Has the U.S. Constitution Lost Its Meaning? A Debate

Law professors Randy Barnett and Michael Dorf argued over "originalism" at an event hosted by the Soho Forum.

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Has the U.S. Constitution Lost Its Meaning? A Debate

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Should the U.S. Constitution be interpreted and applied according to the original meaning of its text?

On June 11, 2018, two leading constitutional legal scholars, Georgetown's Randy Barnett and Cornell's Michael Dorf, debated "originalism," which seeks to protect against arbitrary and personal interpretations by jurists, while making the law stable, predictable, and consistent in its application.

The debate was hosted by Reason and the Soho Forum, which runs Oxford-style debates, in which the audience votes on the resolution at the beginning and end of the event, and the side that gains more ground is victorious. The resolution was: "The U.S. Constitution should be interpreted and applied according to the original meaning communicated to the public by the words of the text."

Dorf won the debate by changing the minds of 20 percent of the attendees.

Barnett, arguing for the affirmative, is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center and the director of the Georgetown Center for the Constitution. His books include Our Republican Constitution: Securing the Liberty and Sovereignty of We the People and Restoring the Lost Constitution: The Presumption of Liberty. After taking a J.D. from Harvard Law School, he worked as a prosecutor in Chicago. Barnett is a Senior Fellow of the Cato Institute and the Goldwater Institute.

Dorf, for the negative, is the Robert S. Stevens Professor of Law at Cornell University Law School. He is the editor, author, or co-author of six books, including On Reading the Constitution, with co-author Laurence Tribe. Since 2000, Dorf has written a bi-weekly column, currently appearing on Justia's Verdict. He also posts less formal legal analysis several times per week on his blog, Dorf on Law. After taking a JD from Harvard Law School, he served as a law clerk for Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit and then for Justice Anthony Kennedy of the Supreme Court of the United States.

The event opened with a standup routine from comedian Dave Smith.

The Soho Forum is held every month at the SubCulture Theater in Manhattan's East Village. The next debate, which is sold out, features Erik Voorhees and Peter Schiff on bitcoin and crypotcurrency. On August 27, William Easterly and Joseph Stiglitz will discuss whether free markets or government action is the best way to eliminate global poverty. You can buy tickets to that debate here.

You can catch all Soho Forum debates by subscribing to the Reason Podcast and our YouTube Channel.

Produced by Todd Krainin.

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Comments

[loveconstitution1789]

Has the U.S. Constitution Lost Its Meaning?

No. Why would it?

Just because people are too dumb to know what their rights are, what rights are protected, and what limits the government is restricted to does not make the US Constitution any less of a marvel of Libertarianism.

[perlchpr]

Does the government it's supposed to define pay any attention to it at all?

No, not really.

So has it lost it's meaning?

I think that means it basically has.

That doesn't mean it couldn't regain it's meaning. But at the moment, it's fucked.

[IceTrey]

What? It allows for taxation and slavery.

[BYODB]

Of course the constitution has lost all meaning. I mean, the negative won here didn't it?

[Cyto]

How about we punt on original intent and go with an easier goal.... just interpreting the words written on the page. That'd be a novel take.

"Congress shall make no law...." How many laws would a simple and direct reading of that phrase wipe out?

Or what about "Shall not be abridged..." What vast swath of the federal government goes away on reading that one as written?

Or how about moving "interstate commerce" back into the realm of actual commerce that is actually interstate. Is there any big initiative that our government has undertaken in the last 50 years that might get tossed in the dumpster if we did that?

[Scarecrow Repair & Chippering]

You still have to go by original meaning, because some words have changed meaning over the last 200 years. "well regulated" for one. You cite "commerce". Lots of words have different meaning nowadays. That's half of what originalism means.

[Rat on a train]

What about a 1900 law regulating gay activities?

[Longtobefree]

Which clause of the constitution is that in?

[Rat on a train]

Not in the Constitution. Just an example where the original meaning of the word would result in a different result than the current meaning.

[gimmedatribeye]

Why are you so concerned about gay activities?

[Mickey Rat]

No, the Constitution has not lost its meaning. The judiciary, on the other hand has made.an incomprehensible hash of precedent about how to apply it, which is what we actually have to deal with legally.

[EscherEnigma]

I'm too can't-be-arsed to watch the video, but did they even try to bring up Incorporation, and how it's not supported by Originalism?

Far too often I see "Originalists" skip over Incorporation to apply the Bill of Rights to the states.

[CE]

I think the 14th Amendment is overlooked by originalists.

[Scarecrow Repair & Chippering]

There is a lot of originalism which specifically mentions 1787 for the Constitution, 1791 for the Bill of Rights, and 1860-whatever for the 14th amendment. It is not neglected.

