# A Libertarian Constitution not open to ANY interpretation? **URL:** \ **Category:** Great Debates\ **Created:** [October 15, 2011, 4:40pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746 "2011-10-15T16:40:24Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 16, 2011, 7:32pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/61 "2011-10-16T19:32:13Z")
> [@John\_Mace](#): > > Seems like the only proposing that is **Stratocaster**. Until he comes back into the thread, I don’t see anyone else stepping in to answer it. Any and all Libertarians are certainly welcome to participate in this [del]devious trap[/del]debate thread. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 16, 2011, 7:37pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/62 "2011-10-16T19:37:20Z")
> [@Czarcasm](#): > > Any and all Libertarians are certainly welcome to participate in this [del]devious trap[/del]debate thread. Sure. But like I said, I can’t see anything about judicial review that violates any essential principles of libertarian thought. Seems like a person opinion of **Stratocaster** rather than a common position taken by libertarians. Now, there might be some extremely conservative groups who call themselves “Constitutionalists” who think judicial review snuck in through the back door a in the early days of the Republic. And maybe they’er right, but my take is that experience has shown this to be a good idea, and I would have no problem writing it in explicitly in my Constitution of the Libertarian States of America. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 16, 2011, 8:03pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/63 "2011-10-16T20:03:59Z")
> [@John\_Mace](#): > > Sure. But like I said, I can’t see anything about judicial review that violates any essential principles of libertarian thought. I agree with this. Of course, there are many interpretations of libertarian thought, but at some point you can fairly draw a line between debating a reasonable interpretation of a philosophy and debating one person’s misunderstanding of it. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [October 16, 2011, 8:09pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/64 "2011-10-16T20:09:52Z")
Ron Paul has a similar sort of idea: [We the People Act.](http://en.wikipedia.org/wiki/We_the_People_Act#We_the_People_Acthttp://en.wikipedia.org/wiki/We_the_People_Act#We_the_People_Act) It prohibits courts from ruling on issues relating to abortion, same-sex marriage, and religion because the Supreme Court “threaten[s] the republican government of the individual States by replacing elected government with rule by unelected judges.” So our guitar-bearing friend may be out of the mainstream, but he is aligned with notable political figures on this issue. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 16, 2011, 8:15pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/65 "2011-10-16T20:15:29Z")
> [@Ravenman](#): > > Ron Paul has a similar sort of idea: [We the People Act.](http://en.wikipedia.org/wiki/We_the_People_Act#We_the_People_Acthttp://en.wikipedia.org/wiki/We_the_People_Act#We_the_People_Act) It prohibits courts from ruling on issues relating to abortion, same-sex marriage, and religion because the Supreme Court “threaten[s] the republican government of the individual States by replacing elected government with rule by unelected judges.” > > So our guitar-bearing friend may be out of the mainstream, but he is aligned with notable political figures on this issue. You left off this part: “unless such a case were a challenge to the Constitutionality of federal law.”. So it would seem this is different from what **Strato** is proposing. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 16, 2011, 8:24pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/66 "2011-10-16T20:24:05Z")
> [@John\_Mace](#): > > You left off this part: “unless such a case were a challenge to the Constitutionality of federal law.”. So it would seem this is different from what **Strato** is proposing. So Ron Paul doesn’t want judicial review unless it’s used to strike down a federal law? Figures. I say fair play to **Ravenman** – Ron Paul can reasonably be considered a libertarian leader, and he opposes judicial review. I think that’s just more Ron Paul crackpottery rather than flowing from any libertarian tenet, but it apparently does represent some legitimate part of the current movement. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 16, 2011, 8:35pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/67 "2011-10-16T20:35:38Z")
> [@Richard\_Parker](#): > > So Ron Paul doesn’t want judicial review unless it’s used to strike down a federal law? Figures. > > I say fair play to **Ravenman** – Ron Paul can reasonably be considered a libertarian leader, and he opposes judicial review. I think that’s just more Ron Paul crackpottery rather than flowing from any libertarian tenet, but it apparently does represent some legitimate part of the current movement. I think this is more a reflection of his federalist, constitutionalist leanings rather than his libertarian side. The American situation is a bit more complicated because of our federal system, and I think there is a lot of overlap between the libertarians and the federalist/consitutionalists here. But there is nothing about a federal system that is essential to a libertarian government. We could start fresh in the US, abolish the plenary power of the states, and that would have no effect on whether you came up with a libertarian or a non-libertarian government. ---
**Author:** ![Merijeek](https://avatars.discourse-cdn.com/v4/letter/m/f05b48/32.png) [@Merijeek](https://boards.straightdope.com/u/Merijeek)\ **Post date:** [October 16, 2011, 8:43pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/68 "2011-10-16T20:43:52Z")
> [@Czarcasm](#): > > But Congress is pretty much bogged down as it is. Could they handle the extra work? > Edited to add: And without precedent, would the Constitution be reinterpreted every time power changed hands? No need. The moneyed interests would be able to buy the fuck out of the legislature and there would be absolutely no checks or balances. Truly "Libertopia’. -Joe ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 16, 2011, 9:59pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/69 "2011-10-16T21:59:56Z")
