Barnett, Bork, and Originalism:

(Originally posted on Freespace)

I recently visited my alma matter, Temple University’s Beasley School of Law, to see Randy Barnett present a lecture to Temple’s Federalist society. Basically Barnett gave an overview of his new book, Restoring the Lost Constitution. The lecture was excellent. I ordered the book and am waiting for it to come by mail—can’t wait to read it.

Barnett is an important figure because he represents what I think to be “true” constitutional originalism—not the Robert Bork kind. And someone—a heavyweight like Barnett—needs to take concept of “originalism” back from the Borks of the world.

Barnett drafted a brief on behalf of the Institute for Justice for the winning side in the Lawrence v. Texas case. That alone is information enough to help us appreciate the difference between Barnett’s and Bork’s originalism.

Barnett’s originalism, as opposed to Bork’s, is far more in line with the ideals—that is, the original principles—that this nation was founded on. As Tim and others have reminded us at great length, this nation was founded on the principles of the Declaration of Independence. In other words, on “natural right.” Yet, in Slouching Towards Gomorrah, Bork explicitly rejects the Declaration and in fact reacts to it as Dracula does to a cross. An originalist rejecting the original principles of natural right that this nation was founded on. Huh? Some originalist.

Bork is actually part of a school of “originalists” who believe in using the formalism of the Constitution not necessarily to secure the Declaration’s natural rights, but often to subvert them. As Thomas West describes this ideology, this form of “constitutionalism requires fidelity to the Constitution, to the institutions and mores created by the Constitution, and a willingness to turn away from the principles of the Declaration, so that they can be kept in check.”

These “originalists” reject that the “natural law” encapsulated in the Declaration is part and parcel of the “organic law” of this nation and that federal courts may properly apply or invoke it.

Did our Founders reject natural rights?