In Hayek Lecture, Judge Eric Murphy considers how Hayek would have resolved current constitutional questions
At the 19th annual Friedrich A. von Hayek Lecture on November 18, Judge Eric Murphy of the US Court of Appeals for the Sixth Circuit examined how Hayek, the Nobel Prize-winning economist and philosopher, would appraise cases concerning constitutional rights in the present moment. In the address, titled “Hayek and The Importance of Levels of Generality in Constitutional Interpretation,” Murphy underscored Hayek’s devotion to a distinct brand of originalism. The lecture was hosted by the Classical Liberal Institute and the Journal of Law and Liberty.
The judge, who served as Ohio’s solicitor general from 2013 to 2019 and was named to the federal bench by President Trump during his first term, discussed a fundamental dilemma as to how narrowly or broadly constitutional rights, written with varying degrees of generality, should be interpreted by the courts. He pointed to a long divide between two competing approaches. The Legal Realist movement, which was influential from the 1920s through the 1950s, focused on the social consequences of legal rules, Murphy said; describing the “policy approach” in Supreme Court jurisprudence during that period, Murphy cited the Court’s 1934 ruling in Home Building & Loan Association v. Blaisdell. In deciding that Minnesota’s Mortgage Moratorium Law did not violate the contract clause of the Constitution, Murphy said, the Court sought to balance the needs of individual holders of contract rights while also safeguarding public welfare.
Under the second approach—which Murphy argued that the Court currently relies upon—tradition is the core principle. “What explains the reemergence of history as a guide?” asked Murphy. “If legal realism was what somebody described it, as the most significant jurisprudential movement of the 20th century, I would say originalism is the most important so far, at least as the early lead for the 21st.”
Watch the full video of the Hayek Lecture:
To illustrate the point, Murphy discussed the Court’s 2024 decision in US v. Rahimi, which upheld a federal law prohibiting individuals with domestic violence restraining orders from possessing a gun. He cited the concurring opinion by Justice Brett Kavanaugh, who wrote that “the first and most important rule in constitutional interpretation is to heed to the text—that is, the actual words of the Constitution—and to interpret that text according to its original meaning as originally understood.”
Throughout the lecture, Murphy considered how Hayek, who lived from 1899 to 1992, himself might have resolved modern legal disputes. He pointed to another example of the Court moving “full circle since Blaisdell”: the 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen. In that case, the justices ruled that the state’s license law for carrying concealed handguns in public places violated the Second Amendment. “I’m pretty confident [Hayek] would’ve liked that one,” Murphy said. “As a general matter, Bruen recognized that the Second Amendment enforced a preexisting yet unwritten right. This would have been essentially Hayek’s rule of just conduct. He would have said that the Second Amendment codified a rule of just conduct developed over many years and an individual’s right to keep and bear arms for self-defense.”
Murphy went on to emphasize Hayek’s perspective on the core pillars of constitutional law: “As [Hayek] put it, ‘Even constitutions are based on—or presuppose an underlying agreement on—more fundamental principles. Principles which may never have been explicitly expressed yet which may make possible and precede the consent in the written fundamental laws.’... Bruen’s reasoning by analogy approach would be also Hayek-type judging,” Murphy explained. “And I say that because he essentially thought that judges should engage in this type of common law reasoning rather than ask about any wishes of a ruler or any reasons of state.”
In his closing, Murphy described the legal terrain that Hayek would occupy today. “The legal realists’ response was to look to policy and social welfare. Hayek could not disagree more with that approach,” he said. “I think he took a more formalist view of a judge’s office than most originalists because he thought…common law was something to be discovered, not made. And the judges formulating the common law rules do no more, and have no power to do more, than to find and express already existing rules.”
Selected remarks from Judge Eric Murphy:
“What’s critical for Hayek is that these rules of just conduct are actually not designed by any human’s will. They are what he called ‘purpose independent’ because a human did not adopt them to achieve any goal. We might not even know, according to Hayek, why they are what they are or their effects on society. And since no human designed the rules, individuals were not forced to follow another person’s will when they complied with them.” (video, 27:30)
“Hayek expressly criticized what he calls ‘an alliance of law with sociology.’… According to Hayek, judges should never ask whether the action taken in fact was expedient from some higher point of view or served a particular result desired by the government. Likewise, a judge cannot be concerned with the needs of particular persons or groups, or with the reasons of state or the will of government, or with any particular purposes which an order of actions may be expected to serve. Rather, Hayek thought that judges should enforce the rules of just conduct even when [the] known consequences in a case are wholly undesirable.” (video, 36:13)
“This goes to what [Hayek] thought the rule of law actually was. And most important for him is that all of these rules of just conduct were general.… The general rules of property law, the general rules of freedom of contract—his view is that these things developed not through anybody’s design, but they served the useful purpose of giving everybody their individual spheres in which they could go do whatever they want and succeed or fail.” (video, 1:19:44)
