Originalism Top Ten of 2012
Continuing a New Year’s tradition, here are my picks for the top originalism-related headlines of 2012:
1. Antonin Scalia and Bryan Garner publish Reading Law: The Interpretation of Legal Texts (West, June 19, 2012) – in part a big-picture argument for textualist originalism (or, perhaps more accurately, originalist textualism); in part a treatise on canons of interpretation. Judge Posner is not happy with it. Ed Whelan is not happy with Judge Posner. Judge Posner is not happy with that either.
2. In National Federation of Independent Business v. Sebelius, the U.S. Supreme Court decides … something. Some originalists are sort of happy with it. Some are not. At minimum, Congress’ enumerated powers get more attention than they once did.
3. Originalist pioneer Robert Bork dies. An interesting question is how much modern originalism (and modern legal conservatism) has moved beyond Bork’s approach to seek a more active role for the judiciary.
4. Judge J. Harvie Wilkinson publishes Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Oxford, March 12, 2012), a concise and elegant appeal to judicial restraint well-timed to appear in the run-up to the NFIB v. Sebelius decision. Among other things, Wilkinson’s work makes clear the sometimes-latent conflict between originalism and judicial restraint.
5. Georgetown Law School launches its Center for the Constitution with media-star originalist Randy Barnett as director and Lawrence Solum as “Senior Scholar.” According to its website, “the Center places special emphasis on the debate over the proper method of constitutional interpretation, aiming to provide a leading forum for inclusive exploration and discussion of how best to remain faithful to the original meaning of the Constitution's text.” And they offer a fellowship for young scholars.
6. Nathan Chapman and Michael McConnell, of Stanford Law School’s constitutional law center, publish what is likely the most important (and longest) originalist "essay" of 2012, Due Process as Separation of Powers, 130 pages in the Yale Law Journal. Mark Tushnet is not happy with it.
7. The third annual originalism works-in-progress conference at the University of San Diego Law School’s Center on Constitutional Originalism features papers from Ilya Somin (George Mason), Jamal Greene (Columbia), Kurt Lash (Illinois), Robert Pushaw (Pepperdine), John Mikhail (Georgetown), Jennifer Mason McAward (Notre Dame), Stephen Sachs (Duke), and Garrett Epps (Baltimore), with commentary from John McGinnis (Northwestern), Michael Paulsen (St. Thomas), Jack Balkin (Yale), Mark Tushnet (Harvard), Andrew Kent (Fordham) and Chris Green (Mississippi). Stanley Fish comments here.
8. Building on the success of its works-in-progress conference (see #7) and other activities, USD’s Originalism Center receives a generous grant from the Hugh and Hazel Darling Foundation that allows the conference to be formalized as the Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference, and which supports additional originalism-oriented activities. Mike Rappaport is recognized as a Darling Professor. (That is, he is named the first Hugh and Hazel Darling Foundation Professor of Law).
9. Akhil Amar publishes America’s Unwritten Constitution: The Precedents and Principles We Live By (Basic Books, Sept. 11, 2012), signaling a move away from constitutional text by one of the nation’s leading textualists. Judge Posner doesn't like this one either.
10. The Liberty Fund launches a new website and blog (Liberty Law Blog), the latter featuring George Mason Law School’s Michael Greve and this blog’s Mike Rappaport. Though not specifically originalist, it quickly becomes an important resource for originalism-oriented news and commentary.
(Sadly, I have used up my ten slots without space for Michael Greve's The Upside-Down Constitution, Adam Freedman trying to take constitutional law (and originalism) away from the law professors in The Naked Constitution: What the Founders Said and Why It Still Matters, and Justice Samuel Alito's "tiny constable" in United States v. Jones).
Happy New Year to all. May 2013 be as engaging as 2012.