More on Radical and Moderate Originalism

My last post distinguished between radical and moderate versions of originalism. This post discusses a few more aspects of the distinction and assesses my own views as radical or moderate. First, one sees the original and moderate versions assumed in debates about originalism. Some people claim that originalism would require radical changes in existing doctrine, and use that to criticize originalism. Other people defend originalism by denying it would be radical, in effect saying it would only be moderate. By contrast, some radical originalists view their radical interpretation as morally beneficial because it conforms with their political philosophies. Others then attempt to criticize…

Read More

Radical and Moderate Originalism

Here I want to draw a distinction between two types of originalism: between a radical originalism and a more moderate originalism. The radical originalist believes that the Constitution’s original meaning establishes a regime that is extremely different from the current legal regime.  The easiest way to get a radical view is through a strong federalism.  If one believes that the Commerce Clause is narrow, that there is no Spending Power, that the Necessary and Proper Clause is very limited, then one can generate a regime that holds Social Security to be unconstitutional, that places significant limits on paper money, and that…

Read More

The Foreign Emoluments Clause II: Inferences from the Interpretive Rules

In my previous post concerning the Foreign Emoluments Clause, I provided evidence from Rob Natelson that the term emolument had narrower and broader meanings.  The narrower meanings would cover money and benefits from an office, whereas the broader meanings might cover any benefit or advantage whatsoever.   In terms of whether the Clause would cover arms-length transactions with Donald Trump, only the broader meaning would cover those transactions. To resolve the ambiguity, an originalist – especially one who follows the original methods approach – would employ the original legal interpretive rules to see if they could answer the question. The Clause provides: No Title…

Read More

Invasion of the Constitutional Soul-Swappers

Magic of reading

Extending our prior consideration of organic metaphors in constitutional law into another realm, let us now consider the relationship of body and soul in the Constitution of the United States of America.

Read More

Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?

In my last post, I argued that the original meaning forbids states from passing laws that prohibit faithless voting by the electoral college.  But if the original meaning imposes this prohibition, then why does such faithless voting seem problematic even to an originalist like me? One problem is that the practice in this country, for a very long time, has involved electoral college voters being understood as voting for the pledged candidate.  But the mere fact of practice cannot be sufficient.  There are plenty of unconstitutional practices that I would happily see eliminated. A second problem is that this practice has been…

Read More

Prospects for Constitutionalism

The Assembly Room in Independence Hall

What are the prospects for constitutionalism and the rule of law under President Donald Trump? 

Read More

The Unconstitutionality of Prohibiting Faithless Electors

Recently, there has been a bit of an originalist debate about the issue of the “faithless elector.”  David Post argues that “the original intent of the Constitution, supported by its text and overall structure, not only permits but also ‘requires’ presidential electors to exercise ‘discretion and independent judgment’ in casting their ballots.  Mike Ramsey responds that the original meaning of the constitutional text – both the original Constitution and the 12th Amendment – allows the states to select electors “based on the electors' advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.” I…

Read More

Do You Believe in the Judicial Supremacy of Dead Justices?

Wooden Judges Gavel And Old Law Books On Wooden Background

Randy Barnett recently had a great line on Twitter accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?

Read More

Why Are Non-Originalist Professors Ignoring Non-Originalist Arguments for Binding Electors?

Larry Lessig, Geoff Stone, and other law professors have called for the electors on the Trump slate to abandon him and so throw the election into the House of Representatives. They argue that the electors have this constitutional right even in the face of state statutes that forbid them from doing so, because the Framers gave electors the power of discretionary selection. They are empowered to use their own judgement and are not tied to the views of those who selected them.

I agree that electors have the constitutional right to vote for whomever they choose for the reasons that my friend Robert Delahunty brilliantly provides in a recent essay. I do not agree, however, that it would be prudent to do so. Indeed, if the objective is to prevent a Trump presidency, the exercise is a pointless one. Republicans control 31 state delegations in the House and almost every Republican member from those states comes from a district Trump won. It is inconceivable that there would be a House majority for anyone else, particularly so late in the transition process. Indeed, a cynic might conclude that the objective of throwing it to the House is to draw out the acrimony over the election, make Trump less legitimate, and yoke House Republicans more closely to his presidency in case of its failure.

And, unlike Delahunty, those who are arguing for the discretion of electors are generally not originalists. And this raises questions about the consistency and neutrality of their jurisprudence. Living constitutional, historical practice, and pragmatic arguments all cut against permitting electors the discretion that the original meaning confers.

Read More

Clear Originalist Cases

One of the difficult issues for originalism is what it means concretely for the United States Constitution.  What actually is in the original meaning of the various provisions of the document? I must admit that I find this to be difficult.  If one has a sophisticated and open minded view of interpretation – which I like to believe I do – many clauses of the document are simply not clear, unless one has done the extensive historical research.  Even then, the resolution of issues will often be a matter of judgment.  Thus, it is sometimes difficult to make firm statements about…

Read More