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49 posts from April 2017

04/24/2017

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa?
Andrew Kent

[Editor's note:  For this guest post we welcome Professor Andrew Kent, Professor of Law at Fordham Law School, one of the nation's leading scholars on the extraterritorial Constitution.  This is part 1 of a two-part discussion.]

Thanks to Michael Ramsey, Mike Rappaport, and the University of San Diego School of Law's Center for the Study of Constitutional Originalism for inviting me to talk earlier this month about whether the Constitution, in its original public meaning, provided extraterritorial protections to either U.S. citizens or noncitizens.

This is highly salient now, both because the United States government conducts a wide array of activities outside U.S. borders that might affect constitutional rights, if such rights exist—e.g., surveillance, drone strikes, detentions and interrogations— and because the Supreme Court is hearing this term an important case about the issue.

As I have written previously, based on a review of case law, political branch practice, and commentary over the course of U.S. history:

"[T]erritorial location has historically been a crucial determinant of protection from the Constitution and the courts. Generally speaking, both citizens and noncitizens within the United States were protected by the Constitution and could access the courts to claim protection. But, before the twenty-first century, noncitizens outside the sovereign territory of the United States were held to lack any constitutional rights. On the other hand, U.S. citizenship or lawful permanent residence in the United States did at times provide some extraterritorial rights protection."

The dispute currently at the Supreme Court, Hernandez v. Mesa, concerns a Fourth Amendment damages claim brought by the family of a teenaged Mexican national killed by a U.S. border patrol agent. The U.S. official was standing in the United States when he fired his weapon; the teen was in Mexico when he was hit. The primary dispute is whether the fact that the injury occurred outside the borders of the United States means that Hernandez, as a non-U.S. citizen, lacks Fourth Amendment rights to be free from an unreasonable use of deadly force.

The parties' briefing is doctrinal and precedent-based, not originalist. One of the important precedents is a 1990 decision, United States v. Verdugo-Urquidez, in which the Supreme Court held—consistent with the traditional view—that the Fourth Amendment did not apply to the search in Mexico by U.S. law enforcement of a Mexican national's house. But Hernandez's family argues that the categorical rule of Verdugo, basing constitutional protection on citizenship and territorial location, was undermined by Boumediene v. Bush in 2008, which famously applied a flexible, totality-of-the-circumstances kind of approach to deciding that the Constitution protected habeas corpus for noncitizen detainees at the U.S. naval base in Guantanamo Bay, Cuba.

Unlike the parties, in this post I want to put aside post-1789 case law to focus instead on the original public meaning of the Constitution's text.

The Text

With very few exceptions (such as the Thirteenth Amendment), the Constitution does not overtly specify the places where rights apply. But some hints about scope can be found in the Preamble and Supremacy Clause, the provisions Akhil Amar has called " the Constitution’s most sustained meditation upon itself." As I noted in an article about extraterritorial constitutional rights, the Preamble states the goal of securing liberty "to ourselves and our posterity," and notes that "this Constitution" is ordained and established "for the United States of America." The Supremacy Clause describes the Constitution as "the supreme law of the land." The law of the land was a term of art in eighteenth century English and colonial law, referring to domestic as opposed to international law—the common law and legislation.  (See Michael McConnell and Nathan Chapman on due process and the law of the land.) Together the Preamble and Supremacy Clause suggests a domestically-focused document, protective of the people of the United States in the United States via fundamental domestic law. 

The People, Persons, and Citizens

Cutting against a domestic-only reading is the fact that almost all rights and limitations in the Constitution are written in broad and open-ended terms. For example, most rights in the Fifth Amendment are held by "person[s]," with the one exception—the Takings Clause—being phrased a  simple limitation on power. Sixth Amendment rights are for "the accused." Bills of attainder and ex post facto laws may not be enacted by Congress, full stop.

This open-ended language seems like it must be meaningful. A provision such as the Article IV Privileges and Immunities Clause shows that the drafters knew how to limit rights to U.S. citizens only, if they had wanted to.

What about the rights holders specified by the text of the Fourth Amendment, the provision at issue in Hernandez? The Supreme Court in Verdugo and some scholars such as Amar read the phrase "the People" in the Fourth Amendment as a term of art, referring to a collective, domestic group, the same "We the People of the United States" referenced in the Preamble, in Article I section 2's provision that "the People of the Several States" shall elect House members, and in the First, Second, Ninth, and Tenth Amendments. According to Amar, the core meaning of "the People" referred to "First Class Citizens," the group who were voters, jurors, and militia members. Somewhat similarly, in Verdugo, the  Court read the People" in its original meaning to be the "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." The Court contrasted "the People" with the broader and more encompassing term "person" in the Due Process Clause.

