A Culture of Authenticity versus a Jurisprudence of Principle

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Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism in general or the legal formalism with which conservatives have long been associated. The obvious, but shallower reason, for this clash, is that our cultural elites of every kind are overwhelmingly left-liberal. The deeper reason is that much of our culture is so driven by questions of personal identity and authenticity that it has trouble even comprehending the impersonality of the principles that are at the heart of republican constitutionalism.

The Originalist, a play about Antonin Scalia, at the Arena Stage illustrates both of these problems. The conceit of the play is that Scalia has hired a liberal law clerk, Cat, and they argue about different cases. But the author does not spend nearly enough time explicating originalism or for that matter any other jurisprudence to make the play a battle of ideals. As I say in my review for City Journal, the playwright John Strand is no Tom Stoppard and “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”

It almost goes without saying that play trots out the usual stereotypes of conservatives.

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Amending the Seventh Amendment

I have been exploring the original meaning of the Seventh Amendment right to a civil jury trial.  Here, I want to step back from that discussion and instead address the desirability of the Seventh Amendment.

In my view, it is not clear that a strong civil jury trial right is desirable.  My reasons are similar to those that have been voiced by critics over the years.  The civil jury is expensive in terms of the time taken from jurors and to the litigating parties.  The civil jury is often not sufficiently expert to adjudicate complicated facts.  And the civil jury often does not apply the actual law but instead their own views of justice.  While the civil jury is a check on judges, I am not sure it is worth it.

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Originalists Need a Distinctive Theory of Precedent

In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.

Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.

Thus, my criticism of the opinions in Wynne is quite different from Michael’s.

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Reasonable Regulation of the Right to a Jury Trial

I have been blogging about the original meaning of the Seventh Amendment.  Here I want to discuss another issue concerning its meaning: how much the Amendment allows the legislature to change the rules governing jury trials? One concern about the Seventh Amendment is that it might be thought to freeze in place the precise common law at the time.  If the legal system changes in other ways, then those frozen rules might not have a coherent relation with the rest of the system. I am not sure that I find this complaint that serious.  Assuming that the common law rules were frozen…

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Creating a Unitary Supreme Court

I am grateful for Michael Greve’s post on my analysis of Our Two Supreme Courts. I wholly agree with his positive point. The political or aristocratic Court comes to the fore not only in constitutional cases, but in statutory interpretation cases that implicate constitutional values or important political issues. Preemption is a fine example because the broader is the scope of preemption, the more limited is the authority of the states.

I am in less agreement with his normative point. I had argued that the way to dissolve the difference between the legal and the political court was for the Court always to take the same formalist approach that it does in ordinary statutory cases, like interpreting the bankruptcy code. Michael doubts that such formalism is regularly  possible in constitutional law because of the open ended nature of constitutional provisions. But Mike Rappaport and I have argued previously that the common claims that constitutional provisions are abstract and need to be filled in by judges may well be false. Once we know more about their history, we can often determine a clearer meaning of the constitutional provision at issue.

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Which “Common Law” Does the Seventh Amendment Protect?

In my last post, I cited to Renee Lettow Lerner’s paper describing how the Seventh Amendment Jury Trial Right had been given a narrow meaning.  Here I want to address one of the issues concerning the original meaning of the Seventh Amendment.  The Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

One of the most important Seventh Amendment issues is the meaning of “common law.”  When the Seventh Amendment was being debated, some people opposed it on the ground that the common law right to a jury trial differed in the states and therefore it was not clear which version of the right should be protected and which version would be protected by the Seventh Amendment.

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The Failure of Originalism to Preserve the Civil Jury Trial

Recently, the Center for the Study of Constitutional Originalism at the University of San Diego hosted the presentation of a paper on the constitution right to a jury trial by Renee Lettow Lerner.  Lerner’s paper is entitled: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial and here is the abstract:

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Gay Marriage and Foreign Law

The New York Times runs an interesting story about dueling amicus briefs submitted in the gay marriage case before the Supreme Court about the extent of gay marriage in other countries, especially constitutional and liberal democracies.  The briefs disagree about the extent of gay marriage, in part because they use different measures for how to count the countries.

The question whether the Supreme Court ought to consider the laws of other countries in deciding whether to interpret the Constitution is one that has been actively debated in the law review literature.  I have largely neglected this literature, since it seems so obvious what the correct originalist answers are.  (But see this post by co-blogger John McGinnis, who does write in the area.)  First, considering the present law of other countries is obviously not directly relevant to the original meaning of a Constitution written in late 18th century America. Second, it is theoretically possible that the meaning of the clauses might make what other countries do relevant (for example, a clause that asks whether a rule is practicable), but I have not really seen a persuasive argument that attributes any such meaning to one of our constitutional clauses.

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Korematsu, National Power, and Individual Rights

One of the key cases in modern Constitutional Law is Korematsu v. United States, where the Supreme Court held that the exclusion of Japanese citizens from large parts of the West Coast was constitutional. (While the case technically did not cover the internment of the Japanese, the exclusion of Japanese from such a large area without any individualized suspicion renders both internment and exclusion to be largely subject to the same analysis that I make here.) This case is normally thought to represent an egregious failure on the part of the Supreme Court to enforce constitutional law.

But things are more complicated than they at first seem. To begin with, the normal argument is that the Supreme Court should have struck down the exclusion and internment as a violation of the Equal Protection Clause. But the Equal Protection Clause does not apply to the federal government. For that reason, the major nonoriginalist critics of Korematsu argue strenuously that the Equal Protection principles are somehow reverse incorporated or otherwise applied to the federal government. That ignores the text and is a mistake. For more of my views on the matter, see here.

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