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33 posts from March 2017


Ilan Wurman: Constitutional Administration
Michael Ramsey

In the current issue of the Stanford Law Review, Ilan Wurman (Winston & Strawn LLP) has the article Constitutional Administration (69 Stan. L. Rev. 359 (2017)).  Here is the abstract:

Administrative law rests on two fictions. The first, the nondelegation doctrine, imagines that Congress does not delegate legislative power to agencies. The second, which flows from the first, is that the administrative state thus exercises only executive power, even if that power sometimes looks legislative or judicial. These fictions are required by a formalist reading of the Constitution, whose Vesting Clauses permit only Congress to make law and the President only to execute the law. This formalist reading requires us to accept as a matter of practice unconstitutional delegation and the resulting violation of the separation of powers, while pretending as a matter of doctrine that no violation occurs.

This Article argues that we ought to accept the delegation of legislative power as a matter of doctrine because doing so can help remedy the undermining of the separation of powers. Accepting delegation as a matter of doctrine allows us to delineate the legislative, executive, and judicial components of administration and to empower each constitutional branch of government over the component corresponding to its own constitutional function. With this insight, for example, a legislative veto of the administration’s legislative acts is constitutional.

This Article seeks to make one functionalist move (accepting delegation) in order to deploy formalist tools to restore some semblance of the original constitutional scheme of separate powers. It seeks to take both formalism, which has served merely to mask the administrative state’s unconstitutional foundations, and functionalism, which has failed to offer any limiting principles to modern administrative practices, more seriously than modern scholars and doctrine do. A functionalist approach to delegation allows us to deploy formalism—but an honest formalism—to the separation of powers.

(Also, I hear he has a forthcoming book on originalism...).


David Weisberg on Originalism and Peña-Rodriguez v. Colorado (with my Comments)
Michael Ramsey

Regarding this post, David Weisberg writes: 

In DC v. Heller, Justice Scalia’s opinion for the majority correctly rejects the absurd argument that, if one takes an originalist approach to the Second Amendment, then one is compelled to conclude that the operative clause protects only the right to bear flintlock weapons.  This is absurd because, whatever interpretive theory one relies on, it is obvious that the drafters knew the difference between the words “arms” and “flintlock weapons”.  If they wanted the operative clause to be limited to flintlock weapons, they were perfectly capable of using those words in the operative clause.

With regard to the post (03/07/2017) discussing Justice Thomas’ dissent in Pena-Rodriguez v. Colorado, I would think precisely the same kind of argument would apply to his assertion: “The Sixth Amendment’s protection of the right, ‘[i]n all criminal prosecutions,’ to a ‘trial, by an impartial jury,’ is limited to the protections that existed at common law when the Amendment was ratified.”  Surely, the people who drafted the Sixth Amendment would have recognized the difference between an amendment that guaranteed the right to a “trial, by an impartial jury”, and one that guaranteed the right to a “trial, by an impartial jury, only to the extent such right is protected by the common law as of the date of the ratification of this Amendment….” 

If the drafters and ratifiers of the Second Amendment wanted to refer only to flintlock weapons, why didn’t they draft the amendment in those terms?  If the drafters and ratifiers of the Sixth Amendment wanted to limit the right to an impartial jury only to the extent such right is protected by the common law as of the date of the ratification of the amendment, why didn’t they draft the amendment in those terms?

Or, to put the exact same question another way, when the Eighth Amendment was drafted, did the phrase "cruel and unusual punishments" really mean "punishments that are cruel, and that are also unusual as of the date of the ratification of this amendment"?  If they meant the latter, why did they draft the former?  Surely, they could appreciate the difference just as well as we can. 

I think this is an important comment in getting at a key to originalist methodology.  As to the Second Amendment point, I agree, although for somewhat different reasons.  I would say:  it is normal, and indeed inevitable, in ordinary lawmaking, to refer to categories of physical things as they now exist or will exist in the future.  Otherwise, the law rapidly becomes a nullity.  Thus, I cannot drive my Tesla (assuming I could afford a Tesla) 100 mph on the highway and defend against an ensuing traffic ticket on the ground that Teslas did not exist when the speed limit law was written.  Justice Scalia said in Heller that such an argument with respect to "arms" borders on the frivolous, but I think is is actually literally frivolous in that, if I tried to use it in traffic court regarding my hypothetical ticket I would deserve (and maybe get) sanctions.  No sensible legislator would write a statute that way.  No one thinks statutes are written that way; the idea that we should have such a view of the Constitution is, as the comment says, absurd.