If this is right, Fourth Amendment rights would seem to be available to "the People" (including paradigmatically U.S. citizens) everywhere, but to non-members of the People nowhere. As I have argued, however, I am quite skeptical reading the term "the People" (or the allegedly broader term "person") to have this kind of significance. Examining key precedents for the Bill of Rights—U.S. state constitutions and proposed amendments to the Constitution offered by state ratifying conventions—one sees an array of terms used to describe rights holders: people, person, man, subject, individual, freeman, resident, inhabitant, member. The use of these different terms seems to have been indiscriminate in almost all cases, rather than intended to convey important information about the scope of rights holders.

[to be continued -- ed.]

Beyond the Text: Justice Scalia's Originalism in Practice
Michael Ramsey

I have posted a new essay on SSRN: Beyond the Text: Justice Scalia's Originalism in Practice (Notre Dame Law Review, 2017, Forthcoming).  Here is the abstract

This article, part of a symposium on the late Justice Antonin Scalia, considers Justice Scalia’s use of constitutional originalism as a practical methodology, as reflected in his judicial opinions. Its aim is not comprehensive, for that is likely beyond the scope of any single article. Rather, its goal is to identify central and perhaps unexpected components of Justice Scalia’s approach as well as to identify areas where his methodology remained undeveloped. Part I describes four prominent aspects of his use of originalism to decide cases. In particular, it discusses ways in which Justice Scalia went beyond the conventional textualist focus on the Constitution’s words and phrases and direct evidence of the ways they were used at the time of enactment. Although critics have used these departures to accuse Scalia of inconsistency, this Part argues that they are better understood as components of an originalist methodology that was less strictly textualist than is often supposed. Part II identifies four areas central to practical applications of originalism where Justice Scalia did not fully develop his approach, and where a textualist account seems unlikely to provide ready solutions.

04/23/2017

Balkinization Symposium on "The Framers' Coup"
Michael Ramsey

At Balkinization, a symposium on Michael Klarman's book The Framers' Coup: The Making of the United States Constitution (Oxford Univ. Press 2016). Here is a complete list of contributions, from contributors Jack Balkin, James Fox, Laura Kalman, Jud Campbell, Sandy Levinson, Christina Mulligan, Calvin Johnson, Maseeh Moradi, Ryan Williams, Mark Graber, Steven Griffin and Michael Klarman.

Here is the book description from Amazon:

Americans revere their Constitution. However, most of us are unaware how tumultuous and improbable the drafting and ratification processes were. As Benjamin Franklin keenly observed, any assembly of men bring with them "all their prejudices, their passions, their errors of opinion, their local interests and their selfish views." One need not deny that the Framers had good intentions in order to believe that they also had interests. Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself.

The Philadelphia convention could easily have been a failure, and the risk of collapse was always present. Had the convention dissolved, any number of adverse outcomes could have resulted, including civil war or a reversion to monarchy. Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories: the rebellion of debtor farmers in Massachusetts; George Washington's uncertainty about whether to attend; Gunning Bedford's threat to turn to a European prince if the small states were denied equal representation in the Senate; slave staters' threats to take their marbles and go home if denied representation for their slaves; Hamilton's quasi-monarchist speech to the convention; and Patrick Henry's herculean efforts to defeat the Constitution in Virginia through demagoguery and conspiracy theories.

The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests.

Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since.

And from Ryan Williams' contribution to the symposium:

As with any significant new history of the Constitution’s Framing, it seems inevitable that Klarman’s book will be pressed into service by the contending sides in the decades-long debate over “originalist” theories of constitutional interpretation.  Klarman himself has refreshingly little to say on this topic, preferring to lay out the history and allow the interpretive conclusions to fall where they may.  And Klarman’s history may prove challenging for at least certain types of originalist theories, particularly those that depend on an unduly romantic conception of popular sovereignty or implausible notions of the Framers’ foresight to legitimate their enterprise.

