Is Griswold v. Connecticut Consistent with the Original Meaning?

Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it). In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum. But is Griswold in…

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Is Originalism the Law?: The Basis of Nonoriginalism

In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote: To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues,…

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Has “Originalism” Lost Its Way?

We all know the basic story. In the 1960s and 70s, the Supreme Court rendered decisions and announced doctrines that seemed to have only the remotest connection, if any, to the actual Constitution that the enactors had thought they were adopting. Roe v. Wade was perhaps the most egregious example. These decisions and doctrines seemed in severe tension with American commitments to democratic decision-making and rule of law. In the academy, one response to this perceived tension was a massive project, still on-going, to rationalize the Court’s doings. A different response was the emergence of a movement usually called “originalism.”

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The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions

In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.

I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.

A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.

But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.

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The Ascent of Originalism: A Conversation with Michael Rappaport

Good Constitution

The many schools of originalism all face the same questions: does it merely perpetuate the dead hand of the past? What about the exclusion of women and blacks at the Founding? What does one do with the mountains of non-originalist precedent? This next podcast with our own Mike Rappaport, prompted by his new book that he co-authored with co-blogger John McGinnis entitled Originalism and the Good Constitution, focuses on the rise of originalism as an intrepretative methodology for Constitutional Law and attempts to answer these and other questions with a new framework called original methods originalism. Our discussion thus focuses on…

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Is Originalism the Law?: The Constitution in Exile Problem

In the past, I have discussed the justification for originalism that the original meaning of the Constitution is the law. Under this positivist view, originalism is the law and and therefore one can make a normative argument that the original meaning should be followed. I have expressed skepticism about this argument: my tentative position is that the law allows, within significant limits, both originalism and nonoriginalism.

Steve Sachs has a new paper out that attempts to develop the positivist originalist argument further. In The “Constitution in Exile” as a Problem for Legal Theory, Steve in part responds to my post questioning this positivist argument:

On its face, the jurisprudential objection is quite plausible. It has even persuaded some originalists. Michael Rappaport, for example, straightforwardly defends originalism as a “desirable” reform program, rather than as a consequence of “following the law.” He notes that “people are in jail in the U.S.—lots of them—for violating laws that are inconsistent with the Constitution’s original meaning,” and that “nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.” In this context, “[w]hat does it mean to say that the Constitution’s original meaning is the law?” More generally, “[w]hat does it mean for something to be the law, if the legal system is not enforcing it?”

Steve’s paper is excellent and I strongly recommend it. The paper contains all types of interesting insights from which I learned quite a bit. But in the end the paper does not really move me any closer to the view that the original meaning is the law under positivism.

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A Toast to Edwin Meese

I worked at the Department of Justice during the tenure of Attorney General Edwin Meese and last Friday I had the pleasure of attending a dinner is his honor.  My friend and colleague, Steve Calabresi, gave a wonderful speech, suggesting that General Meese was the most consequential of all Attorneys General. While I have not made a study of the over seventy people who have held the office, I heartily agree with Steve that General Meese left an extraordinary legacy for law and liberty that is worth recalling.

It is hard to remember just how problematic was the legal culture when General Meese took office. Many people accused the Warren Court of numerous infidelities to the Constitution, but the Burger Court may well have committed grosser blunders. It issued the opinion in  Roe v. Wade, a decision singularly untethered to the Constitution.  Politicians had previously criticized the Court, but more as a matter of political expediency than as a matter of legal principle.  Richard Nixon, for instance, had called for “strict construction,” which was essentially code for curbing the rights the Warren Court had minted for the criminally accused.

General Meese, by contrast, did not simply suggest that some individual decisions were wrong, but provided a theory of why they were wrong. In a series of speeches, he  argued that many recent decisions  did not follow the original meaning of the Constitution and it was only that meaning that justified judges invalidating the laws of the democratic branches.  He elevated the debate to one of principle, rather than politics, and  to the question of what secures an enduring constitutional republic, rather than what appears good for day-to-day policy.

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Is Justice Alito Drifting from His Judicial Minimalism Moorings?

Supreme Court Justice Samuel Alito has been closely associated with an approach to constitutional interpretation commonly referred to as judicial minimalism, in which a justice will decide a case on the narrowest basis possible. As he put it in his majority opinion in NASA v. Nelson (2011), the Court should decide only the narrowest question “before us and leave broader issues for another day.” However, his concurrence in the judgment recently in Bond v. United States (2014) raises an interesting question: Is he beginning to waver from his commitment of judicial minimalism?

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Partisanship versus Jurisprudence in Judicial Polarization


In a recent article in the New York Times Adam Liptak describes the increasingly partisan splits on the Supreme Court. More than at any time in its history, he argues, the divisions in cases follow partisan as well as ideological alignments. Thus, today the five justices appointed by Republican Presidents (the Chief Justice, Scalia, Kennedy, Thomas and Alito) vote consistently more conservatively than those appointed by Democratic Presidents (Ginsburg, Breyer, Sotomayor, Kagan).

For the moment I will accept Liptak’s statistics and focus on his explanations. Liptak argues that partisan polarization is the result of  increased polarization more generally, as Republicans and Democrats move to become cohesive ideological parties, distant in their policy preferences. Moreover, Liptak argues Presidents have become better at predicting justices’ votes. These factors are certainly relevant, but I think they miss one important change. Originalism and its often close cousin in statutory interpretation—textualism— today create a larger gulf in jurisprudential approaches to the Constitution and statutes between Republican and Democratic appointees.

There was not such a consistent jurisprudential chasm in the Court for much of the latter part of the twentieth century. There were no originalists on the Court when Scalia joined it. Thomas then became another powerful originalist voice. While Alito and Roberts are not pure originalists, the original meaning of the text has a strong pull for them even if precedents restrain the extent of its power. Their opinions on the commerce clause in Sibelius are excellent examples of the power of the text; the Democratic appointees did not even substantially respond to the originalist arguments.

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