(Oct. 25) Conservative constitutionalists, no less than politicians, should heed the old campaign maxim that people don’t care how much you know until they know how much you care.
Speaking at the Mobile, Alabama, chapter of the Federalist Society on Oct. 22, law professor Randy Barnett didn’t use those words, but his message was strikingly similar.
“Our story is a better story,” Barnett said of those who advocate conservative jurisprudence. “We just need to tell it.”
Barnett, the director of the Georgetown Center for the Constitution , said that conservatives explaining their approach to judging often sound as if they are concerned only with a slavish veneration of the past and of technical aspects of the law, rather than with true “justice” in the broader sense. Today’s political liberals thus make conservatives sound heartless, not to mention insensitive to the horrors of slavery that liberals say is part and parcel of any “originalist” approach to applying the Constitution.
Barnett said that portrayal of conservative constitutionalism is wrong for two reasons. The original public meaning of the Constitution always should be read, he said, in light of the principles enunciated in the Declaration of Independence, which is a superb exemplar of justice writ large. It’s not that the declaration’s text is itself technically “law” but that its principles infuse the entire American order, including the Constitution, and that the Constitution must be interpreted in that context.
Second, Barnett said that “originalism” refers to each part of the Constitution, including the amendments, and that the post-Civil War amendments are unambiguously grounded in equal justice under the law, and against slavery and white supremacy. (Indeed, Barnett’s new book , to be released Nov. 2, is a deep dive into the “original meaning” of the most far-reaching of those amendments, the 14th.)
Alas, said Barnett, the Supreme Court botched the interpretation of the 14th Amendment in a line of decisions beginning with the Slaughterhouse Cases . An “originalism” that properly applies the 14th Amendment not only would get the law right, he said, but also quite naturally would advance true justice. Such justice, he said, emphasizes the rights of the individual, not the grievances of a group.
The political Left’s conception of “social justice” and “wokeness,” he said, “is not justice properly conceived” because its focus on group grievances completely upends the concepts of liberty, or “natural rights,” embedded in the Declaration of Independence and Bill of Rights, especially as further secured through the 14th Amendment…. [The full column is at this link.]
