The Originalist and Normative Case Against Judicial Activism: A Reply to Professor Randy Barnett

In Restoring the Lost Constitution: The Presumption of Liberty, Professor Randy E. Barnett lays out a bold defense of the theory of originalism in constitutional interpretation. Professor Barnett’s book is perhaps the most important book about originalism since Robert H. Bork’s The Tempting of America. Barnett presents a normative case as to why contemporary Americans should agree to be governed by the original meaning of the Constitution, and, like most sophisticated originalists, he nicely distinguishes between original meaning and original intent. Barnett correctly notes that what really matters in constitutional interpretation is not what the Framers intended that provision to mean but rather what the original language actually meant to those who used the terms in question. In defending original meaning over original intent, Professor Barnett aligns himself with other sophisticated originalists like Robert H. Bork, Antonin Scalia, Gary Lawson, John Harrison, Akhil Amar, and Michael Paulsen. Barnett’s book claims to use the exact methodology those sophisticated originalists use, and he claims that using that methodology leads us to the conclusion that the Constitution mandates libertarianism at both the state and federal level.