« Justice Thomas Lee and Stephen Mouritsen on Corpus Linguistics and Judicial Interpretation
Michael Ramsey
| Main | Ilya Somin on Presidential War Power and North Korea
Michael Ramsey »

08/10/2017

Josh Blackman: David Souter the Originalist
Michael Ramsey

At Josh Blackman’s Blog: David Souter the Originalist. From the introduction:

Unlike Justice Stevens, who has filled his retirement from acting status by writing books and railing against Justice Scalia, Justice Souter has continued to perform yeoman’s work through sitting by designation on the First Circuit. At this point, Souter has probably heard more cases on the First Circuit as an Associate Justice than he did during his brief five-month stint there from May to October of 1991. Yesterday, he authored the panel opinion in a fascinating case I have been following for some time.

The case involves Congregation Jeshuat Israel, which occupies the Touro Synagogue in Newport, Rhode Island (the same Synagogue that George Washington wrote to two centuries ago) and Congregation Shearith Israel in New York. Part of the dispute concerns the ownership of the rimonim, “a pair of finials with attached bells made of silver and gold and designed to surmount the shafts around which the Torah scrolls were rolled.” Specifically, the court had to determine whether the word “paraphernalia” in a contract written in 1903 embraced the remonim. To do so, Justice Souter employed an analysis that could only be described as originalist: how was the word understood at the time the document was drafted.

Originalism (though not by that name) is standard practice in legal interpretation outside of constitutional law (contracts, wills, statutes, treaties).  I would not say it's the exclusive practice, but it is a leading practice.  The burden for nonoriginalists in constitutional law is to explain why originalism is not appropriate in constitutional law even though it is standard practice elsewhere.  That is not an impossible burden, but it is the right one.