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04/27/2017

Two from Steven Calabresi
Michael Ramsey

In the mail, from Steven Calabresi (Northwestern):

(1) Steven G. Calabresi and Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648 (2016).  Here is the abstract:

This article examines the original meaning of the equality guarantee in American constitutional law. It looks [at] the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Even if one doesn't accept the ultimate conclusion, the article's historical evidence on the focus by the Fourteenth Amendment's framers on prohibiting the idea of a caste system is impressive and important for analyzing multiple issues under the Amendment.

(2) Steven G. Calabresi, Annual B. Kenneth Simon Lecture: On Originalism and Liberty, 2015-2016 Cato S. Ct. Rev. 17 (2016).  From the introduction:

My talk is titled “Originalism and Liberty” because I am an originalist when it comes to constitutional interpretation and thus agree with the methodological approach of Justices Antonin Scalia and Clarence Thomas. I should mention at the outset that I clerked for former Justice Scalia, and I deeply admire him and am grateful to him because he was my mentor for 34 years. Nonetheless, in the 25 years since I left Washington, D.C., to teach law at Northwestern University, I have studied the history of the Constitution and of the Fourteenth Amendment and Magna Carta in great depth and have concluded that the original meaning of those documents is somewhat more libertarian than Justice Scalia, for example, realized. I want today to present briefly my reasons for reaching the conclusion that originalism means endorsing a presumption of liberty and not a presumption of constitutionality when courts decide the cases that are before them.1 In endorsing a presumption of liberty, I am agreeing with Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty, even though I do not agree with everything Randy says in that book.

And also:

Before beginning my proof that originalism leads to a presumption of liberty, I need to explain what I think it means to be an originalist. I think originalism requires that when one interprets any legal text, whether it be the Constitution, a statute, a contract, or a Supreme Court precedent, one must give the words of the text one is interpreting their original public semantic meaning. This means consulting dictionaries, grammar books, and newspapers published at the time the legal text became law. I do not believe it is appropriate for judges to consult the original intent that animated the adoption of a clause but only the original semantic public meaning of the words of the text. Laws adopted by dead people bind us but their unenacted intentions do not. My view of originalism is thus the view expressed by Justice Scalia when he spoke at Catholic University in the fall of 1996. In that speech, he said:

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. . . . The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the  intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.

My task in this essay is to explain what I think was the original semantic public meaning of several words and clauses that appear in the text of the Constitution, the Bill of Rights, and the Fourteenth Amendment, which I think should lead to a presumption of liberty.