One of the questions I had when I became a professor of law was “What does it mean to profess law?” Another: “What law is it that I am to profess?”
On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.
In a recent post on Law and Liberty, Mark Pulliam lambasted the idea of a more “rigorous standard of judicial review, across the board, when laws are challenged” called “judicial engagement.” He claims that those of us who advocate judicial engagement presume that judges are untainted by bias or personal predilections whereas they “are just government officials who wear robes, no different (and certainly no more noble or wise) than any other functionary of the state.”
Judicial engagement does not make any such presumption. Judges are no different from any other people. But the office of a judge is different. A judge has different incentives than a legislator because of the nature of his or her office, which renders him or her less vulnerable to manipulation by interest groups or political pressure.
Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought. One is the shift from original intent to original public meaning. Another is the shift from a focus on constraint to other justifications for originalism. And a third is the acceptance by some of a construction zone.
I am not a fan of the way the term “the New Originalism” is used, in part because it focuses only on a few aspects of the changes in Originalist Theory. But let’s accept the term. There is one aspect of the New Originalism – of recent trends in Originalist Theory – that is not usually recognized: the emergence of a belief in the general common law. This emergence relates to some of the other themes of the New Originalism – in particular a shift from a focus on constraint to accuracy about the original meaning.
Back in the 1980s, there was a leading view among originalists about the federal common law: it was unconstitutional. This view was applied to the federal common law of Swift v. Tyson that was eliminated by Erie v. Tompkins. This view was also applied to the “new” federal common law that emerged with Erie. Both of these applications were justified by plausible readings of the constitutional text and connected up with the old originalism’s distrust of judicial discretion, which federal common law provides. While Justice Scalia was one of the leaders of this approach, he was not consistent about it; I can still remember discussing with others our disappointment that the Justice had written a federal common law opinion in Boyle v. United Technologies.
During oral arguments in Obergefell v. Hodges (2015), Justice Ginsburg asked a question that has heartened the supporters of marriage revision:
We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down. And no State was allowed to have such a—such a marriage anymore. Would that be a choice that a State should be allowed to have?
Referring to this question, London’s Guardian newspaper gushed: “Ruth Bader Ginsburg Eviscerates Same-Sex Marriage Opponents in Court.”
In his brilliant book The Ideological Origins of the American Revolution Bernard Bailyn wrote: “English law—as authority as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.” The Constitution itself was a product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. Understanding the Constitution correctly depends on giving appropriate weight to its common law background.
The judicial duty of clarity along with judicial methods of clarification reflects the common law background of judicial review.
When judges interpret federal statutes, are they interpreting laws? What should be the obvious answer to this question is complicated by a recent book, Judging Statutes, by the Chief Judge of the United States Court of Appeals for the Second Circuit, Robert A. Katzmann. Judge Katzmann shows us how a well-informed judge approaches difficult questions of statutory interpretation. Along the way, he raises challenging questions about what contemporary statutes are.
This conversation with Roger Scruton engages his defense of the conservative disposition. Scruton’s just-released book, How to be a Conservative, might be said to take on the challenge Friedrich Hayek issued in his famous essay “Why I Am Not a Conservative.” There, you will recall, Hayek argued that conservatism does not offer a program, or any substantive content that would affirm a free society. It is always in prudential retreat. This conversation explores Scruton’s Burkean-informed notion that tradition and habit aren’t blind guides, but are teachers and modes of social knowledge by which the perennial problem of social coordination is…