A Focus Group on Originalism

These are the best of times and the worst of times for originalism. On the positive side, originalism has never been so discussed in the legal academy and, in the modern era, never have originalist arguments been taken so seriously on the Supreme Court. On the negative side, originalism has never been so fragmented with so many competing justifications and such fundamental differences in the methods for ascertaining the meaning of particular provisions of the Constitution.  And, as Steve Smith, has written in these pages, some originalists believe that the judiciary has such a large role to play in choosing how to make operational constitutional provisions deemed radically indeterminate that originalism seems no longer to create any restraints on the judiciary—one of its original, and, in Steve’s view, salutary functions.

Some of the current discontents of originalism may be an inevitable consequence of its success.  Academics do not succeed by parroting the old theories, but by minting new ones: the multiplication of justifications and methodologies for originalism is the inevitable result. But this academic economy of theorizing does not mean that originalism has not greatly been greatly enriched from being pushed and pulled by ambitious professors of varying ideologies.  The most salient questions about both the persuasiveness of originalism and its practice are clearer than they were in the days when it functioned as a theory of judicial restraint. And despite the differences among originalists,  originalists of various views are far less likely to talk past one another than were constitutional theorists of the past who began from utterly  incompatible premises.

Over the weekend, I met with group of mostly young  academics to talk about some of the internal debates within originalism.  What I heard would have cheered Steve Smith.

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Martha Bayles Responds to “Instead, We Played Music”

It is gratifying to see such an appreciative review of my book Through a Screen Darkly from Robert Reilly, who is a tough critic of the usual discourse about U.S. public diplomacy. Especially pleasing is the attention he pays to the contributions of the many veteran public diplomats I interviewed. He was one of them, and I learned more about the topic from these individuals than I possibly could have from any book.

Nonetheless, I hope that neither Mr. Reilly nor your readers will be put off by a little pushback.

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From the Rule of Law to the Triumph of the Will

 

shutterstock_203668402The arguments by which the Obama administration is countering lawsuits that seek to limit Obamacare subsidies to participants in “exchanges” established by states—a limit that is specified in the Obamacare law itself—have raised the outcome’s stakes. Administration officials argue that the plain, unmistakable, uncontested language of the Affordable Care Act (ACA) is less important than what they want the law to mean, and that hewing to its words would deprive millions of people of the subsidies that the administration had granted them regardless of those words. Therefore the courts should enforce what the administration wants rather than what the law says.

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The Road to Lawlessness

court 2There will be a Republican President again someday. This will happen. Democrats, having forgotten that fact, would do well to remember it. Suppose this happens too: Congress cuts taxes, stating in the preamble to the law that it intends to spur economic growth and, Laffer-style, boost revenue. The cuts fail to achieve that goal, so the President—on the grounds that a law should not be implemented in a manner contrary to its stated overall purpose—unilaterally orders the IRS to cut them some more.

After the arguments made to the D.C. and Fourth Circuits to justify the subsidies for coverage on federal Obamacare exchanges, the howls of indignation might be hard to separate from the howls of righteous vengeance. Because while the tax-cut scenario takes the case to eleven, the species of argument is the same: that the President is authorized to violate—or, more politely, let us say, reconceptualize—the letter of a law in the name of achieving its overriding purpose.

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A Star is Torn

In the Energy Star Program, the Energy Department rates energy-efficient and otherwise green appliances. The New York Times has reported that government officials in charge of Energy Star did not do a good job of monitoring compliance with the program’s standards and valorized a host of products that fall far short of the proclaimed criteria. In addition, some of the companies actively misled government officials.

Trial lawyers are now in the wings, ready to sue companies that  they allege were serpentine rather than stellar.  According to the Times, a congressman who represents a district where a company that used the Energy Star program has a large factory has introduced legislation to prevent class action lawsuits from being brought in connection with the Energy Star program.

In general, I believe that class actions for failure of a product to meet its quality claims are a mistake. 

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Originalism and Positivism: The Problem of Interpretive Contestation

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again. I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the…

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The Deflation of Rights

Supreme Court Hears Oral Arguments On Arizona Immigration LawPrint up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.

Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.

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The Thirteenth Amendment as a Conservative Counterrevolution

  In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…

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Where are Special Interests When You Need Them? The Problem of Unwanted Phone Calls

One problem with the political decisions, including those in a democracy, is the importance of special interests. Special or politically concentrated interests have an advantage in the political process and therefore are able to obtain special privileges and advantages that impose inefficient costs on the society. This is, of course, an old story. But the world seems to be more complicated than this. Sometimes one wonders why special interests do not seem to be pursuing their interests. And as a result, other special interests prevail when it seems they should not. I thought of this the other day when I picked up…

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