Archive | Originalism

Welcome John McGinnis and Michael Rappaport!

I am very glad to see that John McGinnis and Michael Rappaport are going to be guest-blogging here about their excellent new book, Originalism and the Good Constitution. I have some disagreements with their analysis. But it is nonetheless one of the best defenses of originalism in a long time. I reviewed the book in this post, back in October.

Readers interested in originalism and constitutional theory should also check out McGinnis and Rappaport’s many fascinating blog posts at the Liberty Law blog. […]

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Is Originalism the Law?

One question that quite fascinates me is whether the original meaning of the Constitution is “the law” — in the sense that it describes the positive law of the United States. Mike Rappaport has a pair of posts exploring this question: here’s the first, here’s the second. Ultimately, he concludes that originalism is not against the law, but he remains skeptical that originalism is the law:

I am open to the argument for originalism being the law, but at present find the arguments undeveloped. If one day someone makes a persuasive argument, I would, of course, welcome it. But, at present, I believe the best argument is based on the normative soundness of the Constitution and the problems with judicial updating of the Constitution …

I have been working on developing an argument like this (as has my friend Steve Sachs) but I entirely agree with Rappaport that the current work on this is extremely underdeveloped. […]

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My New Article on “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy”

My new article, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” part of a University of Chicago Law Review symposium on the work of Judge Robert Bork, is now available on SSRN. Here is the abstract:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and democracy. The consistent originalist will likely have to accept substantial constraints on democracy. The consistent adherent of deference to the democratic process will have to reject judicial enforcement of major parts of the

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University of Chicago Law Review Symposium on the Work of Judge Robert Bork

The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here. Here is a summary adapted from the Introduction:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and

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The Recess Appointments clause: Amicus brief on original meaning based on State practices

As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early practice. (The VC co-authors were William Baude, Dale Carpenter, and Eugene Kontorovich, plus former VC writer Michael McConnell.)

Another amicus brief in the case address the contemporary legal meaning of the words and phrases in the Recess Appointments Clause. The main sources for information about this are the records of the state legislatures during and before the ratification period. These sources clearly show that a “recess” took place only between the formal sessions of a legislative body. For a vacancy to “happen” during the recess, the vacancy must first arise during the recess. If a vacancy arises while a legislature in session, and the office is still vacant when the legislature goes into recess, the vacancy did not “happen” during the recess.

This originalist amicus brief was filed on behalf of the Independence Institute. The brief is based on the research contained in the article The Origins and Meaning of ‘Vacancies that May Happen During the Recess’ in the Constitution’s Recess Appointments Clause, by my Independence Institute colleague Rob Natelson. [Harvard Journal of Law and Public Policy, Vol. 37, No. 1 (2014), forthcoming.]

Thanks to the Polsinelli firm, and to attorneys Sean R. Gallagher, Bennett L. Cohen, and Jon R. Dedon for writing the brief. The Independence Institute also worked with the Polsinelli firm this summer, in an amicus brief for a cert. petition in Bakoss v. Certain Underwriters at Lloyd’s of London (arguing state law, rather than federal common law, should supply […]

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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. […]

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Three Important New Books on Constitutional Law

In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes:

I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution.

This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they claim it is the only feasible way to interpret legal texts, McGinnis and Rappaport argue that originalism is superior to living constitutionalism because it produces better consequences, in the form of legal rules that benefit more people over time. They contend that the original meaning is likely to have beneficial consequences because it was enacted by supermajority decision-making processes. On average, constitutional rules supported by supermajorities are likely to be better than those produced by judges using various living constitution methodologies of interpretation or those produced by normal political majorities.

