The Declaration of Independence and the U.S. Constitution

What is the relationship between these documents, especially for interpreting the Constitution?  There are several different possibilities.

1. Largely Unrelated. This is the conventional view in constitutional law.  Under this view, one generally can ignore the Declaration when interpreting the Constitution.  One justification is that the Declaration had a limited purpose – announcing to the world that the US was independent – and that was concluded by the end of the Revolutionary War.

2. Significant as a Document. Under this view, the principles announced in the Declaration are important guides to the meaning of the Constitution.  The force of the Declaration comes from the fact that it is one of the foundational documents in US history.  While not the standard view in either  originalist or conventional constitutional law, it does have some adherents.

3. Significant as Evidence of Political Principles. Under this view, the Constitution should be interpreted in accordance with certain important political principles, such as natural law or traditional common law principles.  The Declaration is evidence that natural law principles were widely accepted by the people in the latter part of the 18th  The reason for employing these principles, however, is not that they are in the Declaration, but that they were widely accepted.

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The Bill of Rights

December 15 was Bill of Rights Day.  People have different reactions to the Bill.  For some, it is the most important feature of the Constitution, indicating and protecting the rights that people enjoy.  The rest of the Constitution may be a good one, but it is these rights that are essential.  For others, the Bill of Rights is a regrettable feature that gave the Court the opportunity to govern the country in many areas in whatever it desires.

My view is somewhere in between.  I believe that the structural features of the Constitution – the separation of powers and federalism – are key features for preserving liberty and good government.  But I also believe that the individual rights are an important part of the constitutional mix, protecting substantial interests against government intrusion.  Significantly, the Bill of Rights is primarily enforced through a feature of the separation of powers – judicial review.

It is often forgotten that the Bill was initially applied only to the federal government, not to the states.  In many ways, it was a federalism provision, preventing the distant federal government from infringing on the rights of people.  It was not that people believed that the states should be able to violate those rights.  Instead, they believed that many of those rights were already protected by state bills of rights and that the state governments could be better trusted to protect those rights.

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Is Original Methods Originalism Based on a Normative Argument? A Response to Jack Balkin

Over at Balkinization, Jack Balkin has a response to the Liberty Forum on Steve Smith’s essay on the Original Decision.  In my essay, I had some critical things to say about Jack’s view and Jack pushes back against them.  Unfortunately, I believe Jack appears to misunderstand the originalist theory that John McGinnis and I present in our book, Originalism and the Good Constitution.

I had criticized Jack’s version on the ground that it used normative arguments to adopt a thin theory of the Constitution’s original meaning.  As Jack wrote:

Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute “original meaning” for purposes of constitutional interpretation.  There is no natural and value-free way to make this selection.  It cannot be settled by the meaning of “meaning,” much less the meaning of “original.”  It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have.

Jack claims that McGinnis and I also adopt our original methods approach based on normative considerations.  Jack writes:

That is, their account of original methods originalism is not driven by the fact that this is simply what an accurate interpretation of a text is. Rather this choice is driven by their deeper theory of why originalism is justified in the first place. They argue that combing adherence to constitutional rules created by a supermajority with original interpretive methods achieves the best consequences for a polity, and that this — not democracy or the rule of law — is the basis on which originalism can be justified.  But both of these are value choices:  I want to make sure that the Constitution maintains democratic legitimacy over time, they want to ensure that the Constitution produces good consequences.

Unfortunately, this is not correct.  We make two arguments in favor of original methods originalism.  The first is interpretive (or positive in contrast to normative).  We argue that determining the original meaning of the text requires that one make reference to the original methods.  See page 117-126 of our book.

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Philosophical Absolutes and the Constitution

juengling_kappesIn his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.

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Constitutional Structure and the Modern Commerce Power

In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution.  The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless.  If a broad commerce power places no limits on Congress’s power, then it is clearly mistaken. The second structure feature applies in less extreme cases.  Even if Congress’s commerce power does have limits, it should not be read so broadly as to render many of the other enumerated powers surplusage.  This structural feature…

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Originalism and Big Data

Big Data makes the past more present. Recently, a website provided a virtual tour of a picture exhibition that Jane Austen saw in 1813. This site demonstrates how information technology, including big data, can make us closer to the past than ever before. Indeed, we are becoming in some sense closer to past than the denizens of the past themselves. Few people in 1813 attended this famous exhibition, but everyone today is only a click away from a virtual tour. This increasing capacity has large implications in subjects as diverse as literary criticism and constitutional interpretation.

For instance, another example of our capacity to get closer to the past would be our ability to map all the uses of a word (like commerce) at the time that word was used in a document (like the Constitution). Few people could attend the 1813 art exhibition but no one in 1789 could systematically catalog all the uses of a word.

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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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