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34 posts from May 2018


James Durling: The District of Columbia and Article III
Michael Ramsey

James Durling (Yale Law School, Students) has posted The District of Columbia and Article III on SSRN.  Here is the abstract:

Today, nearly everyone assumes that the District of Columbia is an exception to Article III. They assume, in other words, that Congress may create non-Article III courts in the District and staff them with judges who lack salary protections and life tenure. Indeed, forty-five years ago, the Supreme Court specifically upheld the newly created non-Article III court system in the capital. And since that decision, nearly every major scholar of federal courts has accepted the District’s Article III exceptionalism. 

This Article challenges the current judicial and scholarly consensus. Drawing upon extensive historical research, it shows that both the original meaning of the Seat of Government Clause and 170 years of historical practice make clear that Article III’s judicial protections apply fully to the District. It further shows that the various functional justifications typically used to defend adjudication by non-Article III tribunals do not apply to the courts in the capital. In short, this Article establishes that the current D.C. local court system is unconstitutional.

For the thousands of D.C. residents who have to go before non-Article III courts each year, this conclusion should be significant in its own right. Indeed, the history of non-Article III courts in the District reveals the concerning political influence of crime and race on Congress’s decision to create non-Article III tribunals in the capital. But this Article’s conclusion also has broader implications outside the Seat of Government. Perhaps most importantly, it identifies a new principle—Article III’s “one-way ratchet”—that would limit the use of non-Article III tribunals in other contexts. And more broadly, the history of the District of Columbia’s relationship to Article III may provide us with new substantive and methodological insights on our Article III history and jurisprudence.

Seems right to me, as an original matter.

(Via Larry Solum at Legal Theory Blog).


Stephen Presser on Raoul Berger
Michael Ramsey

At Law and Liberty, Stephen Presser (Northwestern): The Coming Resurrection of Raoul Berger? A Remembrance of Government by Judiciary.  It begins: 

Raoul Berger (1901-2000) was the most important and daring voice in favor of an originalist approach to the Interpretation of the Constitution in the last third of the twentieth century. He was not, like many other academic theorists, someone who spent all his professional years as a tenured member of a prestigious faculty, although he was, for a few years, a professor at the law school of the University of California at Berkeley, and, following that, was Charles Warren Senior Fellow in Legal History, in residence at Harvard Law School. Before he was associated with law schools, however, Berger had been a successful concert violinist, and then an equally successful practicing lawyer and government bureaucrat. Once he embarked on his third or fourth (depending on how one counts) career, as a legal scholar, he achieved his greatest fame.  Berger first made an indelible mark for monographs on impeachment and executive privilege, works which quite clearly suggested unpardonable excesses on the part of the Republican, Richard Nixon. That work was of great comfort to Democrats and liberals, but Berger’s scholarship was non-partisan. When he embarked on the research that resulted in Government by Judiciary, and that consumed him for the last three decades of his life (he lived to be just shy of 100, and wrote almost until the end), the progressives were dismayed and the conservatives jubilant, because Berger, as an originalist, provided a remarkable historical pedigree for the notion that progressive jurists had, for many years, wrongly construed the Constitution.

Berger’s brand of originalism was a bit different from that of the most important federal judges, such as Antonin Scalia, but it was clear that Scalia owed a lot to Berger. Berger believed in what he called “original intention,” while Scalia (and, in time, most originalists) embraced what came to be known as “original understanding.” Ostensibly this was a difference between the belief that we should seek the subjective intention of the Constitution’s framers, and the notion that it was the objective meaning of the words they used which ought to guide us. Hence Scalia’s frequent recourse to contemporary dictionaries, and Berger’s frequent use of opinions expressed in contemporary debates, as, for example, in his masterwork, Government by Judiciary.

In practice there may not really be much of a difference between Scalia and Berger, since, for the most part, one’s subjective meaning is consistent with the contemporary understanding of the words used. Nevertheless, since one really cannot easily look inside the skulls of drafters, Berger’s views were something of an easy target for some critics, who dismissed him as naïve and misguided. Time, however, has tended to support Berger and tarnish his critics, as Berger’s thorough sifting of the primary sources and his relentless defense against those whom he called the “activists” (the defenders really of judicial law-making) pretty thoroughly demonstrated the brilliance and correctness of his basic points.

Berger has become something of a stock example for the discredited "old orignialism."  As this post suggests, a more nuanced account of Berger and his contemporaries would be useful in appreciating the origins of modern originalism.

Thanks to Mark Pulliam for the pointer.


A Reply on New Originalism
Eric Segall

[Editor's note: this is a guest post by Eric Segall (Georgia State) in response to this post from yesterday. As always, we welcome responsive guest posts from anyone whose work is discussed on this blog.]