[Longtobefree]

Well, call me old fashioned, but the bill of rights applies to individuals. Not to states, or the feds, to individuals.
The constitution restricts ALL governments from violating those individual rights.
But of course if I was right, there would be free speech and due process on college campuses, there would be no infringements on the right to keep and bear arms, no asset forfeiture, no searches at the border of electronic devices, no TSA strip searches, etc. for ever.
So no, the constitution has no effective meaning.
So leave the old man alone with his dreams.

[UnrepentantCurmudgeon]

Here is the text of the 14th Amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

By its plain language it refers to "persons" and "citizens", and specifically focuses on the states (it is, after all, one of the three post-Civil War amendments). Is it applied accordingly? Not really.

[Pro Libertate]

No, but the government it was supposed to severely shackle has escaped. Approach with caution.

[CE]

It lost its meaning about 100 years ago. Maybe 105.

[Scarecrow Repair & Chippering]

I blame the Civil War, although it might have happened anyway.

First, Slaughterhouse destroyed the 14th Amendment's core intent and meaning. The debates were specifically about all the Privileges and Immunities of the Consttution and the Bill of Rights as acknowledged by both opponents and proponents, yet the Supremes couldn't stand the idea of a government being constrained in its police powers, and pretended it meant a very few limited rights only. The original politicians had moved on and didn't care to do anything to correct it. That set civil rights back by a hundred years.

And then there were the Abolitionists-turned-Progressives who saw what the power of the Federal Government could do (never mind the 1M dead) and looked for new projects now that the slavocracy had been beaten down. What's the point of all that power if you don't use it? That might have happened anyway in the absence of slavery, because Abolitionists were just proto-Progressives to start with, who latched on to slavery as the biggest righteous cause of the day. But they would have had to invent federal power in the absence of the Civil War.

[perlchpr]

who latched on to slavery as the biggest righteous cause of the day

To be fair, it's a pretty fucking righteous cause.

[Rev. Arthur L. Kirkland]

Your SJW virtue signal is not welcome here.

[creech]

Hannity and his buddies keep calling for a convention of states to amend the constitution. Yeah right, like any of us would want to live under the 200 page document enshrining privileges as rights that would result from the fiasco.

[Longtobefree]

Actually, I suspect it would produce a zero page document. After Emperor Hussein's ruinous reign, we cannot get two thirds of any group to agree on anything.

[Rat on a train]

They can agree that everyone should be forced to live according to their rules. They just can't agree on the rules.

[loveconstitution1789]

It's 2/3 to call a constitutional convention and 3/4 to ratify any amendments.

[lulz farmer]

It's almost as if when you import tens of millions of alien people with dissonant and antagonistic interests that your documents amount to nothing once those other people have some demographic clout. Huh.

[Eidde]

The Supreme Court's real howlers, the blatant distortions of the Constitution, don't come from alien Justices, but generally from Justices from established American families.

[lulz farmer]

I think at least 3, potential 4 or 5 those supreme court justices being from a certain tribe which makes up at most 2% of the US population makes it more like the Supreme Sanhedrin. These aren't exactly people who's ancestry is from the same place as the American founding stock, and they don't seem to have the same interests either.

[Eidde]

Oh, a real live anti-Semite.

How does one account for Taney and his distortions in Dred Scott, Blackmun and his Roe opinion, Souter and his Kelo opinion, etc.

(I hope nobody tells this guy about the Jewish libertarians on this site)

[Rat on a train]

It means whatever 5 Nazgul say it does.

[WillPaine]

The Constitution has not lost its meaning; America; we stand legion strong, and to all the lawyers who attempt to debate, and obfuscate, I say nay, fi to you. The law, called America, is easy to understand, and the intent of our Founding Fathers is, as well. Any eight year old can read those documents, and tell you about what they mean. America is alive and well, and beginning to stand, in your face, sirs.

[AD-RtR/OS!]

No! The meaning is the same.
We've just edumacated a couple generations of lawyers who are incapable of understanding plain, simple English.

[Longtobefree]

They understand it well enough. They just get away with ignoring it.
Where are the torches and pitchforks? Oh, right. No permits - - - - - -

[Cy]

"Land of the free. Home of the brave.**"

**Restrictions may apply.

[buybuydandavis]

The debate was rather unsatisfying because Barnett doesn't understand the point of originalism.

He thinks it's because "that's what people today swear to". So what? Maybe they pledge allegiance to Hydra too. Their swearing confers no legitimacy on whatever they swear to on the rest of us.

The People ratified The Constitution and delegated powers from the people to the federal government. "Here, we agree you can and can't do these things. We also agree on how we update powers delegated to you."

It was a deal. A landmark of consensual self governance. And a landmark that allowed for continuing improvement.

