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Constitutional Law – Barnett v. Kerr

There is a great debate going on at the Volokh Conspiracy on the meaning of constitutional law.  It reminds me of the more lively Volokh of old.

A snippet of Barnett’s blistering criticism:

In support of his reasonable prediction, Orin offers the following equally reasonable proposition: “If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side. . . . As soon as the issue takes on practical importance, however, the votes generally aren’t there.” But what type of proposition is this? Is it “the Constitution”? Is it even “constitutional law”? If it is neither, then I do not see how it is responsive to the question of whether a mandate to buy private insurance in constitutional, unless one redefines “constitutional” to mean “whatever the Court can be predicted to rule.” THIS is what Orin calls a “semantic” issue, which it is, but it is not merely semantic. It is also substantive and very important issue to boot.

And Kerr’s essentially agnostic response:

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 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.

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