Monday, June 25, 2018

Originalism Debate Video Available

by Michael Dorf

I'll probably be back a bit later today with a post on one or more of the cases the SCOTUS is expected to hand down this morning. Meanwhile, the video from my debate on originalism with Prof. Randy Barnett (which I previewed here) is now available from the Reason magazine YouTube channel. If you prefer to listen only, you can also get it as a podcast here or through iTunes. A summary can be found at the SoHo Forum website. There is a warmup act--a "libertarian comedian"--with the actual debate starting at the 12:12 mark (of the video).


Shag from Brookline said...

I'm planning watching the debate piecemeal, but could not resist watching the "libertarian comedian," who was okay but not Rand-y. This took place before Trump's due process challenge on the southern border, unfortunately, so it was not available for the warmup. It would have been interesting, had it been included, to hear the audience response. The makeup of the audience was not clear from the warmup audience reaction. Maybe libertarians' senses of humor are mostly Rand-y, suggesting perhaps that the debate fix is in for Barnett as Reason seems to have a "Winner" complex in the manner of Trump, but without rhyme.

I'll pick up later with the debate that may confirm that The Federalist Society is modeled on the Anti-Federalists of the 1787 Constitution who apparently did not go along with The Federal Papers trio of Federalists. But I can understand why they didn't call it the more aptly "The Anti-Federalist Society."

Shag from Brookline said...

I watched the debate straight through and its was enjoyable. Randy did not self-identify as a New Originalism originalist but the question he defended is basically that of the New Originalism. However, the New Originalism's "construction zone" did not surface during the debate nor in the Q & A. Mike did bring up earlier versions of originalism that Randy seems to rely on from time to time, in support of Mike's position that the answer to the question should be "No." I thought this was effective. But why wasn't the "construction zone" raised, as that is a vulnerability of original public meaning originalism recognized by Randy in his and Evan's recent article on applying the "spirit" of the entire Constitution in construing provisions in the "construction zone." An earlier post by Eric at this Blog detailed the problem with Randy and Evan's article.

My ears perked up when Randy brought in the Declaration of Independence perhaps suggesting its great importance in understanding the original public meaning of the Constitution, stressing the DoI's "life, liberty and pursuit of happiness" even though the Constitution did not pick up the "pursuit of happiness." Would its inclusion have made the Constitution a libertarian document - or more likely a democratic Constitution?