But the issue in Peña-Rodriguez is not analogous.  The question is not what an impartial jury means; it is what "the right" to an impartial jury means (specifically, whether it includes the right to overturn a verdict by proof of bias).  That question is not affected by the problem of new physical things not in existence at the time of enactment.  People of the enactment era understood the risk of jury bias in the same sense we do, and had a (limited) idea of what rights one had against it.  There is nothing "new," in the sense that a Tesla is new; the question is simply whether the scope of "the right" should be the scope understood at the time of enactment or some other scope that we make up.

Now it's possible that the common meaning of such a phrase at the time of enactment was that it delegated to future generations the decision as to the scope of the right.  But that is unlikely in the abstract, because that creates no firm right; it only creates whatever right judges of the future are willing to recognize, which could be much less (or more) than the enactors wished.  It is even more unlikely in the specific case of the Bill of Rights, which (as Justice Thomas said) was understood at the time as codifying pre-existing rights.  In this circumstance, the enactors are trying to enact a value judgment (how much protection to give to jury rights) and they typically would not want future generations second-guessing them.  Unlike in the case of speeding cars (where we assume the goal is to cover all cars, whether existing at the time of enactment or not), the assumption -- at least absent contrary evidence -- is that the goal is to enact the specific rights the enactors have in mind.

The question on the Eighth Amendment is difficult because the Amendment could be described either way.  Justice Scalia thought it referred to a value judgment -- that is, that it precluded the kind of punishments that were unusual at the time because they were barbarous, such that if more barbarous punishments came into common acceptance later, they would still be unconstitutional.  But I am not so sure.  "Unusual" might refer to facts as they exist from time to time -- that is, whatever is not common practice at the time a case is brought.  It's plausible that the enactors' concerns, and the way their enactment was understood at the time, centered on departures from usual practices in punishment, not on any particular kind of punishment.  If that's true, then it's analogous to the Tesla -- a change in facts changes the outcome (although it does not change the meaning). 

UPDATE:  David Weisberg adds this response:

Prof. Ramsey asserts: "In this circumstance, the enactors are trying to enact a value judgment (how much protection to give to jury rights) and they typically would not want future generations second-guessing them."

I assume he (and Justice Thomas) would say the same thing about every right enumerated in the first eight amendments; that is, all those rights would be limited in scope or extent to the scope they had in 1791.  I submit that precisely the same line of reasoning led Justice Scalia to conclude that a modern-day reinstatement of flogging as punishment for crime would be constitutional: he was assuming that "unusual" in the Eighth Amendment meant "unusual in 1791".  Nowhere in the Bill of Rights is there any explicit reference to such a temporal limitation on any right, whether in the Sixth Amendment, the Eighth Amendment, or any other amendment.    

The drafters could have highlighted that very important temporal limitation, and avoided even the possibility of "second-guessing", if they had added only a few words to the Ninth Amendment, so: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, and those enumerated rights shall be deemed to be as extensive, but only as extensive, as they were deemed to be when ratified as part of the Constitution."  That is the gist of what would have done the job. 

The enactors, we are told, did not want future generations second-guessing them.  They were, I take it, concerned that that might happen.  A few words added to the Ninth Amendment would have ensured that there could be no such second-guessing, but those words are nowhere to be found in the Constitution.  Did the drafters simply screw up, or did they write precisely what they intended to write?  Were the enactors careful, thoughtful statesmen and lawyers, or were they slobs?

Consistent with my usual policy, I give him the last word.


The Language of the Law and Pena-Rodriguez v. Colorado
Mike Rappaport

Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law.  The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law.  But what turns on this question?  The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices.

