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30 posts from December 2010


Originalism in the Blogs
Mike Rappaport

Andrew Koppelman on Can’t Think of Another One.


Originalism and Summary Judgement
Mike Rappaport

Brian T. Fitzpatrick (Vanderbilt Law School) has posted Originalism and Summary Judgement (Ohio State Law Journal, Vol. 71, No. 5, p. 919, 2010)  on SSRN. Here is the abstract:

Over the last several years, the Supreme Court has revolutionized modern criminal procedure by invoking the Sixth Amendment right to a jury trial to strike down several sentencing innovations. This revolution has been led by members of the Supreme Court who follow an “originalist” method of constitutional interpretation. Recent work by the legal historian Suja Thomas has raised the question whether a similar “originalist” revolution may be on the horizon in civil cases governed by the Seventh Amendment’s right to a jury trial. In particular, Professor Thomas has argued that the summary judgment device is unconstitutional because it permits judges to resolve a set of cases - those where the sufficiency of a party’s evidence is in dispute - that could only be resolved by juries at the time the Seventh Amendment was ratified. In this Article, I argue that Professor Thomas’s historical findings are an insufficient basis from which an originalist might conclude that summary judgment is unconstitutional. In order to conclude that the Seventh Amendment requires juries to resolve cases where the sufficiency of a party’s evidence is in dispute, an originalist would need to know more about the jury trial in 1791 than the fact that juries had the exclusive power to resolve such disputes. Not everything that juries did in 1791 was understood to be unchangeable absent a constitutional amendment. In order to separate the things that juries did that were important to the Seventh Amendment from the things that they did that were not, one must assemble a frame of reference external to the jury practices themselves. This external frame of reference might be assembled from many places - a comparison of founding-era lexicons to the constitutional text, an examination of founding-era statements on the question, an assessment of the original purposes of the Seventh Amendment, etc. - but it has to be assembled from somewhere. Professor Thomas has not yet focused her energies here. As such, more work may need to be done before an originalist would conclude summary judgment is unconstitutional.


Originalism in the Blogs
Mike Rappaport

Josh Blackmore replies to Patrick Charles on Original Citizenship.

The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning
Mike Rappaport

Andrew E. Taslitz (Howard University - School of Law) has posted The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning (Texas Tech Law Review, Vol. 43, 2010) on SSRN. Here is the abstract:

Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, "for the original intent of the Framers or the original meaning of the Founding moment" or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals' and the People's happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a "People" by its shared commitments, finding the American People thus to be defined in part by the "pursuit of happiness" as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of "happiness" and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness's pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history's role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment's meaning.


Originalism in the Blogs
Mike Rappaport

Breyer: Founding Fathers Would Have Allowed Restrictions on Guns.


Originalism in the Blogs
Mike Rappaport

Alan Gibson reviews Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution by Prof Calvin Johnson.

The TaxProf Blog provides an edited version of the review and a response by Prof Calvin Johnson.


Originalism in the Blogs
Mike Rappaport

Patrick J. Charles responds to Blackman in When Did United States Citizenship Start?


Original Citizenship
Mike Rappaport

Josh Blackman (Penn State Dickinson School of Law) has posted Original Citizenship (University of Pennsylvania Law Review PENNumbra, Vol. 159, p. 95, 2010) on SSRN. Here is the abstract:

In his Essay Original Citizenship, Josh Blackman asks what the Constitution means when it refers to “citizen[s] of the United States.” Acknowledging the lack of guidance on the topic, Blackman looks to contemporary notions of citizenship, including the theories of birthright citizenship and “citizenship by election,” for help. In concluding that one could only become a citizen of the United States as of the Declaration of Independence, Blackman tracks early case law at critical points in the nation’s early history. He looks to treason cases, contested elections, and interpretations of Jay’s Treaty to determine that the only logical starting point for “original” citizenship must be the Declaration. Blackman’s piece is a much-needed contribution to a sparse area of scholarship and helps to lay the groundwork for future work on the implications of his findings.