But as Stephen Smith observes, originalists as a group are generally untroubled by the notion of a “merely human” Constitution.  The fact that the Constitution was drafted by historically situated, fallible individuals working under constraints of limited time, knowledge, and foresight is a familiar starting point for virtually all theories of originalism.  Nor would the fact that the Constitution was drafted and ratified under conditions that fell far short of a democratic ideal necessarily doom the originalist endeavor.  Indeed, when viewed from a modern perspective, the anti-democratic features of the drafting and ratification process to which Klarman draws our attention pale in significance to the much more familiar democratic deficiencies resulting from exclusions of African Americans, Native Americans, and women.  Moreover, to the extent Klarman identifies lingering substantive anti-democratic deficiencies resulting from the Framers’ decisions, these deficiencies are clustered almost entirely in the Constitution’s “hard-wired” provisions, such as those providing for equal State representation in the Senate, the Electoral College method of choosing the President, and the onerous amendment processes set forth in Article V.  (pp. 625-28).  Because proponents of virtually all interpretive theories tend to read such provisions the same way, Klarman’s account gives us little concrete basis for choosing one interpretive theory over another.

In the end, the question confronting modern interpreters is very similar to the one presented to members of the ratifying public in 1787 and 1788 – namely, whether we are willing to accept the highly imperfect document bequeathed to us by the Framers in Philadelphia as a source of binding law.  Like the vast majority of the ratifiers at that time, members of the present generation had no opportunity to participate in that document’s drafting and many might well prefer any number of alternative governmental arrangements if given the choice. Nevertheless, once the universe of realistic alternative choices is clearly in view, some may find reasons for believing that the merely human Constitution of 1787 – whatever its flaws or shortcomings – is nonetheless acceptable enough to warrant their recognition.

04/22/2017

Mikolaj Barczentewicz: The Limits of Natural Law Originalism
Michael Ramsey

Mikolaj Barczentewicz (University of Oxford - University College) has posted The Limits of Natural Law Originalism on SSRN. Here is the abstract: 

In “Enduring Originalism,” Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, “positive” (“original-law”) originalism of Stephen Sachs and William Baude. It is that aspect of the paper that I focus on in this short essay. Contrary to their strong claims in that direction, Professors Pojanowski and Walsh are far from establishing that positive originalism is deficient and that that their version of natural-law-based originalism offers a plausible alternative to positivist originalism. There is also a worry that, despite professing sympathy towards the “positive turn” in originalism, “Enduring Originalism” is at its core an account of what Professors Pojanowski and Walsh think the law should be, and not what the law is; precisely the kind of argument the positive turn militates against.

(Via Larry Solum at Legal Theory Blog).  

And here is a link to Enduring Originalism by Pojanowski and Walsh.

04/21/2017

The Syria Strike and the Quasi-War with France
Andrew Hyman

In 2015, Michael Stokes Paulsen and Luke Paulsen wrote this: "Congress’s power 'to declare War' is an on-off switch; it is not a 'dimmer switch' with which to control the Commander in Chief."  I believe that is generally correct as an original matter, for the reasons that the Paulsens explained, because the framers refused to give Congress any power to "make" war (i.e. to conduct it).

In the case of the recent missile strike on Syria, Professor Paulsen writes that the strike was unconstitutional because  Congress did not declare war or otherwise authorize the strike against Syria.  However, Congress has indeed been authorizing hostile acts against Syria.  Just to take one recent example, Congress decided a few months ago to give the president authority to send surface-to-air missiles to Syrian rebels.  According to news reports, President Obama signed that bill in December.  Must the president now only destroy Syrian aircraft by providing missiles to rebels who will do it, instead of using tomahawk missiles to destroy Syrian planes sitting on the ground? 

In 1798, Congress authorized the president to take some specific warlike measures against French naval ships, as part of a quasi-war (see An Act further to protect the commerce of the United States).  The legislation was later upheld by the U.S. Supreme Court in the case of Bas v. Tingy.  The legislation authorized U.S. "vessels" to take action against French vessels.  But suppose a naval battle between a French ship and an American ship was raging near shore off the coast of Florida, and American cannons happened to be situated on shore, and the question became whether the president of the United States had power to authorize those cannons to fire upon the French ship in order to help the American ship.  Would anyone really say "no"?  Would anyone say that the legislation only authorized a partial or imperfect war of the naval kind, so that any use of land forces would have been illegal?  The problem with that line of reasoning is that it would defeat the original constitutional meaning of the war power which allowed the conduct of war to vest in the president.  It is not entirely clear how the lessons of the Quasi-War with France apply now to Syria, but I do think it would be silly to suppose that the Constitution required the U.S. ship to sink without firing the cannons from shore at the French ship.

