Tom W. Bell

Libertarian-But Not Originalist!-Constitutionalism

2010 Students for Liberty Southern California Regional Conference

October 23, 2010, Malibu, California

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Libertarian-But Not Originalist!-Constitutionalism, slide 2, 2010 Students for Liberty SoCal Regional Conference

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Libertarian-But Not Originalist!-Constitutionalism, slide 3, 2010 Students for Liberty SoCal Regional Conference

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Libertarian-But Not Originalist!-Constitutionalism, slide 4, 2010 Students for Liberty SoCal Regional Conference

“Where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? Yet that is the most that could ever be said of the Constitution.”

Lysander Spooner, No Treason 24 (1870) (Ralph Myles Pub., Inc. 1973)

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Libertarian-But Not Originalist!-Constitutionalism, slide 5, 2010 Students for Liberty SoCal Regional Conference

Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. __ (2010) (forthcoming)

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Libertarian-But Not Originalist!-Constitutionalism, slide 6, 2010 Students for Liberty SoCal Regional Conference

• Look for the plain, present, public meaning;

• Apply a non-waivable default rule of "good faith and fair dealing ";

• Care about objective meaning--not subjective intent;

• Make the plain meaning of text trump "course of performance" (i.e., precedent);

and

• In cases of vagueness, construe the Constitution’s terms in favor of individual liberty.

If we regard the Constitution like a contract, we should:

Conclusion

• Consensualism interprets the Constitution according to its plain, present, public meaning.

• It justifies that interpretative strategy as more likely than alternatives to maximize the consent of those governed by the Constitution.

• Consensualism combines the responsiveness of “living” constitutionalism with the textual fidelity of orginalism, winning the best of both.

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Libertarian-But Not Originalist!-Constitutionalism, slide 7, 2010 Students for Liberty SoCal Regional Conference

Introduction

I. Nolan Chart

II. 2-D Con Law

III. Spooner Speaks

IV. Consent Theory

Conclusion

App.: Pledge v. 2008

Libertarian-But Not Originalist!-Constitutionalism, slide 8, 2010 Students for Liberty SoCal Regional Conference

Upgrading the U.S. Pledge of Allegiance

v. 1954 v. 2008

I pledge allegiance I pledge allegiance

to the flag to the laws

of the United States of America, of the United States of America,

and to the Republic on condition that

for which it stands, it respect my rights,

one Nation natural,

under God, constitutional,

indivisible, and statutory,

with liberty and justice for all. with liberty and justice for all.