Concerning Originalism

Randy Barnett [*] comes up with an interesting argument for one version of Constitutional originalism.

But he seems to gloss over one small point. If he’s right, then the Constitution we have actually been living under for the couple of centuries differs in important ways from the Constitution as drafted, which he claims is the only real Constitution because only an unchanging text can bind officials.

So what are we supposed to do now, throw out all the precedents and start fresh? How is anyone supposed to know what the law is if the judges ignore precedent? Even if it were true that living by a document of unchanging meaning is the only guard of liberty, it’s hard to see how to get there from here.

Barnett also needs to explain how it is that a country living under (on his account) effectively no Constitution at all has done so well for itself.

Update Barnett responds.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: