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51 posts from August 2011

08/25/2011

Ozan Varol: The Origins and Limits of Originalism
Michael Ramsey

Ozan O. Varol (Chicago-Kent College of Law) has posted The Origins and Limits of Originalism: A Comparative Study (Vanderbilt Journal of Transnational Law, Forthcoming) on SSRN. Here is the abstract:

In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader debates in the United States about the origins, functioning, and limits of originalism.

This comparative study calls into question the existing theories in the American legal literature about why originalism thrives in certain nations. This Article suggests a new hypothesis that views support for originalism as a cultural, not legal, phenomenon: Originalism blossoms in a nation when a political leader associated with the creation or revision of the Constitution has developed a cult of personality. The cult-of-personality hypothesis explains why originalism has thrived in nations such as Turkey and the United States, where the nation’s founders have developed a strong cult of personality, but has failed to find a strong and sustained following in nations such as Australia, where the founders are held in no special reverence.

The Turkish case study is also instructive on the limits of originalism. Critics of originalism in the United States argue that originalism allows the dead hand of the past to rule an evolving society. In response to the critics, originalists note that the legislature has the option of amending the Constitution if its original meaning no longer comports with societal norms. But what if constitutional amendment were not an available option? The Turkish case study suggests that when the legislature lacks a plausible method—however difficult it may be—for amending the Constitution in times evolving societal norms, the continued use of originalism by the judiciary may motivate the legislature to place political constraints on the courts. In Turkey, the Constitutional Court’s embrace of originalism but rejection of legislative attempts to amend the Constitution led to the adoption of a court-packing plan in September 2010.

08/24/2011

Lee Strang: Originalism and the Aristotelian Tradition
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism on SSRN. Here is the abstract:

A concept fundamental to philosophy – virtue – is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.

Originalism must articulate virtue’s role in constitutional interpretation for a number of reasons. First, incorporating the concept of virtue into originalism will give it greater explanatory power. For example, adding the concept of virtue to the mix helps originalism embrace ideals such as judicial craftsmanship.

Second, incorporating the concept of virtue into originalism makes originalism more normatively attractive. Originalism has transformed over the past thirty years. Most importantly, originalism has come to acknowledge judicial discretion in constitutional adjudication. An originalism that incorporates the lessons of virtue ethics is able to preserve originalism as a viable theory of constitutional interpretation while, at the same time, continuing to acknowledge judicial discretion. An originalism that incorporates virtue ethics’ insights will give the Constitution’s original meaning its due. Simultaneously, it also gives other factors – such as the practical workability of legal doctrine – their due, all in their proper proportion.

08/23/2011

Originalism in the Blogs
Michael Ramsey

More from John Mikhail: The Necessary and Proper Clauses, Part II: Foregoing Powers v. All Other Powers.

08/22/2011

Originalism on the Web
Michael Ramsey

In The New Yorker, Jeffrey Toobin profiles Clarence and Virginia Thomas in a long article: Partners: Will Clarence and Virginia Thomas Succeed in Killing Obama's Health Care Plan?

Though critical of Thomas in some respects, the article is more respectful of Thomas' dedication to originalism and his role as an intellectual force on the Court than was Toobin's 2007 book The Nine

Steve Smith: Freedom of Religion or Freedom of the Church?
Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted Freedom of Religion or Freedom of the Church? on SSRN. Here is the abstract:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state - developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church- both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

08/21/2011

Originalism on the Web
Michael Ramsey

Carson Holloway: The Balanced Budget Amendment: What Would Hamilton Say?

08/20/2011

Originalism in the Blogs: The Affordable Care Act
Michael Ramsey

At SCOTUS Blog, an exchange between Richard Epstein (here) and Laurence Tribe (here) on the Affordable Care Act (ACA) and the original meaning of the commerce clause.  (This exchange is part of a wide-ranging symposium on the ACA involving many contributors, much of which is doctrinal rather than originalist.  The entire symposium is available here.)

Epstein says in part:

It beats me how a provision [the commerce clause] that is drafted to allow Congress the important power to deal with transportation, communication, and the shipment of goods across state lines, can be expanded to let it regulate any activity that affects commerce, even if done in a purely local setting. 

That broad reading of the Commerce Clause ... is flatly contradictory to the great Marshall decision in Gibbons v. Ogden (1824).  Gibbons said that even though the Commerce Clause lets Congress regulate a single journey into the interior, its power to regulate stops when the goods are unloaded on the dock, where they are commingled with the mass of local goods and are subject to the general inspection laws of the state to which they are shipped.  ... 

