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29 June 2008



Bill, I think the difference between Prof Barnett's writings is due to this:

Randy lost Raich before the Court in 2005, and the part that hurt him the most was the Scalia denied Randy's original meaning arguments in his concurrence. It seemed like Scalia abandoned his originalist principles to avoid the outcome of legalizing marijuana.

But Randy desperately wants to believe that Scalia's an originalist, and he wants to celebrate Heller and the significance that his favorite philosophy of original meaning (vice intent) originalism had in the the opinion. He overlooks Scalia's past deviations to emphasize his outstanding legal reasoning in Heller.

Note also that the WSJ piece is focused on the one opinion, not any other cases where Justice Scalia may have turned from originalism.

Bill Henderson

You make a very nice point here. In the Wall Street Journal, you have fewer words to make your point, but more people will read it. In a law review, the opposite relationship holds true. But these two excerpts by Barnett seems facially inconsistent. bh.

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