Kurt Lash on Originalism and the Future of Religious Freedom
Michael Ramsey

At Liberty Law Blog, Kurt Lash: Originalism and the Future of Religious Freedom.  From the introduction:

For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship. Presumably, one of these principles of national freedom involved religious freedom. I say presumably only because historians remain divided over whether the Fourteenth Amendment declared that the principles of free exercise and non-establishment now bound the states (“incorporated” those principles, as the Supreme Court would say). There is good reason to believe that people in 1868, when the Fourteenth Amendment was ratified, did view the first eight amendments to the Constitution as representing national privileges or immunities. Certainly the drafter of the Fourteenth Amendment, Representative John Bingham (R-Ohio), thought that was the case.

But even if this is correct, we are left with a conundrum: Which principles represented the understanding of religious freedom and governmental power in the realm of religion in 1868?

All true, and an issue that Justice Scalia, for example, simply failed to address.  See, for example, his dissenting opinion in McCreary County v. ACLU, in which he assumed that the principles of non-establishment from 1787-88 applied to a case brought against a local government under the Fourteenth Amendment.

04/20/2017

Gregory Maggs: A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution (85 Geo. Wash. L. Rev. 397 (2017)) on SSRN.  Here is the abstract

Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. To help readers understand and evaluate such claims, this piece describes the formation and content of the Articles of Confederation and explains four ways in which the Articles may provide evidence of the original meaning of the Constitution. The two appendices to this piece contain an annotated copy of the Articles of Confederation and a table linking provisions of the Constitution to their antecedents in the Articles.

This is another in Professor Maggs' useful series that also includes examinations of Founding-era dictionaries, the records of the Philadelphia Convention, and the ratification debates.

04/19/2017

"Inherent" Judicial Power
Michael Ramsey

Yesterday's Supreme Court decision in Goodyear Tire and Rubber Co. v. Haeger unanimously held that federal courts have "inherent" power to sanction defendants for wrongfully withholding evidence, but only to the extent of actual harm caused to the plaintiff.  From the majority opinion (per Justice Kagan):

Federal courts possess certain “inherent powers,” not conferred by rule or statute, “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U. S. 626, 630–631 (1962). That authority includes “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32, 44–45 (1991). And one permissible sanction is an “assessment of attorney’s fees”—an order, like the one issued here, instructing a party that has acted in bad faith to reimburse legal fees and costs incurred by the other side. Id., at 45.

Here is my brief comment on the idea of "inherent" powers, a concept that sometimes causes difficulties.  In our system of delegated powers, federal courts, like all other federal entities, can exercise only powers granted to them by the Constitution or federal law.  Any other conclusion violates the Tenth Amendment, which, though sometimes dismissed as a tautology, was added to the Constitution to make exactly this important point.  Calling something an "inherent" power does not obviate the need to find a source for it in the Constitution.  (The same important point applies to "inherent" executive powers of the President).  It would be better to call such things "independent constitutional powers" to emphasize that these are powers possessed independent of any grant from another branch but not powers possessed independent of the Constitution.

So does the Constitution grant federal courts independent constitutional powers such as the one posited in Goodyear?  Probably.  The only plausible constitutional source is Article III, Section 1, which declares that "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  It's very likely that this provision conveys substantive power to decide cases and conduct judicial proceedings.  Nothing else in Article III conveys this power; if Article III does not convey it, federal courts (including the Supreme Court) depend on Congress to provide it, but that's not how Congress proceeded in the 1789 Judiciary Act, which established courts but did not give them all their necessary case-adjudicating powers.  As a result, assuming the sanctioning power was part of the traditional powers of courts, it would be conveyed to federal courts by Article III, Section 1, and thus is an independent constitutional power (or "inherent" power, if you prefer).

And by parallel reasoning, the textual source for "inherent" executive powers (such as foreign affairs powers) is Article II, Section 1.  See (of course) here.

But I wish Justice Kagan had cited Article III, Section 1 in that key paragraph, just to make it all clear.

