Randy Barnett's Video on Originalism

 Here are a few of my thoughts and notes on Prof. Barnett's talk:

1. The Constitution is not the law that governs us. It "is the law that governs those who govern us." --Randy Barnett 

Those who govern us ought to follow the law that governs them. Each and every person who receives power to govern us has taken an oath to abide by the Constitution. There is "100% consent" by those who govern us to abide by the Constitution. Not to abide by the Constitution as they decide to change it, or as they wish it to be. It would be an "oath to nothing" if Justices swore to abide by their own ideological preferences.

Here by the way is the oath federal judges take:

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

2. The meaning of the Constitution must remain the same until it is changed by the amendment process. The meaning is "fixed" at the time the text is enacted (ratified). Normative principle--Constitutional actors are (and ought be) constrained by that original meaning.

3. New originalism, original meaning originalism: Not framer's intention ("What Would James Madison Do"), but original public meaning of the text as understood by the society that ratified it. Public meaning, communicative content, not subjective intent of James Madison.

4. Interpretation vs. construction. Interpretation seeks to ascertain the original communicative content. Construction is putting that content into legal effect, applying the communicative content to cases that arise. Originalism tells us that whatever doctrines the Court comes up with should be consistent with the original meaning of the text. The original public purpose also should constrain courts. Constitutional doctrine can evolve (change) so long as it is faithful to the original meaning and purpose of the text.