A great strength of the book is that McGinnis and Rappaport do not shy away from difficult issues that some other originalists downplay or ignore. These include the reality that most blacks and virtually all women were excluded from the political processes that produced the original meaning of the most important parts of the Constitution, the claim that Brown v. Board of Education is incompatible with originalism, and the problem of how to deal with decades of accumulated nonoriginalist precedents. To each of these dilemmas, the authors provide insightful answers. For example, they point out that Brown would probably not even have been necessary had the federal government effectively enforced the original meaning of the 14th and 15th amendments between the 1880s and 1950s. Even if integrated public schooling was not in and of itself required by the original meaning, the protection of black voting rights and a wide range of civil rights clearly […]

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How Best to Secede from a State

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to gain leverage for their preferred policies within their state governments.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state”:

… no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The language of the provision is a bit unclear. Does the second clause above (“nor any State be formed”) refer back to, and continue the discussion, of “new states”? That would mean that the provision does not govern the transfer of territory from one state to another. The interpretation probably depends on what it means for […]

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Justice Scalia Repudiates “Fainthearted” Originalism

In a 1989 article, Justice Antonin Scalia famously described himself as a “fainthearted originalist,” By which he meant that he would sometimes vote against the outcome dictated by the original meaning of the Constitution if strong precedential, moral, or other considerations cut the other way. Co-blogger Randy Barnett wrote an interesting 2006 article taking Scalia to task for his faintheartedness. But in his recent interview with New York Magazine, Scalia has repudiated the faintheartedness he earlier embraced:

You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.

It’s not clear how much of a change of heart this really is. Scalia did not say that he would now never vote against an originalist outcome for any reason. But it’s possible he now has a higher threshold for doing so than in earlier years.

UPDATE: Co-blogger Will Baude points out that Scalia previously repudiated fainthearted originalism in a 2011 interview with Marcia Coyle, recounted in her recent book The Roberts Court (pg. 165). […]

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Erwin Chemerinsky on Originalism

UC Irvine Law School Dean Erwin Chemerinsky, one of the nation’s leading constitutional law scholars, recently posted a critique of originalism on the ACS Blog. Unfortunately, the points he makes are uncharacteristically weak. University of San Diego law professors Michael Ramsey and Michael Rappaport do a good job of explaining why. Chemerinsky’s most dubious point is his claim that a consistent originalist must believe that women are constitutionally barred from the presidency, because the Constitution uses the male pronoun “he” in referring to the president. As Ramsey notes, until very recently, male pronouns were commonly “used generically to include both men and women.” This usage may have been sexist. But it was standard practice as recently as my high school days in the late 1980s, and certainly was in the 18th century.

Obviously, as Ramsey also points out, there are serious criticisms of originalism; the theory has its share of weaknesses. But most of the points Chemerinsky raises are not among them. The one exception is his argument that consistent originalism requires rejection of Brown v. Board of Education. This is indeed an important potential weakness of the theory. However, as Rappaport and Ramsey note, Chemerinsky ignores various ways in which Brown could potentially be reconciled with originalism. I would add that these include theories advanced by liberal originalists like Jack Balkin and Akhil Amar, as well as conservatives such as Michael McConnell (whose originalist rationale for Brown is mentioned by Ramsey). […]

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The Obvious But Underappreciated Point About Federal Power and Equality

Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government.

People frequently try to challenge various originalist views about equality by pointing to the actions of the Reconstruction Congress. Affirmative action must be permitted by the original meaning of the Fourteenth Amendment, they will say, because the Reconstruction Congress enacted race-conscious legislation. (Although actually it did so much less than is commonly supposed.) Or the original meaning of the Fourteenth Amendment must have permitted school segregation, they will say, because Congress did not stop segregation in the DC schools.

To be fair, some originalists are no better about this. Justices Thomas and Scalia both joined the Court’s opinion in Adarand, which imposed strict scrutiny on federal affirmative action, even though Justice Scalia had previously given some perfectly plausible reasons for thinking that the federal government has more freedom to engage in race-conscious decision making than states do. The Scalia/Thomas vote in Adarand could be justified on a certain attitude toward precedent, but they can be criticized for not explaining or justifying it.

