Tuesday, October 30, 2007

A Good Defense of Originalism

I tend to be somewhat skeptical whenever people start talking about "originalism", especially when the originalism in question seems to dovetail nicely with the policy positions of the person defending said method of constitutional interpretation. But Randy Barnett has put together a cogent defense of what he refers to as "original public meaning originalism". I especially liked the following:

Notice that, while "justice" is the ultimate normative justification for originalism, the intermediate steps are crucial. If a written constitution is valuable for the reasons identified--to define and police the principal-agent relationship--then one cannot simply dispense with it in pursuit of greater justice. More precisely, agent-judges cannot on their own authorize agent-legislatures to exceed their proper powers as defined by the written Constitution in pursuit of greater "justice" than that document provides.
People give me crap on a regular basis for being overly-focused on process; this is exactly the kind of response I would provide if I were a little more articulate.

The one, minor critique I would levy against Randy's defense is that he doesn't really address how one goes about determining the Constitution's original public meaning. He does get close to the issue in the final paragraph; it sounds like something he's saving for another post.


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