Has Originalism Been Tried?

Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego.  It was another very enjoyable and productive event.  University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post: I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was…

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Once and Future Originalism

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

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Sunstein’s Critique of Originalism

In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism: But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about. For example, originalism could easily lead to the following conclusions: States can ban the purchase and sale of contraceptives. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C.…

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Why Originalism?

Editing First Amendment Pencil US Constitution

In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law.”

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Gorsuch Nomination: Potentially the Best News for Originalism since 1987

With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.”   The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency:  He makes appointments (except in the trade area) that  on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.

First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential  with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory.

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A Return to Constitutionalism

Neil Gorsuch, Supreme Court nominee.  Andrew Harrer/Bloomberg via Getty Images

Judge Neil Gorsuch of the Tenth Circuit Court of Appeals is by virtually every account a stellar jurist. His writings are now being mined, by supporters and opponents alike, for evidence of his commitment to judicial restraint and the separation of powers.

That evidence is not hard to find. In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.”

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Let’s Pass a Constitutional Amendment Prohibiting Lameduck Pardons

I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law.  One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971.  (The 27th Amendment was proposed in 1789 and ratified over two centuries, receiving its last state vote for ratification in 1992). One result of this failure to employ the constitutional amendment process is that the process is atrophying.  As a matter of political psychology, people do not think enough…

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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…

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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…

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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…

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