I always appreciate it when Mike Ramsey comments on my originalism work. His thoughtful response to my critique of Professor Solum's "Surprising Originalism" draws a distinction between a "mistake in application" of a rule and a mistake in "rule selection." I agree there's a difference, but not one that is material to the originalism debate or my belief that New Originalism and Living Constitutionalism are indistinguishable (there are of course many originalists who don't accept the premises of New Originalism).

Mike is suggesting that New Originalists think judges should be bound by the selection of rules in the Constitution but not how the ratifiers thought those rules would be applied.  The problem with this distinction is that few constitutional rules that lead to litigation are application free. Whether we are talking about freedom of speech, equal protection, establishment of religion, or cruel and unusual punishments, most, if not all the time, judges will have to apply rules with judgment. If judges (under New Originalism) are allowed to ignore what the people in 1787 or 1868 thought about the applications of the vague rules they set forth to specific facts, then judges can update the Constitution as they see fit, i.e., like a living constitutionalist.

Moreover, the application of vague rules to questions such as the validity of state bans on SSM or bans on women in combat involve value differences not fact differences. And few scholars or judges want to apply 1868 values concerning gender, sexual orientation, and most other modern constitutional problems. Thus, living constitutionalism and New Originalism merge for virtually all litigated constitutional questions that make their way to court.

Barnett, Bernick, and Gorsuch on Coke
Andrew Hyman

Back in March of this year, Mike Ramsey mentioned a new article by Randy Barnett and Evan Bernick titled "No Arbitrary Power: An Originalist Theory of Due Process of Law.”  I don’t aim to critique that whole article here, but would like to respectfully disagree here with their treatment of Lord Edward Coke.  Justice Gorsuch said something similar about Coke in the recent 5-4 decision in Sessions v. Dimaya (striking down a statute as being too vague).  I’ll try not to get too deep into the weeds here, but some weediness is unavoidable.

Coke, the great jurist of the Elizabethan and Jacobean eras in England, was highly revered during the founding era of the United States, much as William Blackstone was.  But it’s easy to misunderstand Coke, and I think that’s what Barnett and Bernick (as well as Gorsuch) have inadvertently done here.

The constitutional historian Richard B. Bernstein has accurately observed that Coke “wrote in the crabbed, thorny prose of the seventeenth century,” and Coke did so to such a degree that Thomas Jefferson once complained: “I do wish the Devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life.” Bernstein says that Jefferson’s view of Coke was “shared with nearly every law student of his time.”  That’s not to say that they did not admire Coke greatly, but rather that they found studying Coke very difficult.  We are now much farther removed from Coke than Jefferson was, which should give us great pause when making pronouncements about what Coke wrote.  That is why I will maintain an open mind about this matter, even as I present some evidence that seems compelling.

Here’s the passage of Coke in question, commenting on Chapter 29 of Magna Carta:

Nisi per Legem terrae.  But by the Law of the Land.  For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8. where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces of the Law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.  Without being brought in to answere but by due Proces of the Common   law.   No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land.  Wherein it is to be observed, that this chapter is but declaratory of the old law of England. 

Keep in mind that, in the same volume, Coke explained the term per legem terrae as “by the Common Law, Statute Law, or Custome of England” (Coke elsewhere wrote that "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them").  According to Barnett and Bernick (emphasis as in original):

By identifying due process of law with the law of the land, Coke incorporated into the former phrase the totality of England’s constitution, consisting  in Common Law,” “Statute Law,” and “Custome.” Due process meant both procedures and personnel associated with the common-law courts and the application of valid law—an enactment with content that was inconsistent with the “old law of the land” could not be applied to an individual.

In the recent 5-4 decision in Sessions v. Dimaya, Justice Gorsuch wrote something similar (citations omitted):

[I]n my view the weight of the historical evidence shows that the [Due Process] clauses ought to ensure that the people’s rights are never any less secure against governmental invasion than they were at  common  law.    Lord Coke took this view of the English due process guarantee…. And many more students of the Constitution besides -- from Justice Story to Justice Scalia -- have agreed that this view best represents the original understanding of our own Due Process Clause.

