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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Strategy and Originalism

Over at the Liberty Law  Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists.  Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution?  This is a difficult question.  Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem.  Relying on this perspective, Smith argues for what he calls a strategic originalism.  I respond to Smith’s argument here. I have also thought about strategic considerations.  I discuss one strategy for promoting originalism in my response to Smith: Perhaps the biggest obstacle…

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Justice Thomas: Mr. Republican

(Photo by David Hume Kennerly/Getty Images)

Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.

In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.

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Is Libertarianism the Law? Part II: Using the Modalities to Support Libertarian Results

In this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions.  Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory.  While the law under these theories does place some limits on the justices, those limits are relevatively weak.  To make this argument, I attempt to show how these theories (or at least one of them in this post) would allow a libertarian Supreme Court justice to reach significantly libertarian results.  Since these theorists argue that these theories allow liberal results, it seems clear that the constraints they impose are not substantial.

In my previous post, I briefly described Dick Fallon’s Constructivists Coherence Theory of constitutional law, which requires the justices to decide cases based on five types of constitutional arguments: text, intent, theory, precedent, and values.  Here I will show how a libertarian could use these arguments to reach libertarian results.

Let me start with the text.  While the text might seem like a significant constraint, Fallon’s theory renders it much less substantial because he allows the interpreter to rely on either the original or the contemporary meaning.  Based on either the original or contemporary meaning, the text of the Takings Clause, the Privileges or Immunities Clause, the Contracts Clause, the Ninth Amendment, and the Due Process Clause could strongly support libertarian results.  (Other clauses might also be important, such as a First Amendment protection of commercial speech.)        

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Garland’s “Centrism” Is No Reason for Confirmation

Merrick Garland, President Obama’s nominee to the Supreme Court, has been touted as a centrist on the court of appeals. Whatever reasons there are to confirm him, that should not be one of them.

First, the centrism of a lower court judge is likely an illusion. He is bound by Supreme Court precedent and thus has limited ability to change the status quo. Thus, he tends to be centrist simply by virtue of his position. To be sure, there are some lawless circuit judges, who do not make a good faith effort to follow Supreme Court precedent, but they are relatively few. And none of these could be serious candidates for the Supreme Court, where a record of reversal and obvious disobedience would be seized on by the opposition.

Ruth Bader Ginsburg was pretty faithful in applying precedents when she, like Garland, was on the D.C. circuit. And she too was praised as centrist. But on the Supreme Court she has led the left on the Court. Some of her rulings and views are in fact outlandish, if not Orwellian.

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Scalia with Reagan: An Iconic, but Fading, Photo

Screenshot (14)

Many obituaries of Antonin Scalia were accompanied by a picture of the justice and Ronald Reagan standing together on the day of his nomination. And that photograph perfectly captures Scalia’s importance to the American polity. Scalia changed our jurisprudence as much as Reagan changed our politics.

In an essay at City Journal I explore some of the deep connections between these two iconic figures of the conservative movement:

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Seventh Originalism Works in Progress Conference

Recently, the Originalism Center at the University of San Diego held its Seventh Annual Originalism Works-in-Progress Conference.  Each year we videotape all of the proceedings for those who are interested in viewing the conference.  This year’s proceedings are here. The following papers were given: 1. Will Baude (Chicago) and Stephen Sachs (Duke), The Law of Interpretation Commentator: Randy Barnett (Georgetown) 2.  Jamal Greene (Columbia), Originalism, Constitutional Rules, and the Separation of Powers Commentator: Michael McConnell (Stanford) 3.  Kurt Lash (Illinois), The Amendment, the Act, and the Article: Reconstructing the Historical Relationship Between the Fourteenth Amendment, the 1866 Civil Rights Act and the Comity Clause of Article…

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Mark Graber’s Critique of Justice Scalia’s Jurisprudence

Over at Balkinization, Mark Graber recently had a post entitled “Justice Scalia’s Orwellian Jurisprudence,” which claimed that Scalia paraded as an advocate of judicial restraint, but was actually an activist.  Graber also claims that Scalia said he was an originalist, but ignored originalist history.

While Graber’s post has some legitimate criticisms of Scalia, which I will discuss in a moment, it is sadly marred by his claim about Scalia advocating judicial restraint.  I am not aware of Scalia claiming to favor judicial restraint.  Despite saying that Scalia advocated such restraint, Graber does not provide any specific evidence that Scalia actually defended this position.  (If anyone has such evidence, I would be genuinely interested in seeing it.)  In his Matter of Interpretation, Scalia says:

Textualism should not be confused with so called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrespute. I am not a strict constructionist, and no ought to be – though better that than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.

Thus, I do not think Scalia advocates judicial restraint.  And unless he has some other evidence, I believe Graber should retract his charge.

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Scalia and the Jurisprudence of Original Sin

Adalet Heykeli

For those whose knowledge of Justice Scalia was limited to a casual acquaintance with the exquisite certitude of his judicial writings, the tone of his son’s moving homily—suffused, to what surely would have been the late jurist’s liking, with talk of grace and sin—must have been jarring. But Scalia’s judicial philosophy was always modest, not just with respect to the judge’s role in the constitutional orbit—that much is well known, or should be—but also when it came to the inherent limits of human knowing. Scalia’s was a jurisprudence not merely of original meaning, but of original sin.

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Partisanship, Nonpartisanship, and Nino

American Election

The Republicans are already backing off a bit or more from their hastily conceived policy of obstruction. There are loads of precedents for the obstruction, engaged in by both parties. Democratic whining about its deployment against President Obama’s nominee is as cheeky as it is hypocritical. Still, the higher road—the electorally more effective road, too—is perfect respect for constitutional forms.

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