View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Georgetown Law Scholarly Commons Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2009 Is the Constitution Libertarian? Randy E. Barnett Georgetown University Law Center,
[email protected] Georgetown Public Law and Legal Theory Research Paper No. 1432854 An abbreviated version of this article was delivered as the 7th Annual B. Kenneth Simon Lecture at the Cato Institute on Constitution Day, September 17, 2008. This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/827 http://ssrn.com/abstract=1432854 2009 Cato Sup. Ct. Rev. 9-33 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, and the Law and Politics Commons ABSTRACT: Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the liberties of the people—and even enslave their own people—subject only to their own constitutions.