Was Friedrich Hayek an Originalist? [POLICYbrief]
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Was Friedrich Hayek an Originalist? [POLICYbrief]


Friedrich Hayek was an Austrian economist
who lived during the 20th century. But he was not only an economist, he also
developed fame as a political theorist and as a legal theorist. I believe Hayek was an originalist, although
he was an originalist of a special kind. Originalism is the view that one ought to
interpret the Constitution based on its original meaning. Not based on the meaning that it develops
over time or that modern people would think it should have, instead based on the meaning
that it had at the time of the enactment of the Constitution. Hayek thought this was extremely important
because that was the only way in which you could place limits on the government. If judges or the legislature could, in a living
constitutionalist way, change the meaning of the Constitution, they would not be limited
by it. Hayek also believed that the American founding
was important because they believed, in contrast to the English system, that the legislature
should be limited by the Constitution. Part of the reason why the Americans rebelled
against the British was the British idea that there was parliamentary sovereignty, that
the parliament could enact whatever laws it believed were proper. The Americans rejected that. They believed that there had been traditional,
fundamental law, as stated in documents like the Magna Carta, that ought to be enforced
and that ought to place limits on the parliament. But what’s important for Hayek is, is that
he sees this recognition of the importance of unwritten constitutional rights and principles
as having a place in the constitutional text and intent of the framers. Hayek was a different kind of originalist
than many of the sort of modern originalists because he thought there was a very important
role to play with unwritten constitutional rights and principles. One of his complaints was that the unwritten
rights and principles in the Constitution were not enforced adequately and that they
should have been enforced under the Ninth Amendment. Hayek said the judges looked to the Due Process
Clause, and then in applying the Due Process Clause, they didn’t look for unwritten rights
and principles but instead engaged in a kind of reasonableness review. Hayek believed that this was a kind of judicial
legislation, sort of inconsistent with the role of the judiciary. I certainly think that Hayek would have believed
that an originalist judiciary would be superior at enforcing a written Constitution than an
elected legislature. This would be especially the case if the originalist
judiciary were interpreting the Constitution, correctly in his view, and enforcing the Ninth
Amendment. Hayek recognized and believed firmly that
the legislature couldn’t be trusted to enforce the Constitution on its own. It would be passing laws that would be responsive
to the concerns of specific issues at the time, and as a result, would ignore the more
general principles. It would be the judiciary that would be in
the position to enforce those more general principles.

2 Comments

  • GerryStilton

    And yet these politicians and judges who are sworn to upheld the Constitution keeps trying to make it a living document rather than interpret it as it was originally intended. Talk about being unfaithful to the Constitution and the rule of law.

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