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03/26/2012

Joel Alicea on Originalism in Congress
Michael Ramsey

Joel Alicea (Harvard Law School) has posted Stare Decisis in an Originalist Congress (Harvard Journal of Law and Public Policy, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract:

With presidential candidates and members of Congress calling upon the political branches to reassert their role as constitutional interpreters, there is an urgent need to explore what it would mean for Congress to take constitutional interpretation seriously. In particular, if Congress were originalist, how would it go about its interpretive task? I have previously argued that originalist theory requires Congress to be originalist in its interpretation of the Constitution. This paper examines whether an originalist Congress would owe deference to the constitutional judgments of previous congresses. In other words, should a form of stare decisis prevail in an originalist Congress?

This article continues Mr. Alicea's project on originalism in Congress, begun in this article: Originalism in the Legislature (Loyola Law Review, vol. 56, 2010).  Here is the abstract: 

While the extent to which Congress ought to be involved in interpreting the Constitution has been the subject of scholarly debate in recent years, the question of how Congress should interpret the document has been overlooked. This paper examines the justifications underlying several schools of originalist thought to tease out what these schools have to say about congressional constitutional interpretation. When the major originalist theories are scrutinized, the logical conclusion is that Congress ought to be originalist when engaging in constitutional interpretation. The paper thus breaks new ground in pointing out this radical implication of originalist thought, but its novel exploration of congressional interpretive methods makes it highly relevant to nonoriginalist scholars as well.

And he has a related article in National Affairs: An Originalist Congress? (Issue 6, Winter 2011).  From the article:

What Congress needs as a companion to its constitutionality pledge [that is, the congressional Republicans' recent pledge to cite the specific constitutional authority for each bill] is a theoretically coherent and legitimate method of constitutional analysis. Legislators of a more conservative bent — including many members of the new Republican House majority — might be most inclined to turn to "originalism": the notion that the Constitution's interpreters should adhere to the meaning of the text as understood by the men who enacted it. Depending on one's particular brand of originalism, the understanding that matters belongs to either the framers of the document or the people who ratified it; the key point, however, is that an originalist refuses to substitute his own views on what the Constitution should mean for how the document was originally understood.

But adopting an originalist approach to congressional constitutional interpretation is no simple matter, because conventional wisdom (even among many originalists) places the authority to determine the Constitution's meaning solidly in the hands of the courts, not the legislature. Members of Congress who would claim to be originalists will first need to decide what exactly that means in a legislative context — and whether Congress ought to assert itself as a constitutional interpreter in its own right.

Alicea absolutely owns this topic -- no one is going to be able to write in this area without addressing his analyses.  That's an amazing thing to say about someone who's a second-year law student.