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11/19/2012

Josh Blackman: Originalism's Gravitational Pull Towards Original Meaning
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: Originalism's Gravitational Pull Towards Original Meaning.  From the conclusion:

... [O]riginalism was only needed to have an indirect effect [in NFIB v. Sebelius]. It was clear that the [Affordable Care Act] was not supported under the original understanding of the commerce clause. Randy [Barnett] and others conceded this at the outset, but argued not in terms of originalism, but rather why this case goes beyond the New Deal precedents, and how the government failed to meet its burden of justification. But, the years of originalist scholarship showing how the commerce clause was originally understood was needed to highlight the need to substantiate this further departure from 1787. ...

In short, the potency of originalism cannot be measured simply by assessing whether originalist arguments are advanced, and ultimately accepted in any given case. Originalism’s potency can be seen as a factor of what view of federalism and liberty the Court is laboring under. Originalism ... lays the intellectual groundwork for understanding how a particular law deviates from what has come before. Sensing how that theory pulls and tugs on our constitutional lodestar provides enough of an indication that an act of Congress has gone too far, and there needs to be a justification.

So, in this sense, originalism’s gravitational pull tugs the Constitution towards original meaning, even if originalism is not advanced in a case that circles the orbit of New Federalism. Originalism is the hidden force that causes other things to shift, even if we don’t directly see why. This is why “this far and no further” works, even when originalist arguments need not be made. Thus, scholars need to continue developing originalism so that the force, the pull, the tug remains to keep our Constitution shining bright and strong.