04/18/2017

Eugene Kontorovich on Emoluments
Michael Ramsey

At Volokh Conspiracy, Eugene Kontorovich, George Washington was the first president to stay in the real estate business.  Here is the introduction:

In [the April 14] Wall Street Journal, I have an op-ed, "Did George Washington Take ‘Emoluments’ "? It examines the first president’s extensive and hands-on business affairs to get a better handle on the nature of constitutionally prohibited “foreign emoluments.

Here’s an excerpt (article requires a subscription):

Mr. Trump is not the first president to have business dealings with foreigners. That was actually George Washington, whose conduct in office has been a model for every president.

By the 1790s, Washington was wealthy primarily because of real estate — renting and selling his vast holdings. As with Mr. Trump’s hotels, Washington’s renters or purchasers could include foreigners.

The president received constant reports from his nephew and subsequent managers and wrote to them at least monthly… This belies the notion that the Constitution limits a president’s management of, or benefit from, his existing business ventures.
***
One letter written by Washington deserves great attention in the current debate. On Dec. 12, 1793, Washington wrote to Arthur Young, an officer of the U.K. Board of Agriculture, an entity newly created and funded by Parliament at the initiative of William Pitt. The president asked for Young’s help in renting out his Mount Vernon lands to secure an income for his retirement. Not finding customers in America, he wondered if Young, with his agricultural connections, could find and organize some would-be farmers in his home country and send them over.

The op-ed is drawn from a larger research project on Washington’s business interests and the prohibition on emoluments.

(Thanks to Seth Barrett Tillman for the pointer).

RELATED:  Andy Grewal (Iowa) has posted this article on SSRN: The Foreign Emoluments Clause and the Chief Executive (Minnesota Law Review, Vol. 102, 2017).  Here is the abstract:

The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting "emoluments" from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read "emolument" as referring to any payment received from a foreign government, such that even a diplomat’s payment of a room reservation fee at the Trump Hotel establishes an impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that "emoluments," as used in the Foreign Emoluments Clause, refer to payments from a foreign government made in exchange for the U.S. Officer's performance of services (office-related compensation). The term does not refer to any and all payments from a foreign government.

Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. The Office of Legal Counsel and Comptroller General have struggled with the issues, but their approaches suffer from conceptual flaws. This Article proposes an alternative three-part business entity test to help analyze the problems.

After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.

Larry Solum's Ten-Part Defense of Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has completed his ten (!) part series defending originalism.  There are links to all ten posts here.  (The defense is based on this longer article (143 pages), as effectively summarized in this congressional testimony (only 12 pages)).  So, originalism, at any length you'd like.

Here is the overall conclusion from the final post:

My goal in these ten posts has been to provide an overview of the case for originalism.  The core of that case is contained in two claims:

  • The Fixation Thesis: The communicative content of the constitutional text is fixed at the time each provision is framed and ratified.
  • The Constraint Principle: Constitutional practice should be constrained by the communicative content of the text; at a minimum, constraint requires consistency with the text.

The Fixation Thesis should not be controversial.  When we interpret old documents, we use the conventional semantic meanings of the words and phrases that were in effect at the time the document was written.

The Constraint Principle makes a normative claim for which two clusters of pro tanto reasons were provided: (1) the Constraint Principle better achieves the rule of law than does living constitutionalism, because (a) it better serves the rule of law values of stability, predictability, certainty, consistency, and publicity, (b) it better prevents a downward spiral of politicization of the law, and (c) it avoid the great evil of judicial tyranny; (2) the Constraint Principle better achieves legitimacy than does living constitutionalism, because (a) it provides greater democratic legitimacy than does a committee of nine officials with life terms who are unconstrained by the text, (b) it avoids the transparency problem associated with most forms of living constitutionalism, and (c) it limits judges to their legitimate judicial role.

For originalism to be meaningfully different than living constitutionalism, it must be the case that the original meaning of constitutional text is not indeterminate and that the degree of underdeterminacy is not so substantial as to permit almost all living constitutionalist results.  In fact, the original meaning is quite determinate with respect to the hard-wired constitution (the basic plan of government) and even seemingly open-textured provisions such as the Equal Protection Clause are far more determinate than many nonoriginalists assume.

One of the themes of these posts is that the "great debate" is complex.  This should come as no surprise.  Originalists and living constitutionalists have been arguing with each other and among themselves for decades.  Nonetheless, progress can be made in this debate.  The aim of this series of posts has been to show that progress is possible, if originalists and nonoriginalist living constitutionalists are willing to debate the issues on the merits, with an open mind and a dedication to scholarly rigor.