Mike Rappaport and I have defended the proposition that the Constitution is written in the language of the law. We recently noted in a post that much of modern originalist scholarship by academics relies on this language in interpreting provisions of the Constitution.
Another important indication of this legal turn in originalism is Reading Law: The Interpretation of Legal Texts by the late Antonin Scalia and Bryan Garner. There they suggest that interpretation of law must be guided by canons of interpretation and offer an analysis of fifty seven such rules. While some of these canons might be considered purely linguistic, many others are clearly legal such as the rule of lenity, the absurdity rule, and the rule that implied repeals are disfavored.
The renewed attention to legal interpretive rules also reflects the rise of legal formalism after its eclipse by legal realism.
Kwame Nkrumah, the first president of independent Ghana, was known to have said, “Seek ye first the political kingdom.” Nkrumah sought and found it, and within a few years his formerly prospering country was bankrupt, obliged to spend several decades trying to recover from his short reign.
Within quite a range of circumstances, purely political action, however necessary it might sometimes be, does not produce the happy economic results expected of it. Prosperity for whole nations or large groups of people cannot simply be conjured by political fiat from a total economic product that already exists. The people themselves must have the attributes necessary to prosper; and no amount of political posturing by their leaders, whether they be self-appointed or democratically elected, will give them those attributes.
It is the thesis of Jason L. Riley’s short, bracing and eloquent polemic False Black Power? that America’s black political leaders, and their white liberal allies, have hindered rather than advanced the progress of America’s black population.
In antebellum America, the U.S. underwent what historians call “the market revolution.” This is a movement analogous to the “Great Transformation” Karl Polanyi sketched in England and Europe. (Interestingly, Polanyi himself excepts the American experience from the process he outlines given the availability of land for the taking in the U.S. relative to Europe.) The penetration of the market and market forces into the everyday lives of everyday people separates the period of the market revolution and afterward from the time before it. The rise of wage labor and production for markets, rather than production largely for one’s self and one’s family, created different rhythms and risks in life relative to agrarian life prior to the rise of that system.
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”
But the Framers themselves anticipated the need for periodic revision of our national charter, providing, in Article V, a mechanism for its amendment. That mechanism has been invoked 27 times, so far.
Donald Trump’s judicial nominations have been the most successful part of a presidency that has often misfired. The nominees are not only a tribute to the President but to an idea and to an organization. The idea is originalism—the notion that the Constitution’s provisions should be interpreted according the meaning they had at the time they were enacted. They should not become vessels for judges to update their meaning.
The organization is the Federalist Society. It is established around the ideal of originalism, and enlists thousands of lawyers around the nation in defending it. Now more than thirty years old, it has gained in strength over the decades. And some of its best and most articulate members have become Trump’s nominees for the federal district and appellate courts.
The combination of a powerful idea and a far flung organization has made it easy for Republicans to unite behind the President’s nominees, as they have not yet been able to unite behind any other policy of importance. And the result has also been to make the Democrats look foolish and extreme, because originalism has a common sense appeal that is difficult to attack and the nominees have qualifications and abilities that are difficult to assail.
The hearing of Joan Larsen and Amy Coney Barrett for positions on the federal appellate courts showed that the Democratic Senators, unable to attack originalism frontally, resorted to assaults that were either ineffective or harmed their cause.
U.S. Senator Roman Hruska, despite his patrician-sounding name, is most famous for his praise of the common man. Hruska, a Nebraska Republican, made the following remark on behalf of Judge Harrold Carswell’s 1970 nomination to the Supreme Court:
Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?
Like Judge Carswell before him, Judge Richard Posner is one of the very few Americans honored with a lifetime appointment to the federal courts of appeal. And like Judge Carswell, Judge Posner is one of the even smaller minority ever considered for (though never appointed to) the Supreme Court.
The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Significantly, the two clauses are separated by an “and.” This “and” has led to an uncertainty about the relationship between the two clauses.
Mark Lilla is always worth reading, even if he is not always convincing. His latest book makes a straightforward argument that can be reproduced in a syllogism: The Democratic Party is the only hope for America; identity politics is tearing the Democratic Party apart; therefore the country is imperiled by identity politics.
The debate in Washington over who’s to blame for the slow pace in filling judicial vacancies (or whether the pace is even slow to begin with) reflects an assumption that is shared by both sides: that the Senate should generally defer to the President in the confirmation process.