> [@John\_Mace](#): > > I think this is more a reflection of his federalist, constitutionalist leanings rather than his libertarian side. > > The American situation is a bit more complicated because of our federal system, and I think there is a lot of overlap between the libertarians and the federalist/consitutionalists here. But there is nothing about a federal system that is essential to a libertarian government. We could start fresh in the US, abolish the plenary power of the states, and that would have no effect on whether you came up with a libertarian or a non-libertarian government. I think that takes it a bit far. Libertarians favor less government. Having two layers of government is more government. So Anti-federalism is at least related to Libertarianism. So to the extent we’re talking about the federal power of judicial review when we talk about judicial review, then it’s something you might expect a libertarian to oppose. I wouldn’t expect opposition to judicial review by state supreme courts though. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 16, 2011, 11:11pm UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/70 "2011-10-16T23:11:03Z")
> [@Richard\_Parker](#): > > I think that takes it a bit far. Libertarians favor less government. Having two layers of government is more government. So Anti-federalism is at least related to Libertarianism. So to the extent we’re talking about the federal power of judicial review when we talk about judicial review, then it’s something you might expect a libertarian to oppose. I wouldn’t expect opposition to judicial review by state supreme courts though. I can’t think of a major American school of libertarianism that is ant-federalism, but if you know of some, I’d be interested in hearing about it. Libertarians also are distrustful of centralized authority, so federalism in a country the size of the US dovetails into libertarianism by investing more authority at the local level. In the context of the American experiment, there is a great deal of overlap between libertarianism and federalism. But it needn’t be that way. Not that libertarians would be anti-federalism, it would all depend on what specific authority is being vested at the various levels. At any rate, Ron Paul is a self-described libertarian and constitutionalist, with the latter being of the state’s rights brand of constitutionalism, and this position falls in line with that school of thought more easily than with libertarianism. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 17, 2011, 12:07am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/71 "2011-10-17T00:07:52Z")
> [@Czarcasm](#): > > That idea is so simple that it not only eliminates the need for a Supreme Court, it actually eliminates the need for a constitution itself-“If we say it’s Constitutional, then it’s Constitutional!” > [@Really\_Not\_All\_That\_Bright](#): > > I might add that there’s nothing in the US Constitution which says the Supreme Court is the arbiter of whether or not a statute violates the Constitution. Judicial review was by no means a foregone conclusion, and didn’t exist until 1803, [long after the first law that clearly did violate the Constitution](http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts#Constitutionality_and_Aftermath). I presume y’sll have never heard of [Calder v. Bull](http://en.wikipedia.org/wiki/Calder_v._Bull)? (See James Iredell’s opinion.) The canard that Marshall made up judicial review from whole cloth is the fabrication of some people with a personal agenda to press; unfortunately it has come to mislead some decent folks as to the truth. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 17, 2011, 12:09am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/72 "2011-10-17T00:09:12Z")
> [@Polycarp](#): > > I presume y’sll have never heard of [Calder v. Bull](http://en.wikipedia.org/wiki/Calder_v._Bull)? (See James Iredell’s opinion.) The canard that Marshall made up judicial review from whole cloth is the fabrication of some people with a personal agenda to press; unfortunately it has come to mislead some decent folks as to the truth. Indeed. There are worse places to start than the wikipedia [page](http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States)on the subject. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [October 17, 2011, 12:51am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/73 "2011-10-17T00:51:20Z")
> [@John\_Mace](#): > > Seems like the only proposing that is **Stratocaster**. Until he comes back into the thread, I don’t see anyone else stepping in to answer it. I never proposed that, and in fact said that any written words require interpretation. What I suggested was that if a law could be so ambiguous that it requires an interpretation so substantial that it amounts to legislating from the bench, it’s worthless as law–e.g., legislation that could support virtually any conclusion is worthless and the legislature needs to try again. Obviously there is debate as to where that line exists (and there are those who say the line doesn’t exist at all and are perfectly happy with the courts making the call). Anyway, I have said specifically that any constitution is unavoidably ambiguous. I have said specifically that I see the SC as the interpreter of the constitution, so long as that interpretation is not so far afield of the text that it amounts to installing new law (that’s the legislature’s role). I have said specifically that I see no reason why the SC couldn’t function in a libertarian society. I have no idea why this has led to a debate where no one is taking the counter position, and where there were nebulous “givens” established about how a libertarian government must function, or the challenges that this philosophy alone must overcome. I said it before, there’s no debate here, as posed in the OP. It was a non sequitur, based on a misinterpretation of a post. And here we are on page two. ETA: Some of this was in the other thread. And if my qualifiers like “significant interpretation” were unclear, I hope this clarifies. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 17, 2011, 12:58am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/74 "2011-10-17T00:58:49Z")
> [@Stratocaster](#): > > As I said in the other thread, it’s not possible. But if the constitution is ambiguous, it’s not the SC role to decide which outcome they like best. > [@Fear\_Itself](#): > > Actually, that is precisely the role of the Supreme Court. > [@Stratocaster](#): > > Not in my Libertopia, it isn’t. That is what you said. There is no separate body that can determine “so long as that interpretation is not so far afield of the text”. They either get to be the arbiter or not. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [October 17, 2011, 1:01am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/75 "2011-10-17T01:01:23Z")
