The Right Coast

November 14, 2005
Libertarian Strands in Sam Alito's Jurisprudence
By Mike Rappaport

Eugene Volokh and Ilya Somin have each published an op ed arguing that there are significant libertarian elements in Judge Alito's jurisprudence. He is not another Scalia, who may be more conservative than libertarian.

I sometimes wonder what the basis of libertarian jurisprudence is. Some versions come in the clothes of originalism, whereas others are dressed as nonoriginalist activism. In fact, Randy Barnett's views have been dressed both ways over the years.

Somin's piece mentions but does not attempt to justify (which is entirely appropriate in an op ed) the libertarian approach to constitutional interpretation:

In most judicial cases, the correct result is sufficiently clear that differences in judicial philosophy are unlikely to affect the outcome. However, they often do matter in cases where the issue at stake is controversial, and traditional legal materials do not strongly favor one side or the other. While judges should not simply vote for whatever outcomes because they prefer them on policy grounds, a libertarian orientation helps sensitize jurists to the fact that the Constitution is meant to constrain government, not just empower electoral majorities, as some conservatives claim. Here Alito's libertarian streak and his differences with Scalia may have an impact.