If Coke did indeed interpret the Due Process Clause as being violated whenever the legislature offers less protection than did English law that is now hundreds of years old, then such an interpretation by Coke ought to be hugely influential today, and hugely supportive of what Barnett, Bernick, and Gorsuch wrote (blockquoted above).  And, such an interpretation by Coke ought to be hugely empowering for the American judiciary, because any difference between ancient English law and current procedural or substantive law would be subject to ongoing judicial approval or rejection, to assure that current law is just as good as old English law was.  Nevertheless, for better or for worse, what Barnett and Bernick have attributed to Coke is not what Coke actually meant.  At the outset of the same volume, Coke wrote the following:

[T]he prudent Reader may discerne what the Common Law was before the making of every of those Statutes, which we handle in this work, and thereby know whether the Statute be introductory of a new Law, or declaratory of the old, which will conduce much to the true understanding of the Text itselfe.

This clarifies, for a prudent reader seeking true understanding, that when Coke later referred to the Edwardian statute “37 E. 3. Cap. 8” (which Coke meant to cite as “37 E. 3. Cap. 18”), and when Coke said that this Edwardian statute is “declaratory of the old law of England,” he meant that the statute was not saying something new but rather was reiterating what had already been said in Magna Carta.  The phrase “declaratory of the old law” did not mean “incorporating all pre-existing law,” as Barnett and Bernick would have it, although admittedly they have some very distinguished company in this misunderstanding of Coke.

It may well be that Coke made mistakes beyond misciting the Edwardian statute, but there is some truth to the humorously cynical view that Coke’s mistakes were the common law.  In any event, the mistakes of twenty-first century scholars (myself included) are surely not to be considered to be the ancient common law of England.


A Response to Eric Segall on New Originalism
Michael Ramsey

Last week I noted Eric Segall's post at Dorf on Law in which he criticized "New Originalism" as no different from living constitutionalism.  Commenting on a new article by Larry Solum, Professor Segall concluded: "The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism."  This is because, he says, "originalism, in [Solum's] hands, allows judges to update the application of the Constitution’s broad phrases over time as facts and values change."

Though I'll leave it to Professor Solum to respond specifically on his views, here I want to explain why I think Professor Segall is confusing two types of "updating" and thus reaching a stronger conclusion than is justified.  In sum, he's confusing mistakes in rule selection and mistakes in rule application.  Here's a core part of Segall's discussion, referencing the 1873 case Bradwell v. Illinois, in which the Court held that the Fourteenth Amendment did not entitle women to be members of the bar:

We know that the people living in 1873 thought the original public meaning of the Fourteenth Amendment was that women could be barred from practicing law. Solum says we are not bound by that meaning today because the people living then were wrong about the facts [regarding women's intellectual equality with men]. If he is right, then we are not bound by what the people in 1873 thought about gays and lesbians, abortion, the administrative state (such as it existed then), and the relative dangerousness of guns compared to concerns about public safety. In other words, Solum’s brand of originalism ... leads to a state of affairs where the meaning of the text is not fixed at ratification (as applied to hard facts), and we are obviously not bound by what the people at the time thought about how that meaning applied to practical legal problems. In other words, originalism and non-originalism end up in exactly the same place in the context of real life litigated cases.

Solum argues ... that the Court’s lax rules on summary judgment whereby judges dismiss civil cases before they get to the jury might be inconsistent with the original public meaning of the Seventh Amendment, which provides that in “Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” But the people who ratified this provision lived in a much less litigious world than we have today. They may well have been under the factual misunderstanding that our judicial system can tolerate the time it would take to try all civil cases without the current rules for summary judgment. Or not. The point is that if we allow judges to revisit the factual assumptions upon which the constitutional text was based, then we are in effect changing the meaning of that text, something judges do on a daily basis. If this is originalism, then everything is originalism.

But I think the Bradwell example and the Seventh Amendment example are different. 

In the first example, we are supposing for purposes of discussion that the framers of the Fourteenth Amendment adopted a rule something like "Woman shall be treated equally with men except where there are relevant differences between them," and that in applying that rule they thought women were intellectually less capable with respect to practicing law (thus the result in Bradwell).  New Originalism says: We are bound by the rule that "woman shall be treated equally with men except where there are relevant differences between them" but we are not bound by the (erroneous) factual conclusion that  women are intellectually less capable with respect to practicing law.  Thus we can now say Bradwell was wrongly decided and still be (new) originalists.  This is an example of a framers' mistake in application of a rule.

In the second example, we are supposing for purposes of discussion that the framers of the Seventh Amendment adopted a rule something like "judges shall not take factual determinations away from the jury on summary judgment" and that the framers of the Seventh Amendment made a mistake (we now believe) in thinking that this would be a sensible way to run a civil justice system in a complex society.  But (without meaning to speak for Professor Solum) I think the New Originalist conclusion is (or should be) that, notwithstanding that mistake, we are still bound by the rule that "judges shall not take factual determinations away from the jury on summary judgment."  The framers' mistake here is not a mistake of application; it is a mistake of rule selection.  And we are bound by the rules they selected, even where we think they were mistaken.