A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards the defendant and his alibi witness during the deliberations.  This evidence of bias, however, was excluded based on a Colorado evidence rules which “generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict.”  The Supreme Court majority opinion, written by Justice Kennedy, held that this no impeachment rule was unconstitutional as violating the Sixth Amendment right to “an impartial jury.”

While the majority opinion largely neglects originalist arguments, Justice Thomas in dissent argued that the no impeachment rule did not conflict with the Sixth Amendment.  He based his argument on his claim that the Sixth Amendment was protecting the common law right that existed at the time of the Constitution.  Thomas wrote:

The Sixth Amendment’s protection of the right, “[i]n all criminal prosecutions,” to a “trial, by an impartial jury,” is limited to the protections that existed at common law when the Amendment was ratified. See . . . 3 J. Story, Commentaries on the Constitution of the United States §1773, pp. 652–653 (1833) (Story) (explaining that “the trial by jury in criminal cases” protected by the Constitution is the same “great privilege” that was “a part of that admirable common law” of England). . . . It is therefore “entirely proper to look to the common law” to ascertain whether the Sixth Amendment requires the result the Court today reaches.

The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour”—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the Sixth Amendment was ratified did not allow jurors to supply evidence of that misconduct. In 1770, Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.). ...

Justice Thomas is arguing that the right had a specific historical legal meaning and that determines its content.

Significantly, this argument only applies if one believes the Constitution is written in the language of the law.  The reason is that “the right to an impartial jury” is referring to the historical legal right that existed at common law.  By contrast, if the Constitution is written in ordinary language, then this legal meaning could not be employed because legal meanings are not part of ordinary language.  Since it seems pretty likely that this right had its common law meaning, especially as supported by the purpose of the Bill of Rights to preserve the historical rights of the English, this is one of many strong arguments for concluding that the Constitution is written in the language of the law.

If the right only has its ordinary meaning, then how should it be given content?  What does “the right to an impartial jury” mean in this context?  It is not clear.  One might believe that it should include the right to admit juror evidence to set aside a verdict based on racial bias, but what about verdicts based on other types of bias?  The Supreme Court indicated the answer to other types of bias would not justify such setting aside.  Ultimately, the matter is not clear and so the Court must decide based on some extraconstitutional matter.  The majority opinion reads like it was decided based on the Justices’ values.

Randy Barnett on David Rudenstine on Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Another oblivious critique of Neil Gorsuch and Originalism (commenting on David Rudenstine [Cardozo]: Gorsuch's Adherence to Originalism Should Keep Him From SCOTUS).

It's a long, detailed and pretty harsh critique --  here are a few highlights: 

[Professor Rudenstine argues:]

Some [originalists] concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution’s meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism’s promise.

While it is true that some originalists have favored framers intent or ratifiers understanding, most today seek the original public meaning of the text at the time it was enacted. Regardless, for this criticism to be telling, Professor Rudenstine needs to identify circumstances where these different stances would lead to different results or outcomes. After all, the meaning of the words in the text to its framers, to its ratifiers, or to the general public, were very likely to be identical, since the meaning of the English language they employed was the same for all. Indeed, even originalists who ultimately seek the original public meaning of the text consider the meaning attributed to the text by its framers and ratifiers as probative evidence of original public meaning.

To take two examples where I am familiar with the available evidence, the word “commerce” in the Commerce Clause and “arms” in the Second Amendment meant the same thing to all three groups. So the practical constraining effect of originalism is preserved unless these differing audiences can be shown to have had differing understandings of the text, which is quite unlikely. At any rate, Professor Rudenstine offers no such examples of differential meanings.

Agreed, and in any event, to repeat a point I've made, well, repeatedly:  originalism does not depend on showing that originalism produces a clear outcome in every case.  All originalism claims is that when originalism produces a clear outcome, that outcome should be followed.  Thus it is not an argument against originalism that originalism sometimes (or even frequently) does not produce a clear outcome.  (It would be an argument against originalism that originalism never produces a clear outcome, but I don't believe that argument is possible).

From later in the critique:

[Professor Rudenstine argues:]

Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice “law office history,” which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.

