Randy E. Barnett (Georgetown University Law Center) has posted two interesting originalist-oriented essays on SSRN.
The first is Interpretation and Construction (Harvard Journal of Law and Public Policy, Vol. 34, 2011) on SSRN. Here is the abstract:
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In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited utility in formulating a theory of construction, other than in requiring that original meaning not be disregarded or undermined.
This essay elaborates and defends the importance of distinguishing interpretation from construction for the benefit of those who may not be entirely familiar with the distinction between these two activities. Although the author begins by offering definitions of interpretation and construction, the labels are not important. Both activities could be called “interpretation”— for example, something like “semantic interpretation” and “applicative interpretation.” Still, the terms “interpretation” and “construction” are of ancient vintage and, although not always precisely defined in this way, were traditionally used to distinguish between these two different activities in which courts and other constitutional actors routinely engage when dealing with authoritative writings, be they contracts, statutes, or the Constitution.
The second is Does the Constitution Protect Economic Liberty? (Harvard Journal of Law and Public Policy, Vol. 35, 2012) on SSRN. Here is the abstract:
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The author defends the proposition that the Court in Lochner v. New York was right to protect the liberty of contract under the Fourteenth Amendment. He does not defend its use of the Due Process Clause to reach its result. As he explains, the Court should have been applying the Privileges or Immunities Clause. Nor does he contend that the Court was correct in its conclusion that the maximum hours law under consideration was an unconstitutional restriction on the liberty of contract. Although the statute may well have been unconstitutional, the author does not take the time to evaluate that claim.
Instead, this article focuses on whether the Constitution of the United States protects economic liberty. To clarify the issue, the author begins by defining “economic liberty” as the right to acquire, use, and possess private property and the right to enter into private contracts of one’s choosing. If the Constitution protects these rights, then the Constitution does protect economic liberty. The evidence that the Constitution protects rights of private property and contract is overwhelming.
Posted at 7:00 AM