Progressives and conservatives often forget what lies at the heart of America’s Constitution.
Last December, my book, The Classical Liberal Constitution was published. In it, I argue that a sound interpretation of the Constitution requires reading its key provisions in light of the comprehensive classical liberal theory that animated their introduction. Constitutional law does not evolve in a self-contained universe, but is embedded in the intellectual tradition of private property and limited government. It is therefore deeply problematic to begin constitutional interpretation with either some preconceived notion of judicial restraint or the equally misguided belief that the justices are handmaidens to some “living constitution.”
How Modern Constitutional Law Falls Short
The classical liberal vision is out of vogue with the prominent strands of modern constitutional thought. Much of this disfavor rests in the implicit assumption that no coherent form of “cosmic constitutional theory” can be drawn from the document with the classic liberal approach. Thus Professor Robert Nagel criticizes my book in National Review for failing to show that classical liberal theory indeed animated the document or is strong enough to decide key cases under it. In so doing, he cites with approval Judge J. Harvey Wilkinson, whose well known-book Cosmic Constitutional Theory, eschews grand theory in favor of the constitutional minimalism of Edmund Burke. Wilkinson in particular takes to task the living constitutionalists like the late Justice William Brennan who insisted that “it is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions,” in light of the “sparse or ambiguous evidence of the original intention.”
Ironically, it is thinkers like Wilkinson who give living constitutionalists like Brennan the cover they need to work their will. And all too often, the result is not “judicial hegemony” that deprives people of their capacity for self-governance, but judicial deference that allows political majorities to run roughshod over political minorities in the name of the living constitution.