A comment on Volokh's site
"Although I do not intend to get into a dialogue with readers in comments, you raise 2 good issues.
(1) Protecting unenumerated natural liberty rights is not "implementing natural law." And the Ninth Amendment applies to the national government, whereas the Fourtheenth Amendment limits the states. This is a much longer and complicated matter, of course.
(2) There are two responses to this point. First, if "the Constitution" means nothing more than "one's policy preferences" (given a policy preference method of "interpretation") then it is bootstrapping and simply falso to claim, as the Court and commentators do, that it is the Constitution that mandates their results, rather than the judges' policy preferences. And if all that matters is policy preferences, then it is not clear why judges should have a final say--or even any input. That would have been appropriate for a Council of Revision, but such was not adopted. What justifies judicial review is the assumption that there is a written constitution whose meaning is independent of the judiciary's policy preferences and that limits the power of other branches as well as the power of the judiciary itself.
Second, it is not at all fair or accurate to say that "originalism" is tailor-made to produce the policy results that I or anyone wants--or at least is should not be so if properly practiced. Originalism leads to major policy results of which I disapprove. I feel, however, that as long as I am advocating that others obey the Constitution where I do approve of the results, it is only fair for me to accept as constitutional (though objectionable) results of which I disapprove.
Of course constitutionalism is not an end in itself. Ultimately results matter. So does what a particular constitution says. If a particular constitution, properly interpreted, leads to too many seriously objectionable results, this is good reason to ignore or reject that constitution. This is the hidden position of many opponents of originalism. Ultimately, they do not like the results produced by the Founders Constitution (even as modified by the Fourteenth Amendment), but they do not wish to come out and reject it. They insist that they are "interpreting" and "following" "The Constitution" because their audience tends to like the Constitution.
And the founders thought, and I agree, that adhering to a written constitution, whose meaning remains the same until properly changed (in writing), leads to better overall results in the long run than letting legislatures do what they wish (which they had personally experienced at the state level), or letting judges freely substitute their policy preferences for those of the other branches. In this way, originalism is the means by which the structural advantages of a written constitution are obtained and preserved.
Finally and relatedly, a written constitution is needed to "lock in" a good meaning that will constrain those who are empowered by the Constitution to enact laws. If those who enact laws can define the limits of their powers, then the rights of the people will be greatly insecure. This is one of the reasons why the Kelo case struck such a nerve in the public. Essentially, the Court was saying that it would not police the outer boundaries of the power to condemn private property, but would trust local governments to do it in good faith. Many citizens do not trust local government, or any government, to define the scope of their own powers..."
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