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30 posts from December 2010

12/31/2010

Originalism on the Web
Mike Rappaport

Ezra Klein on You Can’t Blame the Framers for the Filibuster.

Alas, John McGinnis and I have rebutted many of the arguments in this essay but Klein appears blissfully unaware of this.  See Our Supermajoritarian Constitution and The Constitutionality of Legislative Supermajority Rules: A Defense (Yale Law Journal 1995 but not on line).

12/30/2010

Originalism in the Blogs
Mike Rappaport

Patrick J. Charles responds to my History Office Law in Mike Rappaport on Originalism, Historians, and the Second Amendment.

I don't think that Patrick Charles understood my principal criticism of Pauline Meier.  I am certainly in agreement that context matters.  But the question is what is the object of inquiry.  And for original meaning people, the question is what the words would have meant at the time.  That James Madison could have formulated an express individual right to self defense is relevant, but no more relevant than that he could have formulated an express right limited to the militia.

Put differently, even if the context suggests that the primary purpose for putting the Second Amendment into the Constitution was to protect the militia, that does not mean that is the full extent of the right.  The question is not the primary purpose (but all of the purposes) and, most importantly, the full meaning.

12/29/2010

Originalism in the Blogs
Mike Rappaport

Patrick J. Charles responds to Muhammad Ali Hasan's Why the Founding Father would Support the DREAM Act in Revisionism, the Founding Fathers, and the Dream Act

12/28/2010

Originalism in the Blogs
Mike Rappaport

T.J. Chiang on Legislative Preferences, Levels of Generality, and Meaning.

12/27/2010

History Office Law
Mike Rappaport

Recently, I linked to this op ed by distinguished historian Pauline Meier.  The piece defended Justice Breyer's comments on the Heller case that criticized the Heller majority and argued that the original intent of the Framers did not favor a right to bear arms for self defense. 

The piece is a perfect example of why originalists are often frustrated by many historians who opine on originalist issues.  They claim to have superior knowledge of the history, and they are certainly well versed in it.  But they can't seem to wrap their minds around the idea that originalism is not simply about history.  In the version that the Supreme Court employed in Heller, and that most originalists today follow, it is the original meaning of the Second Amendment that is the question at issue, not the original intent of the Framers.  Originalism is about a certain type of law, not merely history. 

Meier may or may not be right about the original intent (and I find her arguments not terribly strong), but she does not even address the original meaning.  As a result, a well respected historian comes across as unsophisticated about the legal issue.  And, sadly, Meier is not alone.

I recognize that the training of historians does not incline them towards original meaning analysis. But that is no excuse.  Historians can complain all they want to about "law office history," but at least as big a problem in this area is "history office law." 

12/26/2010

The Language of Statutes: Laws and Their Interpretation
Mike Rappaport

Lawrence M. Solan (Brooklyn Law School) has posted The Language of Statutes: Laws and Their Interpretation (Brooklyn Law School, Legal Studies Paper No. 216)  on SSRN. Here is the abstract:

This is chapter 1 of The Language of Statutes: Laws and their Interpretation (University of Chicago Press (2010). The chapter situates debate about statutory interpretation as a battle between those who are concerned that judges, especially common law judges, have too much interpretive discretion, and those who would prefer that judges play a more significant role in the development of the law. At the root of the problem is the extent to which the human language faculty is able to produce rules of law that are at once “minute” and “flexible”, as Cardozo put it. This chapter illustrates communicative breakdowns in statutory language, and discusses their implications. It further outlines the argument of the book, in which legislative intent plays a significant role in interpretation, both empirically and normatively. At the same time, however, competing values - ranging from fair notice to dynamism to formalism - contribute substantially to interpretative decisions. Weighting these values and choosing among them is too subjective to create a theory that will produce consistent results in statutory cases. For the most part, however, judges and others limit themselves to relevant considerations. Fortunately, when proper base rates are taken into account, the set of statutory cases that are likely to produce results that more reflect the personal and political value of the decision maker than a legally-based result are few. Thus, we are left with a system in which a constant flow of uncertainty at the margins is a given, but which generally works well enough to sustain rule of law values.

12/25/2010

Originalism on the Web
Mike Rappaport

William J. Watkins, Jr. on Obamacare, the Constitution, and the original meaning of the Commerce Clause

12/24/2010

Originalism on the Web
Mike Rappaport

Pauline Maier on Justice Breyer’s Sharp Aim.

12/23/2010

The Abolitionist Origins of the Fourteenth Amendment
Mike Rappaport

Randy Barnett (Georgetown University Law Center) has posted Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment (The Journal of Legal Analysis, Forthcoming Georgetown Public Law Research Paper No. 10-06) on SSRN. Here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that disparaged abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Despite a brief revival of interest stimulated by the writings of Howard Jay Graham and Jacobus tenBroek, abolitionist constitutionalism remains obscure to law professors and even to historians of abolitionism. 

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North, many of whom were instrumental in the formation of the Liberty, Free Soil, and Republican parties. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One. 

The more one reads the forgotten writings of these “constitutional abolitionists,” the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and FourteenthAmendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.

12/22/2010

Originalism on the Web
Mike Rappaport

Jack Rakove reviews Ratification: The People Debate the Constitution, 1787-1788.

Caitlin Huey-Burns on Learning the Constitution is Essential for Americans.

Muhammad Ali Hasan on Why the Founding Father would Support the DREAM Act.