... [I]t is said that we need a national government to solve national problems.  But we do not need a national government to distort all voluntary markets beyond recognition, which is what happens when federal monopoly power drives out competition between states, which is in fact the engine of material progress. For present-day purposes, the ideal structure is just what it was in 1787:  a federal government that can keep the lines of communication open between states, after which firms in one state can compete with others.

Tribe responds on this point:

I believe that the constitutionality of challenged exercises of power should not be determined wholly by the logic of the latest judicial precedents, with scarcely a nod to the constitutional text or to the basic principles that it was originally meant to embody. To the contrary, I agree [with Professor Epstein] that the text and its original meaning in that principled sense (although not in the sense of what the Framers or Ratifiers or others specifically expected the clauses would cover) should guide – even if they cannot algorithmically determine – the interpretive process from beginning to end.

But thereafter Professor Epstein and I part ways. For I believe that he is wrong to suggest that the best reading of the Commerce Clause and of the basic principles it originally embodied is a reading that would doom the individual mandate. To the contrary, as Yale’s Jack Balkin has persuasively argued, the Commerce Clause was originally meant to confer on Congress a broad power to govern “interactions” and “transactions” involving, as Chief Justice John Marshall famously said in Gibbons v. Ogden,  “more states than one” – including, by the way, the kind of interstate travel that even Professor Epstein might concede the Commerce Clause was originally meant to cover whether or not it involved “economic activity” of the sort the modern Supreme Court cases insist on finding as a predicate of applying the aggregation principle of Wickard v. Filburn.  And more generally, the enumerated powers as a whole were meant to permit the federal government to address problems that states were individually incompetent to solve, a criterion plainly met by the healthcare problem this nation faced before the ACA’s passage. Thus, if anything, modern Commerce Clause doctrine is more restrictive of congressional power than the framing generation would have understood, not less.

Two quick observations.  (1) It’s significant that mainstream ACA defenders like Professor Tribe don’t feel that they can simply ignore originalist arguments and say originalism is an impossible, empty or outdated approach; they feel compelled, to some extent, to meet originalists on their own ground.  (2) Tribe’s essay highlights the importance of originalist arguments associated with Jack Balkin and others (see here and here) claiming a broad meaning of the commerce clause; I think we'll be hearing a lot more about those arguments, in the ACA context and elsewhere, including increasingly in political commentary.

08/19/2011

Originalism on the Web
Michael Ramsey

Richard Primus responds to Jamal Greene's On the Origins of Originalism (88 Texas L. Rev. 1 (2009)) in The Functions of Ethical Originalism (in the Texas Law Review See Also, the review's excellent on-line forum for responses to their print articles).

08/18/2011

James Allan: The Vantage of Law
Michael Ramsey

New book publication: James Allan, The Vantage of Law: Its Role in Thinking about Law, Judging and Bills of Rights (Ashgate 2011). 

Professor Allan (University of Queensland)  is one of Australia's premier originalist-oriented scholars.  American readers shouldn't be put off by the sort of odd (from an American perspective) title: Allan's work is insightful, provocative, and engaging.

Here is the publisher's description:

The premise of this book is that a shift of vantage will help elucidate various important issues of law related to judging, to bills of rights and to more abstract questions of legal philosophy. This work begins by focussing on the jurisprudential issue of whether it is desirable to keep separate the demands of law and of morality and uses the device of changing vantages to elucidate the many issues that fall under that aegis. This is followed by a consideration of how judges ought to do their job when interpreting and whether the rule of law ideal differs from rule by judges. The last part of the book focuses explicitly on bills of rights. Building on the earlier parts, the author uses his device of shifting vantages to provide insights into how these instruments affect democratic decision-making and from which perspectives they will look attractive and unattractive. Written in a clear, accessible and engaging style, this book demonstrates that vantage point is a key criterion affecting how one understands and evaluates, firstly, some of the theoretical debates in jurisprudence and then, secondly, what judges are doing and whether a bill of rights is desirable or not.

And from a review by Jeff Goldsworthy (Monash University):

Jim Allan's new book situates his opposition to judicial activism and constitutionally entrenched rights in a broader theoretical context emphasizing the importance of one's perspective towards the law. He is a bold, vigorous, original and colourful writer, and readers will be entertained as well as informed.

08/17/2011

Originalism in the Blogs
Michael Ramsey

Steven Schwinn:  Collective Action Federalism and Resolution VI (with the ACA in the background)