Constitutional Interpretation: An Originalism for Nonoriginalists

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Popular Sovereignty ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Original Meaning ◽  
Lock In ◽  
Constitutional Legitimacy

This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.

Restoring the Lost Constitution

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Supreme Court ◽  
Gravitational Force ◽  
Fourteenth Amendment ◽  
Popular Sovereignty ◽  
Original Meaning ◽  
Commerce Clause ◽  
The People ◽  
The Supreme Court ◽  
The One ◽  
Constitutional Legitimacy

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

Constitutional Construction: Supplementing Original Meaning

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Constitutional Interpretation ◽  
Original Meaning ◽  
The People ◽  
Constitutional Construction ◽  
Constitutional Meaning ◽  
Constitutional Legitimacy

This chapter explains how constitutional interpretation, originalist or otherwise, does not always produce unambiguous rules of law that can be applied to cases. The Constitution requires more than originalist interpretation to be applied to cases and controversies. When interpretation has provided all the guidance it can but more guidance is needed, constitutional interpretation must be supplemented by constitutional construction—within the bounds established by original meaning. The chapter first considers the importance of construction to constitutional legitimacy before showing how construction fills the unavoidable gaps in constitutional meaning when interpretation has reached it limits. It argues that it is necessary to “construe” the Constitution in ways that effectuate its purposes but that do not contradict its original meaning. Constitutional constructions that are consistent with original meaning should be chosen to enhance the legitimacy of the laws that are going to be imposed on the people without their consent.

The Fiction of “We the People”: Is the Constitution Binding on Us?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
United States ◽  
United States Of America ◽  
The United States ◽  
Popular Sovereignty ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish this Constitution for the United States of America.” The founders declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. To understand what constitutional legitimacy requires, the chapter first considers what it means to assert that a constitution is “binding” before making the case that “We the People” is a fiction. More specifically, it challenges the idea, sometimes referred to as “popular sovereignty,” that the Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” It argues that the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution's legitimacy.

Why Care What the Constitution Says?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Police Power ◽  
Original Meaning ◽  
Commerce Clause ◽  
Ninth Amendment ◽  
Constitutional Legitimacy ◽  
The U.S

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.

Part IV Federalism, A Federalism in Canada, Ch.20 The Spending Power in Canada

2017 ◽  
Author(s):  
Kong Hoi L
Keyword(s):  
Federal Government ◽  
Constitutional Law ◽  
The Political ◽  
Federal Spending ◽  
Constitutional Interpretation ◽  
Middle Ground ◽  
Division Of Powers ◽  
Constitutional Legitimacy

In this chapter, I will argue that the Canadian Constitution authorizes the federal government to spend in areas of provincial jurisdiction and constrains the scope of this power. I will, moreover claim that effective enforcement of these limits requires that the judiciary recognize its institutional limits and that the political branches act with restraint. The arguments advanced will seek to occupy a middle ground, between proponents of an unlimited spending power and critics who would bind federal spending to the limits imposed by the legislative division of powers, strictly interpreted. In staking out this ground, I will undertake an approach to constitutional interpretation that closely examines the sources of constitutional law and carefully considers issues of institutional competence and constitutional legitimacy.

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