I just finished reading Randy Barnett’s book Restoring the Lost Constitution: The Presumption of Liberty. While the book has received its share of criticism (see here), including by one of the CockleBur contributors (see here), I found the book very interesting. I cannot say that I agree with all of it or even most of it, but there was one part that I agreed with wholeheartedly.
But before I get to it, let me explain my legal perspective. I rarely study constitutional methodology. For the most part, my study of law has been concerned with particular legal claims and precedent, rather than some overarching methodology for interpreting the entire constitution. When I have studied methodology, I have found a fair number of them contain standards of interpretation that seem designed to cause more confusion than understanding. Also, it’s hard to take these methods seriously; I have studied judges long enough to know that there are many cases where the judge’s methodology gives way to personal preference, especially personal political preferences (for example, Justice Scalia’s strong originalist belief in federalism did not matter in Bush v. Gore, and Justice Stevens’ belief in strong free speech rights did not matter in Texas v. Johnson).
That being said, I am finding methodology more interesting these days not only in the law but in other areas of my life. And while I have not arrived at any conclusion about the best methodology, I must say I kind of like the journey.
Now back to Restoring the Lost Constitution. The area of Professor Barnett’s book that I found most persuasive is his belief in the “writtenness” of the Constitution. Under this view, the whole reason we have a written Constitution is to lock in particular constraints on government. In other words, we have written laws so that we are not making it up as we go.
I think a lot of methodologies pay lip service to following the text. Surely the “living constitution” method and Justice Scalia’s originalism have succumbed to this at times.
This is what Barnett had to say: