30 Jul
2010

Posted in: In English
By Mikołaj Barczentewicz    5 Comments

Judge Napolitano on which one is more important: freedom or the Constitution

Today, I’ve had a great opportunity to ask Judge Andrew Napolitano a question that hounds me for some time now. Last week, on LewRockwell.com I tried to give an answer to the problem of the relationship between libertarianism and originalism in constitutional interpretation. My conclusion was that because originalism renders libertarian results most of the time, libertarians should endorse it. Still, the Constitution is not a libertarian manifesto, and it might happen that following it’s original public meaning would conflict with the principle of freedom. The question then is a normative one: what should a judge do in such a situation?

And that’s what I’ve asked Judge Napolitano about:

Myself:
Judge, when the principle of freedom and the Constitution conflict, which one should be paramount to US Justices who swore to uphold the Constitution? What’s more important: freedom or the Constitution?

Judge Andrew Napolitano:
Almost everybody who is a judge in the country today would probably answer: the Constitution. But I would argue that the Constitution embodies the natural law, and it is the duty of judges to uphold the natural law, no matter what the majority says. The whole purpose of the independent judiciary is to be the anti-democratic branch of government.

It would seem, that Judge really is an anarchist after all.

21 Jul
2010

Posted in: In English
By Mikołaj Barczentewicz    No Comments

Is Originalism Libertarian?

[The following text is a longer version of my LewRockwell.com publication]

When one hears Supreme Court nominee Elena Kagan confessing “We are all originalists” during her Senate hearing,[1] one might think that originalism is really in. But even if it is, what does it mean for libertarians? Ilya Shapiro recently suggested that originalism is ”necessarily libertarian.”[2] Is it really so? And what is originalism anyway? Some think that it is about judges abandoning “judicial activism” and accepting the original, libertarian understanding of the Constitution, the meaning the Framers intended to be preserved. It is not that easy though, and if libertarians want to engage in what promises to be a revival of the revolutionary doctrine (particularly disliked by zombies), they should understand both the advantages and limitations of the originalist interpretation of the Constitution. Czytaj dalej >>

30 Jun
2010

Posted in: In English
By Mikołaj Barczentewicz    No Comments

Bryan Caplan on property rights and libertarian legal theory

Bryan Caplan suggests that under libertarian law, racial covenants could operate in the form of home owner association agreements (HOA):

By assumption, A gave/sold limited resale rights to the HOA before he sold to B, so he can’t sell B an unlimited resale right. It’s no longer his to sell. Or to be more realistic, the builder gave the HOA limited resale rights before it sold the homes in the first place, so no owner ever held unlimited resale rights in the first place.

There is one problem with Bryan Caplan’s argument – it presupposes that you can somehow “unbundle” ownership as a legal right.

Obligation not to resale your property without third party’s consent is merely an obligation, which means that you are allowed to sell your property without this consent and only then you have to compensate the third party for breach of contract (assuming that there was one in the first place). The transfer of property rights in question is valid and legal nevertheless.

What prof. Caplan suggests would mean a “real” effect of a contract not to resell, ie. unbundling of this set of rights we call “ownership” and alienating one of them (unrestricted right to resell – ius disponendi). But there are issues with that, and in jurisdictions I am familiar with, it is impossible for private parties to achieve this.

Why should we not allow for such unbundling? Well, standard explanation is that it would undermine the notion of ownership and its social utility – you would never know whether the seller transfers to you “full bundle” or just a “limited option.”