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…
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.
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.
Suppose that it’s right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could be unconstitutional today? I can’t imagine how, as an originalist matter, that could be so. Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error. But here the language is at best ambiguous on the right to concealed carry (even if one thinks “bear[ing] Arms” means carrying them in public). If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.
There are many reasons for classical liberals to oppose Donald Trump in the general election, but Supreme Court appointments are not now one of them. We can hardly be confident that his appointments will make America great, but we can be pretty confident that Hillary Clinton’s will end the current project of making the Supreme Court a court of law rather than a dynamo of Progressive politics.
After Donald Trump’s announcement of eleven judges whom he would consider appointing to the Scalia vacancy, many libertarian and conservatives commentators still doubted that Supreme Court appointments were a good reason to support Trump in the general election. They conceded that that those on his list were generally excellent candidates, but suggested that Trump could not be trusted to appoint people like them.
And they certainly have a point: on many issues Trump points in no direction more consistently than a weathervane. Moreover, he has supported a variety of legal causes, like property condemnation on behalf of private development, that would not likely fare well with the kind of justices he has promised to appoint.
Nevertheless, I believe there is a substantial probability, even a likelihood that Trump would follow through on his judicial promises.
One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.
Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights. Others have interpreted it to have a much less significant role.
In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.
Recently, I attended an interesting conference on Corpus Linguistics and the Law. Corpus Linguistics “is the study of language based on large collections of ‘real life’ language use stored in corpora (or corpuses) – computerized databases created for linguistic research.” Much of the conference focused on how this method could be used to engage in originalist research. At present, originalism often uses dictionaries to determine the meaning of words at the time of the Constitution’s enactment. But there are significant limits to dictionaries. The promise of corpus linguistics is to use very powerful software to examine actual usage of words from…
Recently, Justice Stevens gave a speech about Justice Scalia. At the end, Stevens relies upon an argument from historian Joseph Ellis that both Stevens and Ellis believe suggests that Thomas Jefferson was not an originalist. But as Ed Whelan points out, this is a misinterpretation. Jefferson writes: Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and…
In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.” This claim is contrary to the received wisdom about Scalia. But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to the progressive transformation of the United States.
But Sunstein’s arguments are weak. First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.
Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home. First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding. Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism.
Over at the Liberty Law Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists. Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution? This is a difficult question. Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem. Relying on this perspective, Smith argues for what he calls a strategic originalism. I respond to Smith’s argument here. I have also thought about strategic considerations. I discuss one strategy for promoting originalism in my response to Smith: Perhaps the biggest obstacle…