The Mainstreaming of Libertarian Constitutionalism

29 Pages Posted: 20 Feb 2015 Last revised: 23 Feb 2015

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Ilya Somin

George Mason University - Antonin Scalia Law School, Faculty

Date Written: February 18, 2015

Abstract

Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

Keywords: libertarianism, constitutional theory, Supreme Court, legal history, property rights, economic liberties, classical liberalism, Lochner, Kelo, Lopez, Morrison, separation of powers, constitutional baselines, Cass Sunstein, Richard Epstein, Randy Barnett

JEL Classification: K10, K11, K30, H70, H77

Suggested Citation

Bernstein, David Eliot and Somin, Ilya, The Mainstreaming of Libertarian Constitutionalism (February 18, 2015). Law and Contemporary Problems, Vol. 77, No. 4, pp. 43-70, 2014 (Symposium on “Law and Neoliberalism”); George Mason Law & Economics Research Paper No. 15-04. Available at SSRN: https://ssrn.com/abstract=2566855

David Eliot Bernstein

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)

HOME PAGE: http://mason.gmu.edu/~dbernste

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)

HOME PAGE: http://sls.gmu.edu/ilya-somin/

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