This is fundamentally inaccurate. Originalism does not require “judges to to be historians.” It merely requires judges to identify the meaning–or communicative content–of the text of the Constitution. More specifically, it requires them to identify where that public meaning when enacted differed from the meaning these words have today. For example, although the Supreme Court has never expanded the actual meaning of the word “commerce” in the Commerce Clause (instead, it expanded the powers of Congress by a capacious construction of the Necessary and Proper Clause), some today may identify the word “commerce” with “economic activity,” though its original meaning was narrower than that. At the time of the Founding, and at least into the mid-Twentieth Century, the word “commerce” referred to an activity distinct from the economic activities of agriculture, husbandry, or manufacturing. While the latter words referred to different manners of producing things, the former referred to the trade and transportation of things that are so produced.

You don’t need a PhD. in history to discover this. ...

But at any rate, neither judges nor scholars ought to employ “law office history,” if what is meant by this is “cherry-picking” evidence to fit the conclusions they may wish to reach. An argument against bad originalism is not an argument against originalism.

And from the conclusion:

At this point, it is only fair to ask Professor Rudenstine to identify his own approach to constitutional interpretation and application to see if it performs better or worse than originalism. For is that not the fair test of the relative strengths of competing constitutional approaches? My guess is that, whatever his approach, it will perform worse by every criteria by which he judges originalism as wanting. But I cannot know this for certain until he informs readers like me of his own allegedly superior approach.


More from Eric Segall on Brown and Originalism
Michael Ramsey

Regarding my earlier post on his Vox essay, Eric Segall writes:

I think it very likely that the Strauder majority was correct and Harlan's dissent in Plessy correct as an original matter but that Brown was still wrong as an original matter. I think the best reading of history and text is that much formal discrimination against Blacks was outlawed but not all including school segregation given the widespread practices at the time. More importantly, if the question is close as a matter of history, then absent a presumption of constitutionality, an originalist method loses all its benefits (like constraint). Given that presumption, and the longstanding tradition of segregated schools, plus the vagueness of the text, Brown can't be anything other than a living constitution decision. FWIW, I think Originalists would be better off, and more honest, just saying no theory is perfect, and Brown is an exception to an otherwise reasonable theory.

My reaction is that these are interesting points worthy of further thought.  I had not really considered the idea that both Plessy and Brown might be wrong as an original matter (in my partial defense, it's not my area of expertise).  But on an initial consideration, I'm unsure how that result could be derived from the words of the Fourteenth Amendment (as opposed to post-ratification practices).  Professor Segall and I may simply disagree on how much relative weight to give text and post-ratification practice.

The Constitution Is Written in the Language of the Law
John O. McGinnis

The Constitution has launched hundreds of debates about its meaning.  But before these disputes can be settled an underlying clash of visions about the nature of its very language requires resolution.  One view holds that the Constitution is written in ordinary language and is thus fully accessible to anyone with knowledge of the English language.  The other, in contrast, is that the Constitution is written, like many other documents with legal force, in the language of the law.

The ordinary language view is often assumed both by the Supreme Court and scholars. But in a new paper Mike Rappaport and I show that the better view is that the Constitution is written in the language of law and that this has important implications for constitutional interpretation. Surprisingly, no one has ever considered how to determine whether the Constitution is written in the language of the law or in ordinary language.

We describe the factors to determine whether Constitution is written in the language of the law. The language is key and the paper for the first time catalogues all the technical terms in the original document.  We show that the number of legal terms in the Constitution is much larger than most people recognize and probably numbers about one hundred! We also show that the legal language the Constitution presupposes go beyond mere technical terms but encompasses legal interpretive rules, because the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules.  Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues.

The Constitution’s legal language has important theoretical and practical significance.  Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions. It also tells us where to find this richness— in the legal meanings and interpretive rules that were deemed applicable at the time.  The Constitution was not created ex nihilo and its language of the law brings centuries of tradition and refinement along with it. 

An abstract and copy of the paper can be found here.

