At Volokh Conspiracy, Joel Alicea has this reply to Randy Barnett's response to his (Alicea's) essay in National Affairs: “Yes, you are imperiling originalism:” A response to Professor Barnett. After noting some areas of agreement he continues:
That we ask the same questions does not mean that we reach the same answers. I believe the obligation of the living to obey the dead inheres in a regime of written law, especially one based on notions of popular sovereignty. But, more fundamentally, I think it inheres in the nature of an ordered society, which is man’s natural state and which comes with attendant obligations and duties to our forebears. Barnett misunderstands me, then, when he says that my purpose in the essay was to “defen[d] constitutional originalism against the common legal academic trope that it consists of adherence to the ‘dead hand of the past.’” My purpose was not to defend originalism against the dead hand of the past; my purpose was to justify the dead hand of the past. Or, as the title of the essay terms it, the rule of the dead.
This is a foundational disagreement between us. Barnett’s theory begins by rejecting the rule of the dead; he disclaims any right of the dead to bind the living. Rather, Barnett thinks that the living—quite apart from any duties to the dead—should obey the past only insofar as (1) the living affirmatively consent to such authority or (2) the decisions of the dead are necessary and proper.
And further:
These disagreements have significant consequences for our respective theories of originalism. Barnett’s presumption of unconstitutionality is the most obvious example of that divergence. As I say in the essay, “Barnett would grant power to the judiciary that goes beyond the original meaning of the Constitution (the past) in the name of the libertarian individualism that sustains his theory (the present).” The implications of a presumption of unconstitutionality are quite far-reaching, and it will generate different outcomes in many cases.
Posted at 6:10 AM