If the Feds can unilaterally go Darth Vader and say "I have altered the deal. Pray I do not alter it any further." they are betraying the fundamental premise of a government of power lawfully delegated by the people, and subject to their alteration thereafter.

[Bob Meyer]

Barnett's point was that the Constitution is not binding on us because we never agreed to it. However, the Constitution is binding on the government officials who swear to defend and uphold the Constitution. Americans are not constrained by the Constitution, only the government is constrained and that is through the constraints imposed on the president and other officers by the oath that they take when they assume their offices.

The legitimacy of the government does not come from the Constitution or the Federalist Papers, it comes from the Declaration of Independence which cites the reason for government - the protection of individual rights. "To secure these rights, governments are instituted among men...".

Barnett's version of originalism is the common meaning of the words at the time the Constitution was written - the same criteria that is used to interpret contracts.

Barnett would deny that laws bind us through our consent to be governed, rather they bind us by the individual rights that the government protects and only to the extent that the government does, in fact, protect those rights.

[Nuwanda]

Of course it's lost it's original meaning. How could it not have?

The extent to which it has meaning is dependent on the meaning we give it. And how do we give it meaning? Well, we judge it by the standards of our day. And what does our day say?

Not too fucking much, I fear.

Civilisation is led by its intellectuals, and our current crop have very different ideas. The amendment process is a steep hill to climb so the mode of change is via judicial activism and states' rights. The agents of change aren't stupid and so they harnessed the education system long, long ago. You control education, you control society. They are smart; you are not. They are winning, you are not.

The Tree of Liberty... well you know the drill.

[Nuwanda]

"A Republic, if you can keep it."

What did Old Ben know we don't? Plenty.

They knew the three-fifths bullshit was untenable but they left it to those, they hoped, who could perfect it. It was, in that case; so what makes the document inviolate? Nothing, and the remedy was written into it. But the very process by which it can be perfected is open to abuse. The income tax amendment is perfectly constitutional but is it right?

The Constitution means nothing save those that inherit it. It wasn't perfect, it was just a damn fine start.

[Cy]

"The income tax amendment is perfectly constitutional"

Technically it was never properly ratified. It's just the supreme court didn't give a shit.

[UnrepentantCurmudgeon]

The "three-fifths bullshit" was nothing but a necessary compromise on how to calculate population for purposes of election to the House of Representatives, finding some acceptable common ground between the South who wanted slaves counted as whole persons and the North who wanted slaves not counted at all. It was always destined for extinction.

[Nuwanda]

"The "three-fifths bullshit" was nothing but a necessary compromise on how to calculate population for purposes of election to the House of Representatives, finding some acceptable common ground between the South who wanted slaves counted as whole persons and the North who wanted slaves not counted at all. It was always destined for extinction."

Well, you managed to say what I said using many more words.

[Longtobefree]

To be clear - you are saying the damnyankees were first to claim that blacks were not people?
Next you will claim that tariffs had something to do with the unpleasantness of the 1860's.

[buybuydandavis]

"They knew the three-fifths bullshit was untenable"

Rather cheeky of the South. Why should property get representation? Pick a team and play. They're property or they're people.

[WesternCanonFodder]

The Constitution is not a philosophic romp through Enlightenment thinking. It's a piece of legislation. It's law. Judges are in place to ensure that the enacted law is applied as the people's representatives intended. For a judge to depart from the intent of those laws, and the will of the people as channeled by their elected officials, completely delegitimizes the role of elected lawmakers.

[Ecoli]

If enough people are of a mind set that the Constitution is a dead letter, then it is indeed a dead letter.

Personally, I am a textualist: it means what it says. It's not alive. The centuries of legal precedent, some poorly decided has certainly mangled the constitution and has made the US a poorer place.

[UnrepentantCurmudgeon]

What else can we expect when a sitting Justice, Ruth Bader Ginsburg, travels to South Africa and pronounces that she would not take our Constitution as a model for any contemporary society?

[Eidde]

OK, I'm listening to the debate, and I agree with Randy Barnett on one point - the comedian guy would have been a better debater.

Barnett does of course score some good points. I'm commenting on the debating skills of him and the Dorf guy.

[gphx]

'Progressivism' is a disease.

[IceTrey]

The Constitution is crap. It allows for the government to initiate force.

[Ecoli]

Clearly, you have not read the constitution.

[IceTrey]

Have you? The 13th amendment makes slavery legal as does the 16th with coercive taxation.

[ThomasD]

Sigh. There is a difference between reading, and understanding. This is commonly called comprehension, and the failure to comprehend is one of the reasons the state of the Constitution is so poor.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

What is permitted by the Constitution is not slavery, but involuntary servitude. If you are convicted of a crime and get sentenced to a term of hard labor, you will serve a term of hard labor. But you are not reduced to chattel. Nobody else owns you, they cannot sell you to another penitentiary or ship you off to another country.

