Amazon has a nice feature in which one can find old and new copies of books (and other things -- CDs and DVDs too) that are much cheaper than the cover price. This includes old books that are out of print or hard to find, which is how I obtained an interesting collection of William O. Douglas speeches from c. 1960 that include a fascinating discussion of the right to privacy. My mom also bought a couple of old mysteries recently for .01 a piece, $8 total with shipping.
Thus, I obtained Liberty for All [broad view of liberty rights] and Retained By The People [Ninth Amendment] for a fraction of the cover price. To be read later. Still, I glanced at both, and the first book is relevant to recent discussions. The author notes a deep belief that constitutional interpretation should rely on text and its original meaning. The text is broad enough that changing times requires some adaption, but she still focuses on those two things. I dare say, even without reading much (though the attachment to Randy Barnett hints at where she is coming from) that there will be a problem.
This can be seen by the fact she thinks Barron v. Baltimore was problematic. It was written by a ratifier of the Constitution. If he doesn't know what the "original understanding" was, who does? I'm game to those who argue that constitutional principles promote a strongly libertarian system of government. I just don't think trying to convince us the Framers supported a view that would allow courts to strike down fornication laws is a useful device after a certain point. Fine, point out how original principles can be so interpreted.*
But, they were principles of only some, and few took them as far as the author's class of legal theorists argue. They damn "living constitutionalism" as a threat to constitutional liberty, but in effect do it themselves. The LC crowd, after all, appeal to Framers too. Just ask Justice Douglas. BTW, looking into the matter brought up this discussion of "due process" that is relevant to the "common law" Constitution (see also my response to the post linked yesterday):
To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.
In fact, an essay on Dred Scott in the much recommended book Constitutional Law Stories noted such "settled usages" amounted to substantive due process protections, readily accepted by the author of that opinion of the Court when he dissent in that infamous case a couple years later. Justice Curtis is praised by some as a savior of judicial restraint, but judicial restraint is only proper when it follows the duties of the office. This duty includes helping to secure procedural and substantive liberties at times only obliquely referenced in the Constitution itself. An ongoing process, built from past foundations, but upward and onward past them.
To cite Justice Souter once more, see also here.
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* See, e.g., The Godless Constitution for discussion of personal liberty promoted by 18th Century thinkers, or a 1819 ruling (cited with support in 1998) that noted due process secured "the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice." Note the focus on "private rights" and the breadth of power given to the courts by the word "arbitrary." As one commentary noted:
The term "arbitrary" is vague enough in its connotations to give the widest latitude for a judicial censorship. It may mean acts not governed by any fixed rules, or which are capricious, unfair, absolute, despotic, tyrannical, or irresponsible. It is obvious that personal and partisan inclinations will have great weight in determining whether legislative enactments come within one of these indefinite categories.
As Jack Balkin noted at one point, this broad power might scare some, but it has met the test of time. It is not "undemocratic" because a clear majority has accepted and in fact at times demanded judicial power be enforced thusly, though there might be a debate over how it is to be done. A matter that developed over time, even if in some broad (and at some point, so broad it is a bit meaningless) sense it existed at the time of the framing.