Originalism and Comparative Constitutional Law

One of the challenges often made to originalism is that so many other countries do not appear to follow it.  And if a large numbers of countries are not following it, then how can originalists claim that the failure to do so is illegitimate or unlawful?  In my view, this criticism of originalism is much weaker than is normally thought for two reasons.

1. First, the premise – that originalism is not followed throughout the world – is not at all clear. In part, there are places, like Australia, Turkey, Singapore and Malaysia, that do sometimes employ explicitly originalist arguments.

But this may only be the tip of the iceberg.  To begin with, some constitutions explicitly require what is wrongfully treated as nonoriginalist judicial review.  For example, the South African Constitution requires the courts to employ proportionality analysis.  If a South African court employs proportionality analysis, that is originalism, not nonoriginalism.

Moreover, if one follows original methods originalism – where originalism requires that interpreters employ the interpretive methods deemed applicable to the Constitution at the time of its enactment – then courts in other places which do not appear to be following originalism might actually be doing so.  For example, imagine a constitution were enacted in Europe today that did not specify how its provisions should be interpreted.  If the dominant mode of interpretation in that country and in Europe generally involved proportionality, then it might be reasonable to conclude that the constitution’s provisions were understood as requiring that they be interpreted using proportionality analysis.  Thus, one cannot simply look at a constitution, see that it is employing proportionality analysis, and conclude that it is nonoriginalist.  It might be following a type of originalism.

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The Anti-Democratic Party?

Apparently, Loretta Lynch, President Obama’s nominee to be Attorney General, holds that “I believe that the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here.” If people here illegally have a “right” to work does that not necessarily imply that we the people do not have the right to make immigration policy?  The “duty” to work is also interesting, but that’s a discussion for another day.

The Book of Judges


The restrained vision of the federal judiciary that has for some time dominated the jurisprudence of right-leaning American legal theorists and lawyers in this country is now under fire. In writings both academic and popular, many libertarian and classical liberal scholars clamor for the supposed symmetry of substantive due process or the bold recovery of an expansive listing of natural rights that is, we are told, embodied in the 9th Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Even George Will has reversed his own prior position on judicial restraint to now favor “judicial engagement” to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities, or what some might call the carefully qualified majorities of our republican constitution.

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Remembering Martha Derthick

derthick-140Martha Derthick, the grande dame of American federalism and a dear friend and mentor, died earlier this month at the age of 81.

I first met Professor Derthick in the early 1980s, when she directed the governmental studies programs at the Brookings Institution. She had previously taught at Harvard and Boston College (among other institutions) and, after her Brookings engagement, moved on to the University of Virginia, where she taught until her retirement in 1999. She remained a prolific author and an engaged participant in public debate in her post-retirement years. In those years I directed AEI’s Federalism Project. Martha was a frequent, enthusiastic, and well-nigh irreplaceable participant in our events, even as the trek from Charlottesville became increasingly traffic-snarled and time-consuming.

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Higher Education and the Long Arm of the Law, Part I


The National Labor Relations Board (NLRB) handed down a decision in December 2014 that has great import for the relationship of church and state as that relationship plays out through institutions of higher learning.[1]

The decision dealt with the Service Employees International Union’s attempt to organize contingent (part-time and non-tenure track) faculty at Pacific Lutheran University, a religiously affiliated institution. The NLRB, by a vote of 3 to 2, articulated with this decision two new principles: first, regarding labor regulation of religiously affiliated colleges and universities, and second, deciding whether and to what extent faculty are to be considered “management” and hence exempt from the Board’s jurisdiction.

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Unfunded Future Forgiveness

This weekend The New York Times presented an article about the current structure of student loan programs. Briefly: because of changes and tweaks to preexisting law, student loan payments are capped at ten percent of income, and debtors are eligible for nontaxable loan forgiveness on the balance after twenty years, or after ten years if they have a government or public interest job.

The enthusiasm of the Times reporter for this development slights three major problems with it. First, differential forgiveness could distort choices in the labor market, to the disadvantage of the private sector.

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Of Public Sector Millionaires


Life is a long succession of vested interests, though we are inclined to see everyone’s but our own. The term now having mainly a negative connotation, we usually think of some interests—namely those of a pecuniary nature—as being more vested than others. A money-interest is widely thought to be more corrupting than any other. If someone does something of which we disapprove, something dishonest, and we discover that he has benefited financially from it, we say aha, now we understand!

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Ramsey and Tillman on the Receive Ambassadors Clause

Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional.  See also the posts by David Bernstein and Peter Spiro.

Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”

Seth argues for a strict reading of ambassador and public minister.  He argues that Netanyahu is neither an ambassador nor a public minister.  An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’”  He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers.  See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power).  See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power).  As a reading of the language, Seth’s argument here is quite plausible.

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Eggstraterrritorial Federalism

chicken and egg

The Wall Street Journal, among other news outlets, reports that egg prices in California have risen sharply and are way out of line with prices elsewhere in the West. In 2008, California voters passed an initiative requiring chickens to have much, much bigger cages. California egg farmers protested about the attendant disadvantages. In 2010, the California legislature enacted a law requiring the layers of imported eggs—some four billion per year—to have equally spacious accommodations. The hens have since taken out home improvement loans and installed wall-to-wall carpets. For poorly understood reasons, however, there are fewer of them, and therefore fewer eggs, and therefore…

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Obama’s Nod to Crony Philanthropy

Golden Icon of Heart in the Hand on Compass.

In his January 21 column for Forbes (Obama’s SOTU Surprise: A Break for Charity”) Manhattan Institute Vice President Howard Husock speculates that the Obama Administration may at last be coming round to better appreciate the role of philanthropy in American flourishing.  The Obama Administration is now proposing to shrink the “trust fund loophole” in favor of nonprofits, meaning that heirs would be subject to capital gains taxes on the original basis of the assets while charities would not.

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