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.
I think you'd have a hard time getting anything involving children past the harm principle. Very few people are "liberatarians" as to children or, for that matter, animals. Voluntary cannibalism, necrophilia, etc., are much tougher to deal with under broadly applied libertarian principles.
As to the notion that the Constitution could not have intended an act to be a "constitutional" right if the act was a capital offense at the time the Constitution was enacted, bear in mind that the original Bill of Rights did not apply to the states. For all we know, maybe the Framers did, intend to give everyone a "right to sodomy" as against the federal government, even though such right would be useless against any of the 13 then-existing states. Then again, the laws probably weren't all that different in 1868, when the 14th Amendment was enacted.
X: As to children, it's not hard to imagine scenarios wherein the child is photographed without their knowledge and the pictures are never publically distributed. Some hypothetical situation could be devised that should be illegal, but wouldn't be under a libertarian system. For the non-child-related matters, there are very good reasons to keep them illegal, despite the (arguable) lack of harm.
After all, if we can say that a child is incapable of consenting to something, is it unreasonable to say that no one can consent to being eaten (pun intended)? I'm not arguing for a specific policy here, I'm just saying that it makes sense to me to leave the choice up to the majority.
Ad for sodomy, Clayton Cramer has a lot of info to support his position that sodomy was a capital offense in most (all?) when Constitution, BoR, and 14th A were ratified, respectively. And anyway, Lawrence struck down a state anti-sodomy law, not a federal one.
There is a difference between original meaning originalism and original intent originalism. It may well be that the meaning of the Constitution requires that what is constitutional and unconstitutional change as factual knowledge changes.
David:
So your idea of intent originalism is "the meaning of the Constitution requires that what is constitutional and unconstitutional change as factual knowledge changes."
I see a little problem with that: I don't think that they intended the meaning of the Constitution to change. If they had intended it to be the living, flexible document that liberals want it to be, then they would have written it differently. Marbury v. Madison would not have been a difficult case. They would have put more checks and balances on the US Sup Ct. They would have put broader language into the Bill of Rights.
The people who wrote the Constitution didn't know that they were writing a living, breathing document. So the problem with your intent originalism is that it doesn't follow original intent!
Barnett and others argue against original intent originalism. The fact that homosexual sodomy was universally a felony in 1868 (I'm taking Cramer's word on that), and that no one tried to overturn those laws under the 14th Amendment is pretty good evidence that the intent of the framers of the 14th was not to constitutionally protect sodomy, but it isn't necessarily evidence of what the meaning of the words of the 14th were, as people are quite capable of ignoring contradictions when it is convenient. What would have been the reaction of a framer of the 14th to Barnett's argument regarding homosexualy sodomy and the 14th? If it would have been "that's not what we intended", that's completely irrelevant to original meaning originalism. If it would have been "you're misconstruing the meaning of 'immunity' (etc.)", then there would be a clear problem with Barnett's argument, but I doubt that Barnett has the basic meaning that wrong. Our hypothetical framer might also claim that Barnett's basic definition is correct, but he misapplies it to sodomy, in which case we can easily follow the argument of both sides and decide whether the basic meaning of immunity (as understood in 1868) does indeed include the right to private, consensual, sodomy. The fact that the framers of the amendment were inconsistent does not change the original meaning of the amendment.
Adam: Ooo, interesting. I haven't heard it explained that way before, so I'm skeptical of your definitions. I'll have to read up some more.