Living Constitutionalism on the Supreme Court’s Website

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred. …

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Goldfarb on the Language of the Law: A Response

Neil Goldfarb has written a blog post commenting on our paper, The Language of the Law and the Constitution.  The gist of his post is that the law is not a language in any of four categories of language that he recognizes.  But Goldfarb himself notes that words often have shades of meaning: they cannot be confined to a procrustean bed of meanings. There is no reason to take his list as exhaustive. Most significantly, Goldfarb fails to address our argument that the language of the law is a technical language.  There is little doubt that there are technical languages: many…

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Defining Officers of the United States

In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties.  I think the evidence that the paper discusses supports this conclusion. The common definition of office defined it broadly, as Chief Justice Marshall did in 1815, when he wrote it was “ ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.  If employed on the part…

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Who are Officers of the United States? The Inadequacy of the Buckley Standard

Jennifer Mascott gave a talk at the University of San Diego Originalism Center on her new paper, which is to be published in the Stanford Law Review, on Who are the Officers of the United States? The paper engages in originalist research on an important topic that modern originalist scholars have largely neglected: how to distinguish between officers, who are subject to the Appointments Clause procedures, and employees, who are not.  Mascott concludes that many more government positions constitute offices than modern law allows and therefore are subject to the requirements of the Constitution’s Appointments Clause. For many years, the question of…

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Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment

In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand.  In these cases, one might expect that the skills of the professional historian would be the most valuable.  Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians.  Instead, originalists have a made a large number of important advances in this area.  Thus, even in the hard areas, one cannot dismiss the…

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Historians and Originalists Part II: The Adequacy of Originalist Scholarship

In a prior post, I discussed some of the disagreements between historians and originalists.  I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation.  Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task. Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th…

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Originalism and the Future of Religious Freedom

fourteenth amendment

For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.

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The Constitution, Liquidation, and Originalism

Richard Reinsch, editor of this site, has written an interesting piece entitled The Liquid Constitution.  Richard emphasizes that there is a need to liquidate the meaning of unclear constitutional provisions, and notes that James Madison praised this approach.  Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people. Without engaging with his criticisms of originalism, I do want to note that the role of liquidation is an important issue within originalism, and that originalist scholars have begun to study the matter from an originalist perspective.  One issue is the extent…

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The Liquid Constitution

Water

Legal historian Mary Sarah Bilder’s op-ed in the Boston Globe means to level originalism. Her effort has produced responses from Lawrence Solum and from John McGinnis and Mike Rappaport on this site. The criticisms sum to the notion that Bilder is shooting scattershot rounds at a defined scholarly target.

Bilder’s argument is that the members of the Constitutional Convention did not have “the luxury of even imagining that each and every word possessed an invariable, sacred meaning.” Who said they did?

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Historians and Originalists Part I: The Context of the Debate

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement. One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend…

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