George Mason University
Not long ago, I was a stalwart champion of judicial terrorism on behalf of economic liberty. In recent years, however, I have become a meek, mildmannered originalist whose favorite adjective is "wooden."' I still like economic liberty as much as the next person - in fact, more than at least one of the next two persons. Nonetheless, much as I would like to, I cannot agree that the Constitution requires a free market to the extent urged by, among others, Roger Pilon, Bernard Siegan,3 Steven Macedo, 4 Randy Barnett,5 and Richard Epstein.6 My aim here is not to criticize their particular arguments, but rather to draw attention to a more general methodological problem - really a meta-problem pertaining to interpretation as such - that largely determines the extent to which their arguments can peacefully coexist with a wooden originalist interpretation of the Constitution.
In Praise of Woodenness
George Mason University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2437