SCOTUSblog Symposium on Judge Gorsuch
Michael Ramsey

At SCOTUSblog, an ongoing symposium on "Judge Neil Gorsuch's jurisprudence and views on various legal topics, and how these might compare with Justice Antonin Scalia's."  Here are the contributions so far:

Gorsuch on abortion, religion and reproductive rights, by Amy Howe

A closer look at Judge Neil Gorsuch and class actions,  by Amy Howe

Judge Gorsuch’s First Amendment jurisprudence, by Tejinder Singh

Judge Gorsuch’s arbitration jurisprudence, by Edith Roberts

Introduction: A close look at Judge Neil Gorsuch’s jurisprudence, by Amy Howe

From the introduction: 

There will never be another Antonin Scalia. When he died on February 13, 2016, the brilliant and pugnacious jurist left behind a legacy that included almost singlehandedly bringing originalism – the idea that the Constitution should be interpreted according to what it meant when it was adopted – to the forefront of legal debate, both at the Supreme Court and more broadly. Accepting the nomination to fill the vacancy left by Scalia’s death, Judge Neil Gorsuch spoke for many when he called Scalia “a lion of the law.”

Like Scalia, Gorsuch describes himself as an originalist: In a 2016 speech at Case Western Reserve University, he told his audience that judges should interpret the Constitution and the law “by focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” But, if he is indeed confirmed, what effect will Gorsuch have on specific areas of the law?


Gary Lawson on Proving the Law
Mike Rappaport

I received this book – Evidence of the Law: Proving Legal Claims – in the mail and am looking forward to reading it.  Gary Lawson, of course, is a leading originalist and an expert in administrative law.  I use his first rate Administrative Law casebook.

In Evidence of the Law, Gary discusses the fact that our legal system, while focusing carefully on the methods and standards for proving facts, generally ignores the methods and standards for proving law.  Yet, such methods are crucial.

And nowhere is this more true than in originalism.  If one thinks about constitutional originalism, it is very much concerned about the methods and standards for proving law.  Originalism, of course, defines the law as the original meaning of the Constitution.  But it spends significant time considering how one establishes that original meaning.  Does one consider the original intent, the original public meaning, or the original methods?  Also, originalism is concerned about the standards that govern the proof of the law.  For example, if a person challenging legislation can only prove by a preponderence of the evidence – by 51% probability – that the law forbids the legislation, is that sufficient to justify striking it down?  Some originalists argue yes, others argue no.

Here is the synopsis from Amazon:

How does one prove the law? If your neighbor breaks your window, the law regulates how you can show your claim to be true or false; but how do you prove that in breaking your window your neighbor has broken the law? American jurisprudence devotes an elaborate body of doctrine—and an equally elaborate body of accompanying scholarly commentary—to worrying about how to prove facts. It establishes rules for the admissibility of evidence, creates varying standards of proof, and assigns burdens of proof that determine who wins or loses when the facts are unclear. But the law is shockingly inexplicit when addressing these issues with respect to the proof of legal claims. Indeed, the entire language of evidentiary proof, so sophisticated when it comes to questions of fact, is largely absent from the American legal system with respect to questions of law.

As Gary Lawson shows, legal claims are inherently objects of proof, and whether or not the law acknowledges the point openly, proof of legal claims is just a special case of the more general norms governing proof of any claim. As a result, similar principles of evidentiary admissibility, standards of proof, and burdens of proof operate, and must operate, in the background of claims about the law. This book brings these evidentiary principles for proving law out of the shadows so that they can be analyzed, clarified, and discussed. Viewing legal problems through this lens of proof illuminates debates about everything from constitutional interpretation to the role of stipulations in litigation. Rather than prescribe resolutions to any of those debates, Evidence of the Law instead provides a set of tools that can be used to make those debates more fruitful, whatever one’s substantive views may be. As lawyers, judges, and legal subjects confront uncertainty about what the law is, they can, should, and must, Lawson argues, be guided by the same kinds of abstract considerations, structures, and doctrines long used to make determinations about questions of fact.

Harold Anthony Lloyd: Why Originalism Cannot Work
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art on SSRN. Here is the abstract:

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It's hard to see how such Originalism withstands scrutiny.

First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences' meaning prevails).

Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus?

Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon the meaning of "planet" adopted by the speaker. Unlike the "reasonable" reader of Gorsuch's Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless.

