Quote of the day—Randy Barnett

Because I think the meaning of the text of the Constitution should remain the same until it is properly changed by amendment, and that judges have a constitutional duty to invalidate laws that conflict with that meaning, I believe the President’s choice of Brett Kavanaugh—who is otherwise highly qualified—should be confirmed. If Democrats disagree they should specify the approach they think is better.

If their “judicial philosophy” is that a judge should simply reach all the outcomes that a progressive Democrat would like the Supreme Court to reach, they should candidly say so. If they believe that the precedents they like—like Roe v. Wade—are sacrosanct, but those they detest—like Citizens United—are to be discarded, they should identify how we know which precedents are binding and which are not.

Failing that, they too should vote to confirm Brett Kavanaugh.

Randy Barnett
The Case for Kavanaugh
October 1, 2018
[I agree.

H/T to David Hardy.—Joe]


5 thoughts on “Quote of the day—Randy Barnett

  1. Agreed, although I do wish that Judge Kavanaugh was less a fan of executive power and more of a fan of the 4th Amendment.

  2. Barnett makes a common mistake in suggesting that the Democrats have a principled approach to jurisprudence, beyond a will to power. They don’t.

    • I think he knows this very well and is politely pointing it out. People drawing their own conclusions from evidence and hints provided by others remember it better and are “more convinced” than those who merely read the conclusions advocated by others. There is a reason there are so many proofs in math classes.

      I do this when debating gun rights sometimes, “There is no convincing evidence that gun regulations reduce violent crime, so what is the real reason for these infringements on the right of the people to keep and bear arms?”

  3. Prof. Barnett looks at this stuff pretty well. I bought his book “Cracks in the Constitution” a while back, it’s excellent, I recommend it.
    A fairly substantial part of it is an analysis of the question “why should today’s citizens consider themselves bound by a document they were not party to”?
    The other big part is on how the Constitution should be read. The 9th Amendment figures prominently in that discussion. Also his own background, which is contract law — there the answer is simple, a contract means what the words meant to reasonable people at the time the contract was agreed to. Same here: the articles of the Constitution have the meaning those words were understood to have at the time of their ratification. This is how “original intent” evaporated as terminology, to be replaced with “original public meaning”. That’s correct, because intent is not knowable, but original public meaning is easy to ascertain.

    • This has long been my conception of the Constitution. An agreement between the states and the people to appoint an agent for some tasks the people have delegated to the states. We only need Constitutional Law as a separate class in Law School because the group Mark Levin refers to as the Politburo of the United States has undertaken such a convoluted and byzantine method to interpret the Constitution for the cases that come before it, the language in the Constitution might as well be that used in the Koran compared to the plain words of Arabic spoken by the Arabs of the time.
      I am waiting for the opportunity to tell my Leftist brothers and their Stalinist wives (I’m not speaking metaphorically; I actually have two of each) that they would raise holy hell if they were on the receiving end of a reinterpretation of their mortgage contracts as the Constitution is changed. Say, perhaps, a modification of the One-Action rule?

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