Quote of the day—Randy Barnett

If all this evidence of original meaning is not enough to persuade you, then you are simply not persuadable by evidence.

Randy Barnett
June 5, 2015
More evidence that the “judicial power” included the power to nullify unconstitutional laws
[Via a Tweet from Alan Gura who says, “Slaaaaaam dunk.”

Barnett’s article is about the power of the judiciary, in general, to declare laws “null and void”. Some people are apparently questioning this and Barnett supplies “Slaaaaaam dunk” evidence showing they are wrong.

The quote above was in reference to those people but it is also applicable to people who advocate for infringement upon the right to keep and bear arms.—Joe]

11 thoughts on “Quote of the day—Randy Barnett

  1. The reasoning in Marbury v. Madison is quite persuasive, and worth reading; it’s the original statement that “if it’s not constitution, it is not law”.
    Interestingly enough, in some countries (Holland is the one I know) the constitution specifically forbids the courts judging the constitutionality of laws. As far as I’m concerned, such a clause reduces the document to a fake constitution — one that is obeyed only when politicians feel like it, without even the all too infrequent pushback the compliant US courts offer.

  2. Little-known fact (outside of these circles, anyway): “Jury nullification” is a real thing, too.

    It doesn’t take a judge or a panel of judges to declare a law “null and void”. Any citizen jury has that same power; they just don’t know it, and the prosecutor (i.e. a part of “the system”) is not going to tell them.

    • Great point. There is a wonderful essay that I would call essential reading: “An Essay on the Trial by Jury” by Lysander Spooner. It was written in the context of the jury acting against slavery, but it’s broader than that and it goes way back in history to make its argument.

    • With a jury though, the law is not really “nullified” but for that one, specific case. The law remains, to torment other innocents.

    • Absolutely, and if a prosecutor gets even a whiff of a notion that you’re likely to be one of those unruly sorts that would suggest jury nullification during deliberations, you’ll never be seated on a jury, either.

  3. With Progressive authoritarianism, it’s never been about what is, but what one wants it to be.

    • Indeed, spousal and child abuse is more prevalent among people who are living together without what used to be referred to as “benefit of clergy”. But it has to be pitched as spousal abuse rather than co-habitant abuse because that family link has to be weakened so every woman can experience it and so vote appropriately.

  4. Speaking of evidence of original meaning, I understand the Constitution to be a CONTRACT, with all the rules of interpretation from Contracts imported. No one considers a contract one signs nowadays (say an automobile note or a mortgage) to be a “Living Document” subject to reinterpretation based on which party is the stronger. These same people who call the Constitution a living document would raise holy hell if their home mortgage were treated the same way by the lenders.

    • Indeed, and Prof. Barnett’s book “Restoring the lost Constitution” uses that analogy with the rule of interpreting contracts extensively.
      Incidentally, this means that the phrase to use is not “original intent” (which, arguably, cannot be known) but rather “original meaning” (what the text meant to ordinary people at the time it was approved).

  5. What is the difference between null and void? Why do lawyers feel the need to use both words?

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