Hey Orin

Yesterday, Orin wrote:

But unless you believe, as does my co-blogger Randy, that the Constitution if properly construed mandates libertarianism o’er the land. . . .

Hey Orin. Given that you insist you have no expert view on the original meaning of the Privileges or Immunities Clause, how do you know that Richard L. Aynes, Jack M. Balkin, Steven G. Calabresi, Michael Kent Curtis, Michael A. Lawrence, William Van Alstyne, Adam Winkler (none of whom are dreaded libertarians, so far as I know) and my reading of the Privileges or Immunities Clause is wrong? And doesn’t the failure of the justices who were obviously hostile to the Privileges or Immunities argument to ask any question challenging the accuracy of this reading strongly confirm its correctness as a matter of original meaning? Had there been a hole in that claim, do you think Justice Scalia would have hesitated to mention it to puncture the originalist analysis of “the professoriate”? Hearing none, can we take this claim of original meaning as presumptively established and go on from there?

BTW, my take on the oral argument is in today’s Wall Street Journal, which unfortunately is behind a subscriber wall. For those with access the link is here.

UPDATE: If you want to read my op-ed, a reader helpfully writes how to do it:

If you go to Google News and search [Randy Barnett McDonald], the second result leads to the full, non-subscriber version of your op-ed. I promise! I just finished reading it! I forgot that I had this same problem trying to post a WSJ link at Volokh recently. Those crafty so-and-sos will let people coming in from Google News and the like read for free, but they make it hard (impossible?) to link to the free version.

I too just tried this and accessed the piece. Enjoy!

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