Academic

Barnett on Dorf, Part Two (More on Living Constitutionalism)

By Lawrence Solum

Michael Dorf's post entitled,  Can't We All Just Get Along?, has provoked a reply by Randy Barnett.  Here is a taste of Barnett's post:

I think Dorf is being completely open and honest about his views about constitutional interpretation and, for that, I commend him. For him it is all about results. If the text and precedent reach the right results, follow the text and precedent. If the precedent reaches the right results and the text does not, follow the precedent and trump the text. But if the precedent reaches the wrong results, then come up with whatever "interpretation" of the text reaches the right result and discard the precedent.

This approach is everyone's first choice if they and those who agree with them are in power. But is is their last choice if those who disagree with them are in power. Everyone's second choice should be to follow the meaning of the Constitution and construe it in ways that do not contradict that meaning even where this may lead to some results of which you object AND expect your political opponents to do the same.

Barnett's move--to argue for originalism as a constitutional "second best"--is right on target.  Read both Barnett and Dorf.

Full post as published by Legal Theory Blog on March 12, 2008 (boomark / email).