Recently, Laura Donahue, a professor at Georgetown Law and an expert on digital privacy, came to the Originalism Center at the University of San Diego to talk about her recent article, “The Original Fourth Amendment.” The article is a long one, nearly 150 pages long in a law journal, and it covers the development of search and seizure law through English, Colonial and American history. One of the messages that comes across is the familiar one that the Americans were Whigs, who took one strand of English thought that was protective of liberty, and wrote it into the Constitution.
Recently, Ann Althouse had a great post criticizing Jeffrey Toobin’s account of oral argument in the Supreme Court’s political gerrymandering case. Toobin had criticized Neal Gorsuch, portraying him as violating norms and as ineffective. But Althouse makes a strong case that this is largely in Toobin’s imagination. Sadly, this is not the first time Toobin has unfairly criticized an originalist justice. In this past post, I criticized Toobin’s unfair attack on Justice Thomas’s criticism of nonoriginalism. Apparently, Toobin sees his role as in part attempting to persuade the New Yorker’s audience that originalists are just so wrong.
Fans of the late Justice will treasure a new collection of his speeches.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.
The conservative movement in law has changed substantially in the last half century. At the beginning it was a reactionary movement. The core consensus was that the Warren Court has been out of control, acting more like politicians focused on changing society rather like justices following the law. Insofar as conservatives even had a theoretical critique, its essence varied. One was that Court was activist in that it failed to pay sufficient deference to the political branches. A second was that it abandoned the craft of law, generally defined as following precedent or neutral principles that can be derived from precedents and legal process. A third was that the Court had abandoned the principles of the Founding or intent of the Framers. A final was substantive: the Court’s decisions, particularly in the area of criminal justice, were simply too liberal.
Fifty years on, the movement looks completely different in theory, power, and effect. As to theory, public meaning originalism, albeit of different varieties, dominates. While there are disagreements about the degree of deference, if any, owed the political branches, there is a growing consensus that this question is just another one to be answered by originalism. Perhaps the most important unsettled question is the place of precedent in originalism. But the view that precedent should be a generative force in law is no longer widely supported by theorists on the right. And since conservatives are now adherents of originalism, their methods sometimes support liberal results, particularly in the area of criminal justice.
As to power, during the Warren years, only a very few conservative scholars of public law worked in its shadow. Now originalism has many advocates in the academy and outside, and almost all conservative scholars who publish on the theory of constitutionalism are originalists.
A lot of what occurs in academia these days is quite distressing. And it is enough to drive one further towards the tribal view of the other side being bad guys. Thus, it is important to try to find ways of avoiding this fall into the abyss. One of those ways is a commitment to academic ideals.
In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances. But defenders of living constitutionalism as an interpretive theory do have a response to this position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position.
First, the amendment process does not seem too hard, if we look at the six amendments that came closest to becoming law—those that obtained passage in Congress by 2/3 majorities but foundered in the state ratification process. Most of these amendments were not good ones and the most consequential would have made slavery legal and even entrenched that position against subsequent constitutional amendment.
It is true that most people today would favor the amendment banning child labor which passed Congress, but did not succeed at the ratification stage. But we argue that the amendment ultimately failed because Franklin Roosevelt decided not to push it: the amendment was too narrow an expansion of federal power for his purposes of centralized economic control.
This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine. While I have only skimmed the piece, it appears to tell a story similar to the one that I would.
Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies. One was his concurring opinion in Mistretta v. United States. In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional. While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission. Unlike other agencies, it did nothing else besides promulgating these guidelines. Thus, it was a junior varsity Congress.
The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Significantly, the two clauses are separated by an “and.” This “and” has led to an uncertainty about the relationship between the two clauses.