It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters. I am not so sure. To begin with, this distinguishing between the drafters and the ratifiers appears to turn on an original intent (versus an original public meaning) understanding of originalism. Under an original public meaning apprach, it is the meaning that a reasonable and knowledgeable person would give to the Constitution. And that meaning is no more likely to be that of the ratifiers than the drafters. But some people favor the original intent approach. Yet, even under this approach,…
I was pleasantly surprised to see this new podcast with Patrick Allitt. I know Professor Allitt’s work from his lectures for the Great Courses (previously known as the Teaching Company). I have listened to three of his courses, all of which I greatly recommend. The first course I listened to by Professor Allitt was his Victorian Britain. Both my wife and I loved this course, and we still laugh at Allitt’s impersonation of Queen Victoria. Great fun and highly recommended. The second course I enjoyed was History of the United States (2nd edition). Allitt is joined here by two other excellent lecturers…
Slate recently had an interesting article discussing the issue of replication of findings from experiments in social psychology. While I am an academic, the issue of replication does not come up much in the legal world. Most legal academic articles make normative arguments, although it is true that in some areas, such as legal history, issues similar to replication do arise. Perhaps I would feel differently if I had more experience with the issue of replication, but from my perspective replication seems like an essential aspect of science, even (or especially) soft social science. If one is relying on an experiment,…
Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge. I may have more to say about this next week, but for now I want to note a significant issue.
Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment. Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document. These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.
I have looked a bit more deeply into the Governor Rick Perry indictment. Unfortunately, the new information I have uncovered does not quiet my concerns that the indictment was improper. Quite the contrary.
The basis of the indictment is that Government Perry threatened to veto an appropriation passed by the Texas legislature for a public corruption unit on the ground that the head of the unit had committed a crime. Perry wanted the head of the unit to resign before he would approve the appropriation.
The indictment of Governor Rick Perry seems, at first glance, to be a political lawsuit without a substantial legal basis. The lawsuits stems from the Governor’s threatening to veto and then vetoing funds to a public corruption unit based on the head of the unit having committed the crime of driving while intoxicated.
According to news reports and the prosecutor’s statement, there are two charges in the indictment: “Grand jurors in Travis County charged Mr. Perry with abusing his official capacity and coercing a public servant, according to Michael McCrum, the special prosecutor assigned to the case.” The first claim is that Governor Perry improperly vetoed the funds passed by the Texas legislature. The idea seems to be that it was improper for the government to veto funds based on the head of a unit having committed a crime. The second claim is that he attempted to coerce the head of the public corruption unit to step down after her arrest for drunk driving by threatening to veto the funds unless she resigned.
My friend Randy Barnett has an interesting post discussing his views on libertarian policy and the Iraq War. He also discusses my recent series of posts detailing my change of position on the War. I strongly recommend Randy’s post.
I agree with virtually all of Randy’s analysis. In particular, I agree with his skepticism “that the ex post results means that the invasion of Iraq was a mistake ex ante.” The mere fact that the invasion of Iraq has in many ways turned out poorly does not necessarily mean it was a mistake. I recognize that it is possible to interpret my posts as drawing that problematic inference, but that was not my intention. Whether it makes sense to engage in an action ex ante should not be decided simply on the results, but on what made sense at the time. For example, it might make sense to undergo a medical procedure, even though we know that a certain percentage of the time it might lead to bad results. If the medical procedure happens to lead to a bad outcome, there is a sense in which it was a mistake to undergo the procedure. But the right way to analyze the decision is to ask whether we would make the same choice again, knowing what we did at the time. If we would attempt the medical procedure again, even though there is a chance of a bad result, then undergoing the procedure was the right decision. The same holds for public policy decisions.
With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.
Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).
John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation. See here and here. It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.
In the essay, we write:
Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics. It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented. It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles. Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.
For the convenience of readers, I thought I would list here my four posts detailing the reasons why I changed my position on the invasion of Iraq: