Academic

Barnett on Dorf on Living Constitutionalism

By Lawrence Solum

Randy Barnett has an excellent post on Dorf on Living Constitutionalism.  Here is a taste:

The phrase "natural born citizens" is ambiguous. It could be a term of art at the time of the Founding that refers in part to persons born in the United States and subject to its jurisdiction (or something even more particular as described here), or it could have the modern meaning of someone born naturally, i.e. not by cesarean section or in vitro fertilization. No one thinks, including Dorf, that we make this choice based on which meaning we like best. Everyone thinks we must ascertain the original public meaning of this term, whatever it may be. Most of the words and sentences in the Constitution mean the same today as they did then but sometimes the meaning of a specific phrase like "natural born citizen" is no longer part of our lexicon and is archaic. We then need to investigate and discover its original public meaning. By the same token, the original meaning of whole passages of the Constitution, like the Privileges or Immunities Clause of the Fourteenth Amendment, are now ignored because judges thought they got in the way of government power. These passages are now "dead" or, to switch the metaphor, they are "lost."

Here is Dorf's excellent Findlaw column.  My post from yesterday is here.

Full post as published by Legal Theory Blog on March 11, 2008 (boomark / email).