpretation’ and the ‘construction’ of statutes and their provisions, but for the purposes of this article I will be using the word ‘interpretation’ to refer to both.
Why original intent won’t do
The Rule of Law is a recognized principle of libertarian jurisprudence, in large part due to the work of Friedrich von Hayek in his book The Constitution of Liberty. Others like Bruno Leoni in Freedom and the Law is also worth reading in this regard. Simply, the Rule of Law means that society is governed by law, and not by personalities and their whims. Of course, libertarians have a very specific conception of what “the law” should be – the protection of liberty and property – but even within the contemporary understanding of law, government is far more limited if only the law as enacted by the legislature is recognized as authoritative, and the subjective discretions and impulses of politicians and bureaucrats as lacking any original authority.
This is important to why original intent, which is associated with conservative jurisprudence in the United States, should be rejected from a libertarian jurisprudential perspective.
In essence, original intent and the legislative intent rule are all about what specific people or institutions thought, understood, or believed at some point in time.
In the case of the current controversy surrounding the Fourteenth Amendment, original intent rather than original meaning is animating the debate.
Those who wish to put forward an interpretation of the citizenship clause that excludes children of foreign parents from citizenship have been, among others, quoting Senator Jacob Howard, one of the drafters of the Fourteenth Amendment, who is alleged to have said:
“[The provision] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
On a first reading it seems that Howard is confirming that citizenship will be conferred on the new children of foreigners, with the exception being those related to ambassadors and foreign mission staff. But there is now an argument that the word “or” or “and” should be inserted after “aliens,” and before “who”, as this is apparently what Howard meant.
This latter interpretation is used by some proponents to say that the original intent of a drafter of the Fourteenth Amendment, Howard, was to exclude the children of foreigners, and therefore, this is the correct interpretation.
Whether there was an error in the congressional minutes or whether Howard meant exactly what is written, there are two Rule of Law-related issues with taking the view that the original intent of Howard is in any way relevant.
The first is that this clause of the Fourteenth Amendment does not give rise to confusion or ambiguity. Everyone in the United States, whether they are citizens or not, are subject to the jurisdiction of the United States. (The question of diplomats aside.) The provision does not say “and subject only to the jurisdiction thereof” or “and not subject to the jurisdiction of other countries” or “and completely/comprehensively subject to the jurisdiction thereof”. Furthermore, to argue that non-citizens are not subject to the jurisdiction of the United States, would be to argue that they may do as they please without regard to American law when inside the US. It also defeats the idea of illegal immigration, since one cannot be an illegal immigrant if immigration law does not apply to you.
Thus, the fact that this provision is clear and unambiguous, and that to construe it otherwise would result in absurdities, means that no recourse to interpretive aids is necessary. Original intent should therefore not even feature in the debate.
The second issue is that the theory of original intent is too indeterminate, perhaps more so than living constitutionalism. Indeed, whose original intent is to be considered authoritative? The original delegates to the convention that created the US Constitution – i.e. devised the constitutional framework – often referred to as the Founding Fathers? If so, why not the delegates at the respective state ratifying conventions? As Professor Stephen Macedo writes, it is the state ratifying conventions that gave the Constitution the force of law, not the Philadelphia convention. Do we take the delegates’ intentions based on what they wrote in their correspondence to one another, or in the Federalist Papers, or what they said on the convention floor? What about the things they said in backrooms that were not recorded? What about the actual staff who drafted the provisions? Or do we look at the politicians who devised the Fourteenth Amendment that operates within the constitutional framework, or the drafting staff thereof? Do we look at the intention of the entire Congress, or the sponsor, or the committee where it was debated? Whose original intent?
What about conflicts of interpretation between delegates and legislators, as well as delegates and legislators inter se? What those delegates or legislators that were themselves confused about the meaning of the respective provision? What about those whose intent was never stated? What original intent?
Macedo writes that those engaged in constitutional interpretation must “begin with the text itself and seek to understand not only the words but the structure of the document as a whole, the nature of the institutions it sets up, the powers and rights it enumerates, and the principles and purposes implicit in these words, structures, institutions, powers, and rights”. Indeed, he writes, “the Constitution declares itself to be supreme and requires that judges take an oath to support the document itself, rather than past judicial interpretations of it.”
He notes pertinently, “The notion that specific but unstated intentions ought to supplant the interpreter’s best understanding of the general words and structure of the document represents a devaluation of the status of the document itself.”
Why ‘living constitutionalism’ won’t do
The relatively contemporary notion of living constitutionalism is associated with progressive jurisprudence. In essence, the idea is that the Constitution, or presumably any statute, should be interpreted within the context of the values and feelings of contemporary society. Dealing with this notion is somewhat quicker and easier than dealing with originalism.
Living constitutionalism, somewhat like the idea of original intent, vests the force of law almost exclusively in the hands of a personality, rendering it almost entirely indeterminate. Whereas with original intent, the force of law is given to the ostensible opinions and beliefs of people who lived centuries ago and our understanding of those opinions and beliefs, with living constitutionalism, the force of law is given to the individual judge and their interpretation of society’s current values. This defeats one of the main purposes of the law, that is, to avoid, regulate, and solve disputes. If the meaning of law, especially constitutional law, is in a constant state of flux depending on the judge’s way of looking at society and its values, the law, as an institution, is rendered useless.
Progressives themselves would do well to remember that living constitutionalism isn’t necessarily the monopoly of the left. A conservative court can easily apply the same doctrine and come up with results that are unacceptable to progressive goals. In fact, it is conceivable (but unlikely) that a conservative interpreter who subscribes to loose constructionism might say that the meaning of “and subject to the jurisdiction thereof”, if interpreted in the context of America’s recent election of a nativist and a resurgence of nationalism, means “and only subject to the jurisdiction thereof.” That living constitutionalism will always produce so-called progressive results is thus a far cry from reality.
The principle ‘in favorem libertatis’
I have no doubt that many will disagree with my takes on original intent and living constitutionalism as described above. But if I have achieved anything, I hope I have succeeded in showing the reader that with both theories, the meaning of the law is left wide open and depends too much on the kind of judge one’s case will appear before. The enterprise of trying to find out what the original intent of a particular law (or a particular lawmaker(s)) was, and the enterprise of trying to find out what society’s apparent values today are, makes a mockery of the Rule of Law, since with their application it is not the law that rules, but the whims of man.
What, then, is a good libertarian aid of interpretation?
Firstly, it must be noted once again that aids of interpretation can only be employed when a provision is ambiguous or vague. It would be jurisprudentially dishonest for a libertarian interpreter to jump directly to his aid of interpretation even if the provision he is dealing with is formulated in an obviously-clear way. If he does, the distinction between law and libertarian philosophy evaporates, and, if anything, this will be totally unacceptable to practically anyone. A jurist must also respect his field enough to understand that he cannot wipe away centuries’ worth of legal development with his own recent political opinions. This means, thus, that potentially oppressive provisions of law must be sanctioned, at least as far as interpretation goes – they can certainly still be considered unconstitutional or invalid for other legal reasons.
With that noted, I believe the best libertarian aid of interpretation is the in favorem libertatis rule. Those who are somewhat familiar with Latin will immediately notice that an interpretation in favorem libertatis simply means an interpretation in favor of (individual) liberty.
Professor AM Dlamini writes:
“Judges are able to exercise a choice in the interpretation of a rule or provision because of the fact that a rule cannot always have a fixed meaning. The nature of the argument presented to the court in such cases usually revolves around the wording of the particular statute or provision. One of the contending interpretations will always be in favorem libertatis or be less harsh. It is when such a situation arises that the courts can and should invoke the principles of the common law. These principles, it has been submitted, form a foundational part of our common law. Their purpose is to foster the worth of the individual.”
The in favorem libertatis aid has been used most commonly in criminal proceedings. Essentially, when a penal provision is vague or otherwise unclear, the court would give the benefit of the doubt to the defendant and interpret the provision in such a way as to afford the defendant the most liberty. This may mean that a penal provision is interpreted narrowly, so as to exclude its potential application to the defendant, or another provision may be interpreted widely, so as to include the defendant within its protection. Thus, the rule in favorem libertatis does not favor a wide, generous, or liberal reading on the one hand, or a narrow, strict, or conservative reading on the other hand. It simply favors an interpretation that is least restrictive to the liberty of the subject of the provision. In favorem libertatis interpretations have been used in fiscal and taxation matters as well, and is thus not by its nature limited to criminal law.
Interpretations in favorem libertatis are complementary and perfectly compatible with the idea of constitutionalism itself. A constitution, after all, exists to provide a framework of governance; a framework outside of which the constituted entity may not step. The nature, and arguably always the intention of a constitution, is thus to limit and constrain. This idea, as far as the government is concerned, has often been expressed as “that which is not allowed, is forbidden”. Consequently, if a statutory provision is so unclear or ambiguous that one cannot reasonably find a sanction of power in the words, it must be interpreted as not bestowing any sanction. In other words, the interpretation of an unclear provision that potentially limits liberty, should always be narrow, and the interpretation of an unclear provision that potentially protects or advances liberty, should always be wide.
Making use of the in favorem libertatis rule does much in the way of solving the indeterminacy problem of original intent and living constitutionalism. There will always be cases where the result is not clear-cut, but it is an inherently more doable and less obfuscative task to determine whether a particular interpretation of a provision confers more or less freedom on the subject individual, than it is to determine what some people from a few hundred years thought about it, or what the whole society’s feeling today is about it.
The school is still out on what an interpretation in favorem libertatis of the citizenship clause of the Fourteenth Amendment would look like. My argument remains that no aid should be employed, because the clause is not vague or ambiguous. But libertarian constitutionalists, whether they lean conservative or progressive, and whether they’re scholars or laymen, would do well to adopt the in favorem libertatis principle as their chief interpretive aid, as a potential way to create a palatable libertarian jurisprudence for the future.
Martin van Staden is pursuing a Master of Laws degree at the University of Pretoria. His upcoming book, The Constitution and the Rule of Law: An Introduction, will be available in the near future.
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