Sandefur on Barnett's Taft Lecture

Following up on my post this morning about Randy Barnett's Taft lecture, Sandefur writes that he is a bit confused as well. That actually makes me feel better about it. It quells my nagging feeling that perhaps I'm just missing something (and perhaps I am, but if it's not obvious to Sandefur either I can be reasonably sure I'm not just being too dense to see it). At any rate, I agree with this statement completely:

Moreover, Barnett's laudable fascination with the Ninth Amendment strongly suggests that he, too, must be guided by liberal originalism. He complains that Scalia's version of originalism (which we call "conservative originalism") would knock over the Ninth Amendment because it's not rule-like, but refers to abstractions like "other rights." The liberal originalist says that to understand a phrase like that, you must consult the Declaration, which refers to the "inalienable rights" among which are life, liberty, and the pursuit of happiness. How are we to understand such words as "rights" or "liberty" which are used in the Constitution if not by reference to the Declaration? Barnett is very eager to use contemporary textual sources as evidence for understanding the objective meaning of terms at the time of their enactment; he consults newspapers and dictionaries. Why not, then, the Declaration of Independence, which certainly was well understood by the founding generation? Obviously it will not solve every definitional problem, any more than a dictionary will. But it is a textual source, and more. It is the great guidepost by which we can navigate when doing some of the bigger work of constitutional reading. When we are trying to understand just what the "privileges or immunities of citizens of the United States" are, the Declaration comes in awful handy.

By the way, we're still in the process of getting Positive Liberty back up and running correctly. Jason has changed web hosting services but is having some trouble getting the database to pull all of the old entries. As soon as it's back up, I and the others will start posting to it. In the meantime, Rowe and Sandefur are posting at Jon's blog.