The Electric Commentary

Tuesday, May 03, 2005

Cass v. Randy

At the Legal Affairs Debate Club, Cass Sunstein is debating Randy Barnett on the subject of Constitutional interpretation, and it's starting to get a bit chippy.

Cass finishes up his last post with this:

During the controversy over the nomination of Judge Bork to the Supreme Court, Judge Richard Posner, a Reagan appointee, produced an ingenious little paper called "Bork and Beethoven." Posner noticed that the conservative magazine, Commentary, had published an essay celebrating Bork's fundamentalism in the same issue in which another essay sharply criticized the "authentic-performance movement" in music, in which musicians to play great composers on the original instruments. Posner observes that the "two articles take opposite positions on the issue of 'originalism'—that is, interpretive fidelity to a text's understanding by its author." While one essay endorses Bork's fidelity to the views of people in 1787, the other despises the authentic-performance movement on the grounds that the music sounds awful. If originalism makes bad music, Posner asks, "why should the people listen to it?"

Which Seems fair enough. Barnett though, has at least produced his "bad music." Sunstein to this point has made no statement about his philosophy, and has only attacked Barnett, as Barnett points out:

But enough about me. What do you think of these lost clauses, Cass? Do you approve of the complete rejection of the Privileges or Immunities Clause in The Slaughter-House Cases? Do you think that the Ninth Amendment is properly held to be a constitutional dead letter as the Court held in 1947? Do you agree with the pre-Lopez/Morrison interpretation of the Commerce Clause that gives Congress an unlimited power over virtually any activity in the United States? Do you agree that the Necessary and Proper Clause empowers Congress to adopt any law that, in its sole opinion, is "convenient"?

Most fundamentally, Cass, what is your theory of constitutional interpretation against which originalism is being compared? Does it amount to anything more than telling Supreme Court justices to reach the right or just outcome? Does your method yield any important results that you think are unjust or wrong? Or does your method just happen to result invariably in happy endings? Inquiring minds want to know.

This should be fun. I'm looking forward to Sunstein's response.

(Hat tip, The Volokh Conspiracy)


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