Sunstein’s False Claim that Scalia Was a Living Constitutionalist

In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.”  This claim is contrary to the received wisdom about Scalia.  But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to  the progressive transformation of the United States.

But Sunstein’s arguments are weak.  First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.

Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home.  First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding.   Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism.

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The Ascent of Originalism: A Conversation with Michael Rappaport

Good Constitution

The many schools of originalism all face the same questions: does it merely perpetuate the dead hand of the past? What about the exclusion of women and blacks at the Founding? What does one do with the mountains of non-originalist precedent? This next podcast with our own Mike Rappaport, prompted by his new book that he co-authored with co-blogger John McGinnis entitled Originalism and the Good Constitution, focuses on the rise of originalism as an intrepretative methodology for Constitutional Law and attempts to answer these and other questions with a new framework called original methods originalism. Our discussion thus focuses on…

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The Zeitgeist and the Judiciary: a 100th Anniversary Reflection

A century ago, a brilliant young lawyer named Felix Frankfurter spoke at the 25th anniversary of the Harvard Law Review.  His speech was entitled “The Zeitgeist and the Judiciary.”

At 30, Frankfurter was already a central figure in progressive circles, and would prove one of the most influential American jurists of the 20th century.  During the first quarter-century of his adult life, he maintained a regular correspondence with Justice Holmes, regularly wrote legal commentary for Herbert Croly’s new magazine, The New Republic, co-founded the ACLU, and served as advisor to Franklin Roosevelt.  In the next quarter-century (1939-1963), he became one of the most influential and prolific Supreme Court justices in American history.

“The Zeitgeist and the Judiciary” is a remarkable exemplar of  early progressive jurisprudence.  His brief, candid remarks display the main aspects of the progressive political and constitutional project. 

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