Randy Barnett, Original Intent, and Logical Consistency

I was checking out Volokh Conspiracy [unlinked sites are listed in the link roll], which has a nice new look, and there was more from Randy Barnett concerning his debate with some conservative leaning bloggists (and law professor sorts) on his libertarian reading of the Constitution. Barnett recently wrote Restoring the Lost Constitution, and I sat in a few months ago when he was in town promoting it. It was an interesting mini-lecture, and he was personable enough and all, but there did seem to be something a bit off about the guy.

Partly, perhaps, it was that he was a bit too sure about his rather creative reading of the Constitution, which he assures us is loyal to "original intent." The professor on hand to comment on his remarks basically said the same thing -- interesting stuff, but it isn't as clear as you say. Legal Fiction has written some about the problems with this method, including its somewhat arbitrary picking and choosing to determine original meaning. I get the same feeling when Barnett tries to explain that original intent can clearly show how the homosexual sodomy case was rightly decided, while pointing out how certain rulings by Chief Justice Marshall (a ratifier!) helped us on the road to the "lost Constitution" (e.g., where the Ninth and Tenth Amendments are too often woefully ignored, which is quite true). Therefore, though I think his writings are thought provoking, I take them with a grain of salt.

His discussion on the blog of the Establishment Clause is but an example of why I do. It is quite true, as he notes, that the First Amendment on its own did not stop states from establishing churches. The Fourteenth Amendment limited state action. On the other hand, I question his limited interpretation of how the clause restrains the federal government. After all, James Madison himself read it quite broadly. Likewise, Barnett as do others, seems to forget that it really must be read along side the Free Exercise Clause (and in his eyes, surely, natural rights protected by the Ninth Amendment) and surely after the 14th, the Equal Protection Clause. [Overall, equal protection aka anti-class legislation is a constitutional value. It is a "self-evident" truth.]

If you benefit a particular church, you are favoring one religion over another, and in some way hindering free exercise. Likewise, the First Amendment speaks of laws "respecting" establishment, which broadens things considerably. Just what is unclearly unconstitutional about, e.g., a law that makes national motto (statement of principle) a sectarian one? Overall, I find arguments that the Fourteenth Amendment does not "incorporate" (apply it to the states) the Establishment Clause rather besides the point -- I cannot think of a situation where free exercise, equal protection, or perhaps basic liberty interests would not be violated if a state established religion in some fashion. At any rate, a constitutional system in which a homosexual sodomy ban is clearly not a matter of state legislative power, but a weak establishment of religion might be is one I have some problem with.

A final comment. Barnett is somewhat in the league of Log Cabin Republicans in that his libertarian values contrasts with his political leanings. He has in the past quoted with respect comments bashing the so-called libertine '60s generation (apparently, aka rabid Dean supporters ... Dean, whose time as governor of Vermont suggests he would be the most economically libertarian of the bunch). Likewise, Professor Barnett has made it clear that he wants President Bush to be re-elected. This is just weird.

Barnett recently was (for the time being) successful in challenging federal attempts to limit the right of medicinal marijuana use in California. He submitted a strong brief in support of overturning the law in the homosexual sodomy case. And, in general, promotes a libertarian philosophy that just is not upheld by those currently in power. [This in various ways also applies to how the war is being carried forth, if not the war in general.] I would dare to say that even economic libertarians would be somewhat upset at their actions, some attempts at lessening federal regulations notwithstanding. Surely, President Kerry would be no prize in his eyes, given his liberal tendencies. All the same, in many ways, he would be better than the current occupant. This is another situation where the particular stance of a person appears somewhat arbitrary given their general ideological leanings.

[I saw this arbitrariness recently during a debate involving homosexual marriage, one sponsored by the conservative American Enterprise Institute. Jonathan Rauch promoted his argument that gay marriage actually will be beneficial to heterosexual marriage overall. One rebuttal was just based on sectarian religious belief, but the other was only partial, and ultimately based on pragmatic issues. It was overall fair, but (as is often the case) the person just couldn't wrap his hand around the word "marriage." When his own son got married, it seemed to him a special, almost mystical event. For some reason, if his son wanted to marry a male, it would be diminished in his eyes. Why exactly? A certain arbitrariness, the same sentiment that drives certain people to support the President, even though reasonably they should know he is bad for their interests.]

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Other: The Son's Room is a powerful Italian film dealing with family grief when the teenage son dies. I have not read the book, but the TV movie version of A Wrinkle In Time was pretty good with good lead performances and nice special effects. Also, to update an ongoing story, the governor commuted the sentence of Osbaldo Torres. Torres was a defendant in the World Court lawsuit involving consulate notification. See here for discussion; in particular the top comment suggests the pardon might harm the establishment of a clear precedent in such cases.