Why a Republican Senate Would Be Best for the Rule of Law

There has been a lot of discussion in the blogosphere about what candidate would be better for the rule of law—Hillary Clinton or Donald Trump. At City Journal I recently pointed out that both candidates pose some legal dangers.

But whoever is elected President, there can be no doubt that a Republican Senate would be best for originalism and thus the long-term prospects of the rule of rule. Begin with the election of Clinton, because that is the far more probable outcome and thus should be counted most heavily in the calculus.  She would nominate justices who are outright hostile to the meaning of the Constitution.  At the Presidential debate she said nothing about wanting justices who would follow the law, just judges who have empathy and who would follow her litmus tests of being in favor of Roe and against Citizens United. That latter comments were too much even for the Washington Post.

Even more importantly, she comes from a progressive movement that is dedicated to transforming the Constitution without going through the amendment process. As I said in my City Journal essay:

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Justice Scalia and Congress’s Power to Regulate Immigration

In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas.  But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds.  One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration. In Arizona v. United States, Justice Scalia started strong, initially questioning the federal…

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The Constitutional Work Before Us

Capitol Dome with Dark Storm Sky

The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.

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Eighth Annual Originalism Works-in-Progress Conference

The University of San Diego's Center for the Study of Constitutional Originalism has announced the papers and commentators for the Eighth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 17-18, 2017 at the University of San Diego Law School.   They are: Randy Barnett (Georgetown) & Evan Bernick (Institute for Justice), The Letter and the Spirit: A Theory of Good Faith Constitutional Construction. Commentator: John McGinnis (Northwestern) Will Baude (Chicago), Constitutional Liquidation Commentator: Bernadette Meyler (Stanford) Mitch Berman (University of Pennsylvania), Our Principled Constitution Commentator: Stephen Sachs (Duke) Jud Campbell (Richmond), Natural Rights and the First Amendment Commentator: Fred Schauer (Virginia) James Fox (Stetson), Black Originalism:…

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The Inconsistency of Justice Scalia’s Originalism

With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles.  I certainly think it is important for all justices, especially originalist justices, to follow originalist principles.  But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.

It is hard to be a justice.  One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing.  The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them.  Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.

In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation).  That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing.  Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided.  It is much harder to be the originalist.

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Constitutional Change, Article V, and the Presidential Election

Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election.  The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago.  Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.

It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.

It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine.  Many nonoriginalists resist being described as living constitutionalists.  Strauss embraces it.  He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.

Strauss believes two main things about constitutional change.  First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions.  In fact, he believes that constitutional amendments are largely irrelevant.  Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution.  The way that is actually practiced – where judges follow a common law like system – is better.

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Originalism, Changing Meanings, and Stable Meanings

One of the criticisms made against originalism by historians is that originalism fails to take into account that word meanings change over time.  In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed.  Therefore, originalism is problematic because it assumes that traditional word meanings are stable. Unfortunately, this charge by historians turns out to be largely mistaken.  If some originalists assume that word meanings were stable, then that would be an argument against those originalists.  But it would not condemn originalism generally, since nothing in originalism requires that word meanings be…

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Why Libertarians Should be Originalists

Richard Primus has argued that it would not make sense for a libertarian to be an originalist. But his arguments impose an unreasonably high standard for a libertarian’s choice of interpretive method, and reflect, like another recent post, a misunderstanding of originalism.

First, he says that the Constitution does not entrench libertarian principles as such.  True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian  who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism.  Instead, the question should be whether an originalist view would move constitutional law today toward  more libertarian results than plausible competing interpretive theories. And here the answer is yes.

First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers.

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Toobin on Justice Thomas’ Alleged Arrogance

While I was on vacation, Jeffrey Toobin published a hit piece on Clarence Thomas in the New Yorker entitled “Clarence Thomas Has His Own Constitution.” Sadly, the piece is filled with problematic criticisms of the justice.

Happily, the piece starts with a bit of a defense of Thomas against criticisms. While many people criticize Thomas as either a Scalia clone or not hard working, Toobin acknowledges that these charges are not true. In fact, Toobin notes that Thomas is by far the most active writer on the Court, with twice as many opinions as his nearest competitor on the Court. Moreover, many of Thomas’ opinions are solo opinions that were not joined by Scalia.

But that leads Toobin to his criticism of Thomas. Toobin in essence claims that Thomas is an arrogant conservative, placing his own views over those of his fellow justices and the Court generally (although Toobin does not use the term arrogant). As Toobin puts it:

It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.

While I agree with Toobin that Thomas is the justice pursuing originalism most consistently on the Court, I don’t agree with the implicit criticisms that Toobin asserts.

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