Randy Barnett Recounts Some of this Week's Originalism Debates
It has been a big blogging week for originalism. Randy Barnett covers the highlights: Originalism teachable moment update (with many links, including to this blog, which I appreciate).
At Legal Theory Blog, Larry Solum has added this lengthy comment (on Professor Gienapp's critique of originalism). From the conclusion:
I am open to the argument that the communicative content of the text of the United States Constitution is epistemically inaccessible to anyone who does not immerse themselves in the conceptual world of the late eighteenth-century, but I do not believe that this argument can be made on the basis of a priori assumptions about the accessibility of the past in general. The conceptual world of the late Eighteenth Century is closer to our conceptual world than is the conceptual world of Justinian's era. The legal texts of Justinian's era are in Latin, not English; Justinian's Code was drafted from 529 to 565 well more than a thousand years before the drafting the United States Constitution. The text of the unamended United States Constitution was written in the American English of its era; although there has been a considerable amount of linguistic drift or semantic shift, approaching founding era texts is not like reading Old English ("ond þa cyningas begen ofslægene, ond sio laf wiþ þone here friþ nam) or Middle English ("the hooly blisful martir for to seke"). For example, I have a fairly high degree of confidence that I can discern the communicative content of sentences like, "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." To be clear, that does not mean that I fully understand the reasons for which this provision was adopted or the effects that it was intended to produce: what I claim to be able to grasp is the communicative content of the text.
Also, Professor Barnett's round-up doesn't include his own response to Erwin Chemerinsky's latest attack on originalism: Not an April Fools’ Day post: Another contradictory attack on originalism. Among other things, he has this response to the claim, recycled by Dean Chemerinsky, that originalism allows segregation:
... [T]he 39th Congress [did not] racially segregate DC schools, which were already segregated. Indeed, after the 14th Amendment was ratified by the states, the Republican majority of both houses voted in favor of a civil rights measure that would have made state school segregation illegal. That provision was not included in the Civil Rights Act of 1875 (which the Supreme Court eventually invalidated) because of supermajority procedural requirements in both the House and the Senate–the sort of supermajority requirement Dean Chemerinsky is now urging Senate Democrats to employ.
Stanford law professor Michael McConnell laid out the facts here over 20 years ago in 1995 and, in his critical reply, Harvard legal historian Michael Klarman does not dispute any of these facts. Instead, he offers methodological arguments about originalism. Revealingly, Klarman’s response is entitled Brown, Originalism, and Constitutional Theory (I cannot find a free link but you can read the synopsis). McConnell responds persuasively to Klarman here; and another reply by McConnell to a different critique is also interesting.) You can read the exchange for yourself and decide who has the better of the factual dispute.
It's been a very busy week.