Introduction
I. Nolan Chart
Tom W. Bell
II. 2-D Con Law
III. Spooner Speaks
IV. Consent Theory
Libertarian-But Not Originalist!Constitutionalism
Conclusion
App.: Pledge v. 2008
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
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
“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)
Libertarian-But Not Originalist!-Constitutionalism, slide 4, 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
Graduated Consent in Contract and Tort Law: Toward a Theory of
Justification, 61 Case Western L. Rev. __ (2010) (forthcoming)
Libertarian-But Not Originalist!-Constitutionalism, slide 5, 2010 Students for Liberty SoCal Regional Conference
Introduction
If we regard the Constitution like a
contract, we should:
I. Nolan Chart
II. 2-D Con Law
III. Spooner Speaks
•
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);
IV. Consent Theory
Conclusion
App.: Pledge v. 2008
and
•
In cases of vagueness, construe the Constitution’s
terms in favor of individual liberty.
Libertarian-But Not Originalist!-Constitutionalism, slide 6, 2010 Students for Liberty SoCal Regional Conference
Introduction
I. Nolan Chart
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.
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
Upgrading the U.S. Pledge of Allegiance
I. Nolan Chart
II. 2-D Con Law
v. 1954
III. Spooner Speaks
IV. Consent Theory
Conclusion
App.: Pledge v. 2008
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.
Libertarian-But Not Originalist!-Constitutionalism, slide 8, 2010 Students for Liberty SoCal Regional Conference