> [@BrainGlutton](#): > > Except that “personal liberties” is a somewhat ambiguous concept, and simply will not do as specific legal terminology. Because it provides no grounds to determine whether action X, considered highly objectionable and intolerable by many or most, has “personal liberty” protection or not. Anything you **do** without immediate compulsion is an exercise of your “personal liberty,” after all. You’re the second guy who used an example specifically offered as ambiguous as an opportunity to point out that it’s ambiguous. In fact, it’s right there, no inference required, in the part you quoted. Just sayin’. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [October 17, 2011, 1:04am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/76 "2011-10-17T01:04:55Z")
> [@John\_Mace](#): > > That is what you said. There is no separate body that can determine “so long as that interpretation is not so far afield of the text”. They either get to be the arbiter or not. I hope I clarified it. This is from the other thread: > [@](#): > > If it requires significant interpretation, it gets bounced back to the legislature; the courts don’t get to resolve ambiguity, they only get to point it out. “Significant” is key, obviously, since any written words must be interpreted, and it won’t be perfect, like all human endeavors. I don’t expect perfection, however, despite the fact that progressives tend to insist that I do. > > Anyway, like furt suggested, I’m retro-fitting my “small l” libertarian perspective onto our existing structures. Not sure how I’d build something from scratch. But I can easily picture the SC playing a legitimate role in a society I considered libertarian. I honestly don’t think I’m suggesting anything novel here. In my view, a libertarian judiciary would be one of strict constructionism, something people advocate for our own SC. I really don’t see how that is suggesting that there’s no need for judicial review or that Libertopia would magically eradicate ambiguity. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [October 17, 2011, 1:29am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/77 "2011-10-17T01:29:29Z")
> [@Stratocaster](#): > > Obviously there is debate as to where that line exists (and there are those who say the line doesn’t exist at all and are perfectly happy with the courts making the call). … > > I said it before, there’s no debate here, as posed in the OP. It was a non sequitur, based on a misinterpretation of a post. So in the flag burning case I mentioned earlier, whose view would control: the judiciary and their pro-flag burning ways; or the clueless politicians who want to outlaw disrespecting our nation? I only asked this question because you said that elected leaders should have a greater role in interpreting a constitution. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [October 17, 2011, 1:40am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/78 "2011-10-17T01:40:58Z")
> [@Ravenman](#): > > So in the flag burning case I mentioned earlier, whose view would control: the judiciary and their pro-flag burning ways; or the clueless politicians who want to outlaw disrespecting our nation? > > I only asked this question because you said that elected leaders should have a greater role in interpreting a constitution. I think that flag burning is protected expression (unless you’re burning the flag indoors or something). I would think a libertarian judiciary would point to a similar first amendment in Libertopia’s constitution and find no significant ambiguity and opine, more or less, that a law that restricts an act purely because you find the idea expressed distasteful, is prohibited. Nothing overly ambiguous, I think, and the opinion is consistent with the text. In fact, I can’t imagine what an opposite opinion would be from a textualist’s perspective. And I never said elected officials should have a greater role in interpreting a constitution. I said that unclear laws should be pointed out as such by the judiciary, and the legislature put on notice that they need to rectify the problem. The judiciary shouldn’t just decide which outcome they like best (having no clear legislative direction) and making that the law of the land. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 17, 2011, 1:45am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/79 "2011-10-17T01:45:13Z")
> [@Stratocaster](#): > > I think that flag burning is protected expression (unless you’re burning the flag indoors or something). I would think a libertarian judiciary would point to a similar first amendment in Libertopia’s constitution and find no significant ambiguity and opine, more or less, that a law that restricts an act purely because you find the idea expressed distasteful, is prohibited. Nothing overly ambiguous, I think, and the opinion is consistent with the text. In fact, I can’t imagine what an opposite opinion would be from a textualist’s perspective. > > And I never said elected officials should have a greater role in interpreting a constitution. I said that unclear laws should be pointed out as such by the judiciary, and the legislature put on notice that they need to rectify the problem. The judiciary shouldn’t just decide which outcome they like best (having no clear legislative direction) and making that the law of the land. Well, that’s what they do in the case of interpreting statutes now. They rule, and their ruling stands until and unless the legislature passes clarifying legislation. With the constitution it’s a little different since the bar is set higher to pass an amendment. But for statues, a new law with a simple majority will overturn the SCOTUS, provide the new law is not ruled to be unconstitutional. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [October 17, 2011, 1:48am UTC](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746/80 "2011-10-17T01:48:01Z")
I think I could live with that in Libertopia as well. ETA: I have to think about it. But it seems as if deference to the legislature exists, if I’m understanding the circumstance you’re describing. [Previous page](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746.md?page=3) [Next page](https://boards.straightdope.com/t/a-libertarian-constitution-not-open-to-any-interpretation/599746.md?page=5)