At Liberty Law Forum, two additional responses to Ilya Somin's essay How Constitutional Originalism Promotes Liberty:
Hadley Arkes: What “Liberties” Does the Constitution Protect?
Peter Lawler: Originalism and Legislative Deliberation
Here is Professor Lawler's conclusion:
Liberty, in truth, has to be understood, even under the law, as more than the negative liberty of isolated individuals. For liberty to be sustainable, we need some shared understanding of what our freedom from political domination is for. If Americans have reasonably competing views of what marriage (or abortion) is, and if neither the Framers of 1787 nor the authors of the Fourteenth Amendment had any thought at all about making same-sex marriage (or the pro-choice position on abortion) a constitutional requirement, then liberty is best protected by legislative deliberation and compromising accommodation.
All in all, it’s fine for Somin to write to maximize his personal preference, but we have no reason to trust him that our Constitution means simply what he says he does. He should have a respected place (thanks to our Framers’ true intentions) in our complicated process of political deliberation, in which the Constitution is never simply what the Court at any particular moment says it is.
Posted at 6:46 AM