00:00Hi, I'm Randy Barnett.
00:02I am Patrick Hotung Professor of Constitutional Law
00:06at Georgetown University Law Center
00:08where I also direct the Georgetown Center for the Constitution
00:11and it was my great pleasure to contribute
00:15this essay on originalism
00:17because originalism is an oftentimes misunderstood
00:21concept, especially by those in Europe
00:24who consider the term sort of odd
00:27when in fact it's really just a manifestation of a very common sense idea
00:31and that is that the meaning of a written constitution
00:34should remain the same
00:36until it's properly changed by amendment.
00:40So that's all that originalism stands for.
00:43It actually describes two different claims.
00:46It makes two different claims.
00:47One is the descriptive claim
00:48that meaning works in a certain way
00:51and that when a document is issued
00:53there's a meaning that is fixed in that document,
00:56a communicative meaning that is conveyed by that document
00:59and the second is a normative claim
01:01that within a constitutional order
01:03people who have responsibilities under the constitution
01:08should follow the original meaning
01:11that's fixed in the text of the constitution.
01:14And why should that be?
01:15Partly that has to do with what a constitution is
01:18and I think properly understood.
01:20A constitution is not the law that governs we the people.
01:23It's the law that governs those who govern us.
01:26And the challenge for all civil societies
01:29is to figure out how do you empower a government
01:32on the one hand to pursue the common good
01:35and to protect and secure the rights of all of the people.
01:39How do you create such a government
01:41and still subject that government to law?
01:43And the American innovation was to create a written constitution
01:48which provided in some sense a law from the sovereign people
01:52because we believe in popular sovereignty
01:54that would then instruct their agents or servants in government
01:57and those would include legislators and judges
02:00and executive branch officials.
02:03And if a written constitution is to provide the law
02:06that governs those who govern us
02:09then those who govern us
02:11can no more change the law that governs them
02:14without going through the amendment process
02:16than we the people can change the laws they make
02:18to govern us
02:19without going through the legislative process.
02:22So all of this suggests that originalism
02:24is actually very common sensical
02:27and it's placed in opposition
02:29to a general category of theories,
02:31not a single theory,
02:32but a general category of theories
02:33that sometimes is referred to as living constitutionalism
02:37or in Canada the living tree constitutionalism.
02:41And that's the idea
02:42that the meaning of the constitution should evolve
02:44as time goes by
02:46and as circumstances change.
02:48But what that ultimately does
02:50is empower somebody to do the evolution,
02:53to make the change.
02:54And it's not going to be the people themselves
02:56through the amendment process.
02:57It's going to have to be decision makers
02:59and principally it's going to fall to judges.
03:02And so under this conception,
03:04judges get to make up the law
03:05or they get to develop the law,
03:09change the law,
03:09so it adjusts to current circumstances.
03:13But there's a fundamental violation
03:15of separation of powers that goes on
03:17when judges who are supposed to be following the law
03:19are actually making the law.
03:22And that preserves the problem
03:24for living constitutionalists
03:25that originalism is the answer to.
03:28So that's in a nutshell
03:30the debate obviously in the United States.
03:32This is a debate that has gone on
03:34for several decades.
03:35What has changed in recent decades
03:37is that a theory of originalism
03:40has been developed
03:41over the last 30 years or so
03:43that is really quite robust.
03:45And I just try to summarize it
03:47in the essay that you're going to have.
03:49But it's a very robust theory.
03:51And as a result of the robustness of that theory,
03:53it has become the theory to beat,
03:55at least within legal academia.
03:57And also to some extent
03:58in the political order
03:59where we now have
04:01on the Supreme Court of the United States
04:03a majority of five justices
04:06who identify as originalists.
04:08There's a sixth conservative justice,
04:09John Roberts,
04:10who does not identify as an originalist.
04:12But five out of nine is not bad.
04:14We used to just have two.
04:15And as a result of that,
04:17originalism is something
04:18that is hotly debated and discussed.
04:20And it is a position
04:22that has evolved
04:22and developed itself over time
04:24as debates have taken place
04:26both by non-originalists
04:28and also within originalism itself.
04:30There are competing strains of originalism.
04:32And each of them have disciplined the other
04:35like peer review processes do.
04:37And as a result of that,
04:38originalism has become
04:40an increasingly robust theory
04:41due to this interaction
04:43both within originalism
04:44and also interacting with people
04:46who are critics of originalism.
04:48So I hope you enjoyed the essay.
04:49It was my great pleasure to provide it.
04:52And I always look forward
04:54to going to France whenever I can.
04:56My favorite city in the world
04:58is Aix-en-Provence
04:59in the south of France,
05:00which I was at this summer.
05:01And I hope to get back there
05:03soon enough as well.
05:05Au revoir.
05:05Au revoir.
