Originalism in the Law Reviews
As a new feature this year, this blog will begin tracking newly published issues of major law reviews for scholarship of potential originalism interest. Until now, we have relied principally on SSRN postings to identify new scholarship, and we'll continue to do so, but SSRN has its limitations: not all scholarship is posted there in advance of law review publication, and even for posted articles it does not always reflect the ultimate place of publication or the final as-published version. In a welcome trend, major law reviews are increasingly making their new issues available on-line contemporaneously or roughly contemporaneously with their print versions. As these become available, we'll highlight articles that may be of interest to originalist (or anti-originalist) scholars. To begin --
Darrell A.H. Miller (University of Cincinnati College of Law), Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 Yale L.J. 852 (2013). Abstract:
In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.
This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms.
Matthew C. Stephenson (Harvard Law School), Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940 (2013). Abstract:
It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate’s failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate’s tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations