Another Argument for Originalism

In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).

Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.

If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law.  The law is not what the rule of recognition requires, as in the positivist theory.  Nor is the law what would lead to the best results in general, as some versions of the normative theory hold.  Instead, the law is determined through an idealized conception of the law.

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The Dormant Commerce Clause and the Exclusive Commerce Power

Mike Ramsey has another post about the Dormant Commerce Clause (DCC), following up on my previous post and this post by Mike Greve.  Mike Ramsey attempts to set forth the strongest arguments against the DCC, with which I agree.  There is no good original meaning argument for the DCC.

There is, however, a somewhat stronger argument for an exclusive Commerce Power.  Unlike the DCC, one could conceivably conclude that the Commerce Clause provides exclusive authority to the federal government to regulate interstate commerce.  That would differ from the DCC because the exclusive authority would take away from the states all authority to regulate interstate commerce, not just the power to discriminate against interstate commerce.

While Chief Justice Marshall toyed with this argument, and there us something textually to be said for it, I still don’t think it works for three reasons.  First, the Commerce Clause does not say that it is exclusive and one would not normally infer from the language that the power was exclusive.  Second, as Mike Ramsey notes, the Constitution seems to provide for exclusive power by doing so expressly, as when it states that Congress shall have the power “to exercise exclusive  legislation in all cases whatsoever” over the District of Columbia.  Third, the Constitution seems to recognize that the states can pass laws involving interstate and foreign commerce, as it provides that “no state shall, without the Consent of the Congress, lay any Imposes or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws” (although there is a complicated counterargument involving this provision).

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The Sixth Annual Originalism Works-in-Progress Conference

Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference.  The conference brings together many of the leading originalist scholars, both advocates and critics of originalism.  This year’s conference – the Sixth – is being held on February 20-21 at the University of San Diego.  Here is the line up of paper presenters and commentators: Ian Bartrum(UNLV), Two Dogmas of Originalism Commentator:Larry Solum (Georgetown) William Baude(Chicago), Is Originalism the Law? Commentator:Matt Adler (Duke) Richard Ekins(Oxford), Constitutional Interpretation as Statutory Interpretation Commentator:Fred Schauer (Virginia) James Ely(Vanderbilt), The Contract Clause: Origins and Early Development Commentator:Michael McConnell (Stanford) David Moore(BYU), The Broader Founding and International Law Commentator:David Golove (NYU) Christina…

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When Common Law Rights are Constitutionalized

One important methodological issue involves the question of how to interpret common law rights that are made part of the Constitution.  Common law rights had different features than constitutional rights.  In particular, to what extent does a common law right, which in at least certain ways was subject to change or adjustment, become frozen when it was made part of the Constitution?  The issue is an important one because so many of constitutional rights, especially those in the Bill of Rights, were initially common law rights.

There are at least three possible positions one might have about this issue:

1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.

2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.

3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.

While I have not fully made up my mind, these days I lean towards the intermediate position.  Let me try to explain why.  There is a lot to say about this, but I will try focus on some of the essentials. 

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The Court’s Alleged Power to Ignore the Original Meaning

In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism.  Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument.  I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning…

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Constitutional Interpretation in Republican and Mixed Regimes

In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods.  This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty.  In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history.   The distinctive interpretative method of republican constitutionalism is originalism:  the meaning chosen by the people when the constitution is passed binds the people at later times.

In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element.

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Originalism and the Good Constitution at the Cato Institute

Earlier this week, John McGinnis and I appeared at the Cato Institute to make a presentation on our book, Originalism and the Good Constitution.  The event was moderated by Trevor Burrus of Cato and commentary was supplied by Roger Pilon of Cato and by Brianne Gorad of the Constitutional Accountability Center.  You can watch the video here. Roger took issue with our book from a natural rights perspective.  He accused the book of endorsing Borkianism and modern constitutional law, not the original constitution, on the ground that we left too much room for democracy.  But I believe that Roger is mistaken. …

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Originalism and Ideology

I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting: By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.]  While a review of…

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Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

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The Drafters and the Ratifiers

It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters.  I am not so sure. To begin with, this distinguishing between the drafters and the ratifiers appears to turn on an original intent (versus an original public meaning) understanding of originalism.  Under an original public meaning apprach, it is the meaning that a reasonable and knowledgeable person would give to the Constitution.  And that meaning is no more likely to be that of the ratifiers than the drafters. But some people favor the original intent approach.  Yet, even under this approach,…

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