Capitalism, Socialism, and the Constitution

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Given the growing popularity of socialism in the United States as reflected in the positions taken by certain candidates in the presidential campaign of 2020, I have decided to republish, without revision, the following essay from 2001. To borrow a phrase from one who wrote powerfully about such matters, I dedicate this essay to the socialists of all parties. The essay begins by recounting a brief conversation that I had with an unidentified member of the Supreme Court of the United States, whom I called Justice Nemo, regarding the collapse of Soviet communism. Justice Nemo was in fact the late Chief Justice William Rehnquist. The essay then examines how the evolutionary theory of law would yield a different reading of the Constitution from that which currently flows from the prevailing, imperative theory of law. The evolutionary view of law, most closely associated with the writings of Friedrich Hayek, builds upon objective knowledge. Under that view, the legitimacy of law rests on its resemblance to truth in an epistemological sense, and the role of judges in constitutional adjudication resembles the discovery of objective knowledge. In 2001, however, the Supreme Court and constitutional scholars did not merely eschew an evolutionary view of law that builds upon objective knowledge. Rather, they constructed doctrines and models of constitutional interpretation that are nonfalsifiable. Nonfalsifiable rationales for constitutional decisions tend to increase the size of the state, which derivatively increases the power and prestige of the Supreme Court, the lower courts, and the legal clerisy in which law professors rank highly. My 2001 essay considered how the Judiciary’s role would change if judicial review were predicated on objective knowledge. If laws based on demonstrably false premises would be struck down as unconstitutional, individual liberty would likely increase relative to the state.

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J. Gregory Sidak, Capitalism, Socialism, and the Constitution, 4 Criterion J. on Innovation 801 (2019).