I have chosen to remain rationally ignorant about the 21st Amendment — while it’s one Amendment I am firmly behind, I can’t say I know anything about the details — but I am not sure I share co-blogger Todd’s reaction, also shared by Stephen Bainbridge, to Justice Stevens’ dissenting opinion in the wine cases. Persuasiveness aside, the Stevens dissent strikes me as relatively standard originalist fare. The opinion attempts to contrast the original understanding of the 21st Amendment with the policy views of the present day, and argues that the policy views of the present day should not trump the original understanding of the 21st Amendment.
Granted, the idea that Justice Stevens would suddenly embrace originalism is worth a chuckle. He is a rather late convert to the faith, and I suspect won’t be found in church next Sunday. But the structure of his argument seems common enough. Consider his view that we should pay special deference to the views of those who were around at the time the 21st Amendment was passed. This seems similar to the view the Supreme Court expressed in Ogden v. Saunders, 25 U.S. 213 (1827), that there is a “presumption, that the cotemporaries of the constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the constitution, and of the sense put upon it by the people when it was adopted by them.” More recently, this approach has appeared in a number of recent opinions that feature originalist modes of interpretation, among them Alden v. Maine, 527 U.S. 706 (1999), in which Justice Kennedy examines the views shared by “[t]he generation that designed and adopted our federal system” for evidence of the “original understanding of the States’ constitutional immunity from suit” that can shed light on the meaning of the Eleventh Amendment. The basic idea seems to be that the views of those around at the time a constitutional provision was adopted can provide some insight into the original understanding of constitutional text.
Of course, none of this means that Stevens was right or wrong, or that originalism is a good or bad tool for understanding the constitution. But it does leave me less persuaded that the Stevens opinion is somehow outside the mainstream of judicial craft.
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