2. Tom W. Bell Libertarian-But Not Originalist!- Constitutionalism 2010 Students for Liberty Southern California Regional Conference October 23, 2010, Malibu, California Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008

3. Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008 Libertarian-But Not Originalist!-Constitutionalism, slide 2, 2010 Students for Liberty SoCal Regional Conference

4. Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008 Libertarian-But Not Originalist!-Constitutionalism, slide 3, 2010 Students for Liberty SoCal Regional Conference

5. Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008 Libertarian-But Not Originalist!-Constitutionalism, slide 4, 2010 Students for Liberty SoCal Regional Conference Where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? Yet that is the most that could ever be said of the Constitution. Lysander Spooner, No Treason 24 (1870) (Ralph Myles Pub., Inc. 1973)

6. Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008 Libertarian-But Not Originalist!-Constitutionalism, slide 5, 2010 Students for Liberty SoCal Regional Conference Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. __ (2010) (forthcoming)

7. Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008 Libertarian-But Not Originalist!-Constitutionalism, slide 6, 2010 Students for Liberty SoCal Regional Conference Look for the plain, present, public meaning; Apply a non-waivable default rule of "good faith and fair dealing "; Care about objective meaning--not subjective intent; Make the plain meaning of text trump "course of performance" (i.e., precedent); and In cases of vagueness, construe the Constitutions terms in favor of individual liberty. If we regard the Constitution like a contract, we should:

8. Conclusion Consensualism interprets the Constitution according to its plain, present, public meaning. It justifies that interpretative strategy as more likely than alternatives to maximize the consent of those governed by the Constitution. Consensualism combines the responsiveness of living constitutionalism with the textual fidelity of orginalism, winning the best of both. Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008 Libertarian-But Not Originalist!-Constitutionalism, slide 7, 2010 Students for Liberty SoCal Regional Conference

9. Introduction I. Nolan Chart II. 2-D Con Law III. Spooner Speaks IV. Consent Theory Conclusion App.: Pledge v. 2008 Libertarian-But Not Originalist!-Constitutionalism, slide 8, 2010 Students for Liberty SoCal Regional Conference Upgrading the U.S. Pledge of Allegiance v. 1954v. 2008 I pledge allegiance to the flagto the laws of the United States of America, and to the Republicon condition that for which it stands,it respect my rights, one Nationnatural, under God,constitutional, indivisible,and statutory, with liberty and justice for all.