[IceTrey]

You don't seem to comprehend what an either/or statement means.

[ThomasD]

Did you miss the part about an exception?

That exception being involuntary servitude as punishment for crime.

[ThomasD]

Those commas (and the missing one) really do matter.

[Longtobefree]

Nobody else owns you, they cannot sell you to another

Unless you happen to be an athlete.

[Johannes D?nske]

The United States Constitution says what it means and means what it says. Period. You want to track my texts, tweets, e-mails, phone calls, locations, etc. OR ... "Excuse me, officer, you want permission to search my vehicle? I have the time to wait for you to disturb a sympathetic judge who might sign a warrant". "Affiant prays ... " say the warrant requests. "Get a Warrant. I have the time to wait for you to continue harassing me." And then, "I'll see you in Court, officer".
~(?)~

[IceTrey]

You do know the 13th amendment makes slavery legal in the US?

[Longtobefree]

You forgot the final statement;
DON'T SHOOT!

[Johannes D?nske]

'Tis indeed a sad state of affairs when a low-level federal judge, any low-level federal judge, can re-define the law. Look around. Those political appointees think they know what is best for us - We The People. Those presidential, and Leftist I might add, life-time appointees believe that they are not bound by the Constitution and its Amendments as they participate in the soft coup to overthrow our duly-elected POTUS. Far, FAR too many matriculated at Hahvahd.

[bertwest]

People are surprising pliable. After a lifetime of thought, 20% changed their minds in about an hour. I guess I'm not shocked.
It makes me ponder how many people could be persuaded given a propaganda campaign of several months, maybe several years - anything might be possible. Will some think about this after the debate and change their minds back?
This is unsettling.
Our problems arise because our judges interpret our constitution to suit their own positions and agendas. They are given the power to interpret "in the spirit which the constitution was originally intended". And everyone has their own perspectives - the question being, when do these perspectives interfere with the proper performance of their job: to interpret from an unbiased, personally detached point of view. Then their "decision" stands and future judges are inhibited about not ruling in accordance with that. This makes a bad "judicial opinion" even more troubling.
And this is why the original words should under no circumstances be dismissed or circumvented. For that, by definition, is a slippery slope - once you get started slipping, and you're on a slope, well I suppose we all know what happens.
Next up: the debate on "Anything Goes"; and we'll find out what percentage of the audience changes its mind on this one.

[IceTrey]

The problem is the government is allowed to initiate force. It should be subject to the NAP the same as individuals.

[Natural Rights]

The Constitution exists in name only. Lincoln nationalized the States and he's a celebrated national hero. FDR socialized America and he still rules us from the grave through today's disciples. Majority of Americans are enchanted with living in our Socialist Democracy. Our will to protect our Natural Rights to Life, Liberty, Property, and the Pursuit of Happiness is dying.

[TxJack 112]

What Lincoln did was abolish the 10th amendment without actually abolishing it. Prior to the civil war, the "United States" was a confederation of independent nations. This is why the states of Kentucky, Massachusetts, Pennsylvania, and Virginia all classify themselves as Commonwealths. South Africa is also a Commonwealth. In every other context, the term state is a synonym for nation or country. The 10th amendment made the Federal government and Congress defer to the will of the states instead of how it is today. However, the only way to rebuild the nation after the civil war was to flip the roles and to do so, citizens relented. Beginning with TDR, not FDR, the Federal government has become more and more powerful. FDR simply completed what those Presidents in the early 20th century began. Since FDR, the attempt to centralize power in DC has never stopped and was taken to the limit under Obama. One of the reasons for the election of Trump was his call to reverse the process and give much of the power of self determination back to the states. This is also the real reason he is so opposed by establishment politicians. To return power to the states reduces and/or eliminates the power of those in Congress which diminishes their power, wealth and control.

[TxJack 112]

The problem is clearly demonstrated by many of the posts here. There is vast confusion about interpretation of the Constitution vs. legal precedent. Like English law, much of US law is based on legal precedent. Once a court decision is rendered, unless that decision is challenged or overturned, then it stands as the bell weather for future cases related to it. In the past 50 years, many cases have been decided based on an individual right to privacy, yet nowhere in the Constitution is this right enumerated. It was created by the Burger court in Roe v Wade based in its interpretation of the 14th amendment. In contrast, Heller was decided based on interpretation of the specific wording of the 2nd amendment and it ORIGINAL intent. Many anti-gun groups today attempt to define "militia" as a government run group such as the national guard, but the original intent makes it clear the right is an individual right since there was no federal or state militias at the time the Constitution was written. The problem is more easily explained by the modern push to view the Constitution as a "living" document subject to interpretation based on current values.