Welcome to the new originalism: A comment on Jack Balkin's living originalism

Jerusalem Review of Legal Studies

Volumn 7, Issue 1, 2013, Pages 42-48

  Barnett, Randy E ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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[No Author keywords available]

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EID: 84901257876     PISSN: 22197117     EISSN: 22197125     Source Type: Journal    
DOI: 10.1093/jrls/jlt001     Document Type: Note

References (16)

1. JACK M. BALKIN, LIVING ORIGINALISM (2011).
2. RONALD DWORKIN, LAW'S EMPIRE (1986).
3. It is difficult to discuss our disagreement on the commerce clause here because if you are an originalist, these are disagreements that are handled by appealing to evidence. To be convincing, a more comprehensive presentation of evidence is required than is possible in this brief comment. See Randy E. Barnett, Jack Balkin's Interaction Theory of "Commerce", 2012 U. Ill. L. REV. 623 (2011).
4. See Randy E. Barnett, Underlying Principles, 24 CONST. COMMENT 405 (2007).
5. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980). Indeed, in this article, Brest first coined the term "originalism."
6. See Randy E. Barnett, The Relevance of the Framers' Intent, 19 HARV. J.L. & PUB. POL'Y 403 (1995) ("I shall discuss two reasons to consult the Framers. The first views the Framers as wardens; the second as designers or architects.").
7. See LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY (rev. ed. 1860)
8. THE COLLECTED WORKS OF LYSANDER SPOONER (Charles Shively ed., 1971).
9. For a discussion of the constitutional abolitionist movement of which Spooner was a part, see Randy E. Barnett, Whence Comes Section One? The Abolitionist Origin of the Fourteenth Amendment, 3 J. of Legal Analysis 165 (2011).
10. See eg WENDELL PHILLIPS, THE CONSTITUTION, A PRO-SLAVERY COMPACT (1845).
11. See Dred Scott v Sandford, 60 U.S. 393 (1857).
12. It is possible also to distinguish Spooner's approach from the best modern version of original public meaning originalism, for example, with regard to his stress on the "legal" meaning of the text. But that distinction, if warranted, was not apparent to me when I first read Spooner and was influenced by him to reconsider originalism. See Randy E. Barnett, Was Slavery Unconstitutional Before the Thirteenth Amendment?, Lysander Spooner's Theory of Interpretation, 28 PAC. L.J. 977 (1997).
13. I want to make it clear that as someone who takes contracts and contractual consent very seriously, I do not think the Constitution qualifies as a contract. However, it is a writing and shares some attributes with written contracts. Among these is that there is a semantic, objective public meaning of the text that is distinct from the subjective intentions of the people who drafted the document. On this distinction, see RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 14-25, 40-45 (2004).
14. Randy E. Barnett, The Misconceived Assumption About Constitutional Assumptions, 103 NW. U. L. REV. 615, 633, 641, 648-50 (2009).
15. See KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, & JUDICIAL REVIEW (1999).
16. See, eg, John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A NewTheory of Interpretation and the Case Against Construction, 103 NW U. L. R EV. 751 (2009).