Civic Education and Popular Constitutional Interpretation
Mike Rappaport

Michael Serota (University of California, Berkeley- School of Law) has posted Civic Education and Popular Constitutional Interpretation on SSRN. Here is the abstract:

Here is a hard truth that many know, but few outside of the legal profession truly appreciate: personal preferences do not dictate constitutional meaning. Of course, there are substantial disagreements among judges over how best to interpret the Constitution, but these disagreements are primarily about process. Instead of arguing about which outcomes are more or less politically desirable, judges debate the analytical methods and types of evidence that should be used to derive meaning from the Constitution's provisions. And although some believe that the debate over methodology is merely a proxy for the debate over judicial outcomes, the decisions of our federal judiciary, viewed as a whole, suggest otherwise.

However, notwithstanding the legitimate methodological disagreements that exist in the judiciary, many of our politicians and talk show hosts often eschew analytical nuance for the "I believe it, so therefore it must be true" approach, treating constitutional interpretation as purely a matter of personal opinion. Trading discussion of interpretive methodology for platitudes such as "judicial activism" or "undemocratic," prominent commentators frequently seek justification for their own preferences rather than providing any substantive constitutional commentary. Not only is it dishonest, but it further entrenches the ideological divide in America and impedes an important discussion about how our Constitution should be interpreted.


The Founders’ Bush v. Gore
Mike Rappaport

Edward B. Foley (Ohio State University College of Law) has posted The Founders’ Bush v. Gore: The 1792 Election Dispute and its Continuing Relevance (Ohio State Public Law Working Paper No. 137) on SSRN. Here is the abstract:

In 1792, the Founders of our Republic and its Constitution faced their own version of what our generation knows as Bush v. Gore. It occurred in the context of that year’s election for governor in New York. John Jay was challenging the incumbent, and Jay and his supporters believed that they were wrongly robbed of their rightful victory when the state’s canvassing committee – in divided vote that fell along party-line lines – disqualified one county’s ballots because of a technical defect in the delivery of these ballots from the county to the Secretary of State.

Although the 1792 dispute concerned the rules for ballot delivery, rather than hanging or dimpled chads, the same basic jurisprudential debate in Bush v. Gore existed in 1792. Just as Gore argued for avoiding the disenfranchisement of voters as a consequence of faulty electoral machinery, so too did Jay’s side claim that protecting voters from the loss of their fundamental (and constitutional) right to the franchise was justification for excusing a technical breach of the state’s ballot delivery law. Conversely, just as Bush’s legal team claimed that strict enforcement of Florida’s election rules was necessary to preserve the integrity of the electoral process, so too did Jay’s opponents make the identical argument.

Moreover, this debate about how best to operate democracy in the context of a dispute over the results of an important statewide election consumed the attention of the Founding Generation. Jay’s Federalist Papers co-authors, Hamilton and Madison weighed in with their views, as did Jefferson, Monroe, and Burr. Other important, but less well-known, Founders were also involved. For example, Edmund Randolph, the nation’s first Attorney General, forcefully expounded the integrity argument. James Kent, a Jay supporter who would later be known as “America’s Blackstone” for his Commentaries on American Law, condemned the canvassing committee for being structurally biased against Jay’s side in its membership.

This largely forgotten historical episode, with its similarities to the disputed presidential election of 2000, is more than just an interesting curiosity. Rather, the difficulties that the Founding Generation had with its own version of Bush v. Gore – especially its lack of an institution for resolving the dispute that was perceived to be structurally fair to both sides – helps to explain why our own generation had such difficulty with resolving the 2000 presidential election. We have inherited the constitutional system that the Founders bequeathed to us. But that system did not include an adequate mechanism for handling a disputed election for chief executive, whether governor or president. This Article explores the reasons for the Founders’ inability to equip us, or (as shown by the events of 1792) even themselves, with this necessary element of a well-functioning constitutional democracy. As a nation, we will continue to suffer from this inadequacy until we recognize that the Founders did not give us all that we need and thus we take it upon ourselves to add the missing institutional ingredient to the system they gave us.