Book Talk: A local law school (sponsored by the school's Federalist Society, so I got to see a couple members of that "infamous" organization ... they look so innocent) provided a chance to check out in person Randy Barnett, the libertarian law professor that is often found blogging over at the Volokh Conspiracy [as an aside, Jack Balkin has some good stuff lately]. He is promoting his new book Restoring the Lost Constitution: The Presumption of Liberty.

Barnett's argument is that the courts (and government in general) have "redacted" key parts of our Constitution such as narrow enumerated powers, the Ninth and Tenth Amendments, and the Privileges and Immunities Clause, and therefore has not properly protected our liberty. This was always a problem, but was especially the case after the New Deal limited the reach of the courts in favor of expanded government. He would allow courts, therefore, a large degree of power to in his view return us to the original meaning (public understanding) of the Constitution, which he believes is broad but fairly easy to understand. It's just a question of having the wherewithal to stick to it.

It's an interesting and (especially for a person friendly to a broad view of liberty) appealing point of view. The professor on hand to comment, however, made a good point noting that the words of the Constitution (Barnett is a big fan of a written Constitution, which in his view helps restrain government actors) isn't so easily read ... heck even the age to be President might some day be read to symbolize "maturity." Furthermore, giving courts the power to determine what is "rightful" is rather a broad diminishment of democratic power, especially since the rules of contracts and torts (etc.) that Barnett appeals to are somewhat imperfect. Still, Barnett agrees his view is "controversial," and there is a lot to recovering various chunks of the Constitution that are now mostly ignored (e.g. state power over medicine, such as medicinal marijuana). Anyway, he is a critic of the current "Eleventh Amendment" jurisprudence (many libertarians are, since it makes states immune from many suits they feel states should be liable for under basic tort rules), so his version of original intent is not all that bad!

Interesting talk [crafty too ... he used a truly rambling question to state his opinion on some matter, much like those running for president now are doing], and it might just lead me to buy his book. As he noted, that's the important thing, right? I would note as a final thing that if Chief Justice Marshall cannot be trusted to fully interpret the Constitution, partly via decisions that James Madison himself wasn't too upset about, it can't be as straightforward as he suggests. More evidence perhaps that even his watered down version of original intent has problems. I will leave the final judgment open though until I read the book! Fair is fair.

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There is, from the amici on one side, an implacable determination to retain some distinction, however trivial, between the institution created for same-sex couples and the institution that is available to opposite-sex couples. And, from the amici on the other side, there is an equally implacable determination that no distinction, no matter how meaningless, be tolerated. As a result, we have a pitched battle over who gets to use the "m" word.

-- from a dissent of an advisory opinion telling Massachusetts legislature that a recent holding striking down a ban on gay "marriage" cannot be solved by giving gays all the state benefits of the institution, but not call it "marriage."

Now, I might not be able to speak for the group in question, some of whom unsurprisingly want truly equal rights, but I tend to agree. When the opinion (4-3) was originally handed down, I thought at least one of the majority would be satisfied with the Vermont "civil union" solution. [See here why perhaps this was not possible.] After all "marriage" has symbolic significance, so applying the term itself (not the benefits thereof) might be legitimate, especially given many other states and the federal government differentiate.

The majority is quite right that this is some sense still supplies a stigma on homosexuals, but it is one largely out of the state's hands. And, though the court cannot look at things pragmatically in all cases (the law is the law, even if it's hard), they are really making things difficult politically for the "good guys," and I think it's a bad idea. True equality needs time to grow. Besides, in theory the test was "rational basis" ... it was somewhat debatable, but given state law and practice very defensible, to strike down the blanket ban. Striking down a label, largely symbolic but also (and this is key) stating the facts as they are in our current legal climate, is something else. I am left with the feeling this time the court's ruling was ill advised.

[On the other hand, as noted here, Washington D.C. has one of the higher concentrations of homosexual households in the nation ... too bad it also has one of the highest concentration of idiots as well.]