Three Objections To Randy Barnett's Libertarian Originalism

Randy Barnett’s Libertarian Originalism (LO) seems to take the best parts of several Constitutional theories, allowing for both a strong reliance on the text and a commitment to liberty. LO improves greatly on the shortcomings of other forms of originalism, though is not a compelling view overall. In this essay, I will first explain LO, and how it improves on Larry Alexander’s Original Intended Meanings Originalism (OIMO) and Justice Scalia’s Textualism (ST). I will then present three objections to LO, infer as to how Barnett would answer the objections and then assess the replies. After, I will show that LO cannot stand well against these objections, and that its impracticability makes it an ineffective view overall.
Barnett’s theory of libertarian originalism has three main parts. The first is legitimacy. Barnett thinks we have a moral duty to follow the laws that are made in the name of the Constitution. The Constitution’s legitimacy does not come from consent because nobody else’s consent can bind another person, and because it is questionable whether we can be bound by the

These words must be interpreted reasonably; the words should have “an expansive rather than a narrow interpretation—though not an interpretation that the language will not bear” (Scalia, 37).
LO improves on ST in two main ways. First, Scalia does not give a good response to the Dead Hand Objection. Scalia’s argument for why the Constitution is legitimate and is the supreme law is likely because it says so, in Article VII and Article IV, respectively. Though, that still raises the question for why a group of dead, unrepresentative framers had the authority to make a supreme law. Barnett does give an explanation for legitimacy that avoids the DHO. He says that the Constitution is legitimate because it created a legal system likely to protect our