Of course there is judicial precedent reverse-incorporating the equal protection clause against the federal government; but originalists often discuss original meanings that are currently in conflict with precedent. And there are even some quasi-originalist arguments justifying an equality requirement for the federal government. Co-blogger David Bernstein has discussed the Due Process Clause; Ryan Williams has discussed the Citizenship Clause; Gary Lawson, Guy Seidman, and Rob Natelson have discussed the backdrops of fiduciary law. These views might even be right (although I do not think so). But among originalists, they are the minority […]

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Michael Dorf on the Social Practice of Originalism

Michael Dorf has an interesting blog post recounting some of his Constitution Day remarks:

Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way. . . . [N]o one disputes that it would be possible — as a matter of brute fact — for Americans to let go of the Constitution and replace it with something else. Put in terms we owe largely to H.L.A. Hart, what makes the Constitution the law around here is the social convention that we treat it as the law. The Constitution is like paper money. It has no inherent value. Its value derives from everybody’s willingness to treat it as valuable.

What’s true of the Constitution is also true about efforts to discern the Constitution’s meaning. Originalists — of all stripes — sometimes talk as though their method for interpreting and construing the Constitution is simply the only honest way to do the job. Yet everything depends on what that job is, and that is ultimately determined by the same sorts of conventions that make the Constitution law in the first place. And those conventions are themselves a product of the political system.

Originalism provides a nice illustration. . . .

Dorf goes on to argue that “originalism’s future looks dim” as a positive matter, because it is connected to the Republican Party and the Republican Party’s future looks dim, as does originalism’s place within it.

I pretty much agree with the blockquoted part of Dorf’s remarks — the Constitution is law only because of our shared social convention that it is law, and it makes sense to look at interpretive methodologies in a similar way. But I am more optimistic about originalism’s place in our shared social convention.

As a matter of […]

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Originalism and the Constitutionality of Military Intervention in Syria

At the Originalism Blog, Prof. Michael Ramsey, a leading academic expert on constitutional war powers, has an excellent post on the implications of the original meaning for the constitutionality of an attack on Syria without congressional authorization (quoting, in part, from a 2011 post he wrote during the debate over the Libya conflict):

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war….”

The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks….

Thus the founding generation thought the Constitution reserved war-initiation power to Congress. How could this be, though, if Congress has only the power

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What Kind of a Theory is Originalism?

Mike Rappaport has an interesting post about how to justify originalism. In particular, Rappaport writes about what kind of a theory originalism is. Is it a “normative” theory (what kind of theory would produce good policy), an “interpretive” theory (what kind of theory actually assesses the meaning of the document) or what I’d called a “positivist” theory (what kind of theory best conforms to what the law is today)?

Personally, I am most sympathetic to the positivist arguments for originalism, but I’ve noticed that a lot of confusion in theoretical debates about originalism seems to stem in part from confusing these three different kinds of arguments. Rappaport apparently plans to write more posts about the issue, which I look forward to reading. […]

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Can Lawyers Ascertain the Meaning of the Living Constitution?

I agree with most of what co-blogger Randy Barnett says in his recent post responding to critics who claim that lawyers and judges cannot determine the original meaning of the Constitution. But I think we should also pay attention to the opposite question of whether lawyers can figure out the meaning of the living Constitution.

The main alternative to originalism, after all, is some form of living constitution theory. People who claim that originalism is too difficult to apply often implicitly assume that applying living constitution theory is, by contrast, relatively easy. Much of the time, that is not so. Consider, for instance, the famous Carolene Products claim that courts should give special protection to the rights of “discrete and insular minorities.” It is often hard to figure out which groups really are discrete and insular minorities, and which policies discriminate against them or inflict disproportionate harm on them. Bruce Ackerman’s classic article “Beyond Carolene Products is a good discussion of some of these problems.

Or consider John Hart Ely’s famous theory that judicial review should be “representation-reinforcing,” by striking down laws that seriously undermine people’s ability to participate in the democratic process effectively. Justice Stephen Breyer similarly argues that judicial review should promote democratic participation. Often, figuring out what is or is not representation-reinforcing turns out to be a complex question that requires understanding of empirical social science and normative democratic theory to answer intelligently. There are serious representation-reinforcement rationales for some forms of judicial review that Ely and Breyer consider to be clearly anti-democratic. I give some examples here.

Other forms of living constitution theory have similar complexities. Even if your approach is to simply rely on precedent and try to build on its logic when novel cases arise, there are going to significant challenges. As […]

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