Fourth, to the extent a judge is principally "constrained" by a text or texts (as he may determine), by dictionaries that the chooses, and by “history” as the judge understands it, isn't judicial activism encouraged rather than restrained? Talk of a "reasonable" reader masks the fact that their [ed.: there] can be multiple "reasonable" conclusions of what a speaker meant[.] Is a judge not therefore left to pick definitions and application of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames and their terms are subject to multiple definitions therefore raising the very same questions just raised above.

Finally, Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as "Landscape with the Fall of Icarus" often attributed to Bruegel and which inspired such great ekphrasis as Auden's "Musée Des Beaux Arts"). These further failures underscore the dysfunction of Originalism as described by Gorsuch above.

At Legal Theory Blog, Larry Solum has critical comments beginning: 

The author does not cite any work by contemporary originalists in support of the notion that originalism limits the original meaning of a term to the extension of the constitutional language at the time each provision is framed and ratified.  And there is a good reason that no citations are provided: no contemporary originalist (of whom I am aware) holds this view.  Consider the application of Lloyd's argument to the term "states."  The logic of the argument implies that "states" should be limited to the 13 states that were identified in the text ..., but that understanding of the meaning of "states" is directly contradicted by the text of the constitution itself--which provides for the admission of new states to the union. ...

I agree (with Professor Solum), though I like that Professor Lloyd capitalizes "Originalism" (which, perhaps oddly, most originalists do not).

I'd also add that of Professor Lloyd's five reasons originalism "cannot work," the first two are at best arguments why it's normatively a bad idea, not reasons it "cannot" work; the fourth depends on the conclusion that originalist judges are comprehensively dishonest, a point not proven; and the fifth seems irrelevant (law being different from art).  [The third reason is the one directly engaged by Professor Solum].


Eric Claeys on Judge Gorsuch and Natural Law
Michael Ramsey

In the Weekly Standard, Eric Claeys (George Mason): Neil Gorsuch and Natural Law.  Fromt he introduction:

Later this month, the Senate Judiciary Committee convenes hearings on the nomination of Judge Neil Gorsuch to replace Antonin Scalia on the Supreme Court. Although the Committee will have a lot of legitimate issues to consider, some outsiders are trying to interest it in two unusual topics: natural law, and the writings of a professor named John Finnis. These topics are distractions. The committee's main business is to see whether Judge Gorsuch is qualified to apply the law impartially as a judge. And if the committee does decide to explore natural law or Finnis's writings, those sources will point the committee back to its main business.

Finnis is now a professor emeritus at Oxford and a professor at Notre Dame Law School. After clerking at the Supreme Court, Gorsuch earned a Ph.D. at Oxford, and Finnis supervised Gorsuch's dissertation there. In the last few weeks, some court-watchers have suggested that Finnis's political views provide clues about how Gorsuch will behave as a justice. George Will hopes that Gorsuch's studies under Finnis will help him "correct" some of Scalia's views on the Constitution. (Scalia denied that the Constitution explicitly recognizes natural law or protects natural rights.) Several bloggers and news articles have noted that Finnis opposes abortion and non-conjugal and/or contracepted sex. Some hope, and more are alarmed, that Finnis's views on those subjects may have rubbed off on Gorsuch.


More fundamentally, though, the suggestions being made about Finnis and natural law are confused about the judiciary committee's job. The suggestions imply that judges vote on cases before them as members of Congress vote on bills—by what they think of a given bill on the merits. Judges shouldn't vote that way; they should figure out what legal sources control and apply those sources impartially. If the committee wants to explore how the natural law or Professor Finnis relate to being a Supreme Court Justice, it should ask what both have to say about adjudication—not any hot-button voting issue.

And here, traditional natural law teachings reinforce what common sense already suggests. "Natural law" is a way of saying that there are objective standards for right and wrong guiding politics. But natural law principles don't supply cookie-cutter solutions to political problems. Reasonable people often disagree about how general objective standards apply to specific problems. To resolve such disagreements, natural law justifies elections and constitutional government—but it also requires the government's officers to follow the Constitution and the laws made pursuant to it. ...