Maybe I'm dense (I'm not a lawyer, after all, though I play one on TV), but how can Randy Barnett claim to believe in original meaning originalism and still argue that actions that were capital offenses when the Constitution was written and ratified are, in fact, Constitutionally protected rights?
Clayton Cramer has lots more, and expressed again some of the many pitfalls of a truly libertarian society. Since Mr. Barnett isn't up to the task, I'm eager for TM Lutas to address the following scenarios:
I'm told by a reader who has asked Barnett whether cannibalism laws could survive challenge under Barnett's theory that Barnett responded that cannibalism isn't the same as homosexuality, and expressing incredulity that anyone would ask the question. Very true. But if Barnett's theory is really intended as an all-encompassing theory of Constitutional interpretation--and not just a way to strike down laws that he doesn't like--then he needs to explain why consensual cannibalism laws, laws prohibiting sex with animals in the middle of Main Street, laws against molestation of children, and laws against child pornography are Constitutional, since they do not necessarily involve either physical or economic harm to others. (Yes, you can construct scenarios in each of these cases that do not involve physical harm to other people.)
Update:
Bill Wallo points out that we tried a more limited federal government under the Articles of Confederation, and it didn't work too well. Many of the problems were in the details, of course, not merely the high-level concept, but still an interesting point.
