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[Randy Barnett, July 2, 2005 at 11:33am]
Three Lessons for the Great Debate About to Begin: I recall very well the debates over the nominations of Robert Bork and Clarence Thomas to the Supreme Court. Both featured the most elevated public discourse over constitutional interpretation in my lifetime. Of course, both nominations were also marred by ugly personal attacks and false charges. For the upcoming nomination, we can expect both types of discourse. To that end, some may wish to review the debate I recently had with Cass Sunstein over at LegalAffairs.org. Cass and others such as Jeff Rosen have promoted the trope "Constitution in Exile" to describe those who favor enforcing the whole Constitution according to its original meaning. The alternative is to enforce only portions of the text according to whatever meaning yields "good" results.
It is useful to review this debate to see the difference in our approaches so one can better track and participate constructively in the forthcoming debate. My approach focuses on restoring portions of the "lost" Constitution that the Courts have long ignored--such as the Commerce Clause, the Necessary and Proper Clause, the Second Amendment, the "public use" portion of the Takings Clause, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Cass consistently focused, not on the text of the Constitution, but on a list of results--either good results he favored preserving or bad results he contended that the fictitious "Constitution in Exile movement" wanted to achieve.
LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.
LESSON TWO: Watch the switch from meaningful scrutiny to extremely deferential "rational basis" scrutiny, as a means of continuing to ignore portions of the text.
LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.
