Posted by Orin Kerr:
The Constitution and the Golden Calf - A Response to Randy:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253635499
Based on [1]his comment below, I worry that Randy might misunderstand
my view on his exchange with Professor Jost. In light of that, I
wanted to explain my position a bit more clearly.
I really don't care whether we label what the Supreme Court says as
what the Constitution "is," or whether we use that label for what
Randy Barnett thinks, or what Pam Karlan or anyone else thinks. My
first post noted the common convention of referring to what the
Supreme Court has said as what the Constitution "is," but that is just
a convention: I pointed it out only to avoid the confusion that
results when we mix conventions without saying so. I am just as happy
if we call the Constitution as described by the courts as "Larry," the
Constitution as construed by Randy as "Moe," and the Constitution as
construed by Pam Karlan as "Curly." They are just labels, and my
primary interest is in avoiding confusion among them.
Of course, Randy is welcome to use his label, in which his vision of
the Constitution is "the real Constitution," while the Constitution
that others believe in are false idols. I envision Randy coming down
from Mt. Sinai with a copy of [2]Restoring the Lost Constitution, as
the Israelites look up from their worship of the golden calf of the
United States Reports. My point is only that the choice of label is a
rhetorical move, not a jurisprudential one. I recognize it is an
important rhetorical move: the
believers-in-the-true-God-versus-the-heathens meme has worked for
millenia, and I gather from what Randy says that it is a key part of
trying to popularize his view of how the Constitution should be
construed. But I think it's important to recognize the rhetorical
move.
Why is it important? I think it's important because so many people
have such different visions of what the true Constitution really is.
By and large, those visions tend to match the ideologies of their
holders: libertarians envision a libertarian Constitution,
progressives a progressive Constitution, conservatives a conservative
Constitution. Each group, in good faith, sees its vision as the true
Constitution. Given the wide range of views, I think it's confusing to
use labels like "the real Constitution" in a way that avoids
recognizing the good faith disagreement about what that real
Constitution means.
References
1. http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253566626
2.
http://www.amazon.com/Restoring-Lost-Constitution-Presumption-Liberty/dp/0691115850
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