Now Professor Segall is right that this still leaves a lot of ground in which New Originalists can "update" constitutional outcomes (and that is one place where more traditional, Scalia-style originalists will disagree with them).  But it does not mean that New Orignialism collapses into living constitutionalism.  The mistake-in-rule-selection category is one place it does not.

Here's a similar example, taken from a post by Ilya Somin.  Professor Somin acknowledges (at least for purposes of discussion) that the original public meaning of the executive power clause created a unitary executive for matters involving prosecutions.  But, he says, that is a bad rule for modern conditions because the executive has become so much more powerful than the framers imagined (in large part, he says, because of departures from the original design elsewhere).  Thus, he says, we should reject the unitary executive today.

Again, I think this is an example of a mistake in rule selection.  The framers erred (we will assume) in thinking that the unitary executive would be the right design for the future.  But nonetheless, that's the rule they chose.  New originalism's mistake-in-application approach does not allow updating here, because it's not a mistake in application. (To be clear, Professor Somin doesn't make a New Originalist argument, so I'm not quarreling with his reasoning, just saying that a New Originalist should not accept his conclusion).  So again, this is an example where living constitutionalism and New Originalism diverge.


Andre LeDuc: Originalism's Claims and Their Implications
Michael Ramsey

Andre LeDuc (Independent) has posted Originalism's Claims and Their Implications (Arkansas Law Review, Vol. 70, No. 4, 2018) on SSRN.  Here si the abstract:

In this article I explore six of the most fundamental disagreements between originalism and its critics over originalism’s implications. These implications — and the implications of the critics’ alternatives — figure prominently in the arguments advanced in the debate. Reconstructing these arguments in their strongest possible form permits the confusion and misdirection in the debate over originalism to emerge.

First, originalism argues that it best comports with our republican democracy. Judicial review, performed by unelected judges with lifetime appointments, may appear inconsistent with the fundamental principles of our democratic republic. Originalism argues that deference to the original understandings or expectations with respect to the Constitution answers this challenge. The critics offer three principal replies to that claim. First, the originalist strategy of finding the original understanding and intentions with respect to the Constitution is rejected as undoable. Second, even if and to the extent that such intentions and understandings existed, the originalist project of finding meaning is rejected as blinkered and mechanical. Third, Bobbitt argues that the originalist premise is flawed: there is no need to reconcile judicial review and constitutional interpretation with democracy. 

Second, originalism claims that it offers the only neutral method of constitutional interpretation. Critics deny the argument from discretion on a number of grounds. Third, originalism claims to offer a better account of the textuality of the written Constitution. Critics reject the arguments for that claim. Fourth, I examine how originalism limits constitutional change. Critics argue that the originalists fail to provide a plausible account of constitutional flux. Fifth, I assess the claim that originalism is necessary, and therefore any other inconsistent theory of constitutional interpretation is necessarily impossible. The critics rightly deny this singularly bold and implausible claim. Sixth, I examine the claim that originalism can restore the Lost Constitution, and, in so doing, radically change our constitutional law. Critics of originalism, and even some defenders, have questioned whether originalism can accomplish the mission set out for it. This skepticism is misplaced, at least on the terms on which originalism makes its constitutional argument.

When the claims advanced by originalism and by its critics are examined, they generally prove implausible or uninteresting. The debate over originalism has reached a stalemate on these key issues. The exchanges with respect to these claims offer no reason to rehabilitate or even to continue the originalism debate.


New Book: 51 Imperfect Solutions by Judge Jeffrey Sutton
Michael Ramsey

Recently published, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford Univ. Press 2018), by Judge Jeffrey Sutton (6th Circuit).  Here is the book description from Amazon: 

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties. 

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue-and some others as well-through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions. 

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform.


Randy Barnett and Richard Primus Discuss Loving v. Virginia
Michael Ramsey

At SCOTUSblog, Andrew Hamm reports on a program at the Supreme Court Historical Society: Constitutional interpretation and Loving v. Virginia.  It begins: 

“How would each of you have decided Loving v. Virginia?”

Justice Ruth Bader Ginsburg put this question to scholars Richard Primus and Randy Barnett on Tuesday at the Supreme Court, interrupting their debate over modes of constitutional interpretation. According to Jennifer Lowe, the director of programs at the Supreme Court Historical Society, it’s the first time a justice has spoken up at one of these events.

Loving is a 1967 decision in which the Supreme Court held that Virginia’s anti-miscegenation law violated the equal protection clause of the 14th Amendment. Ginsburg has called Loving “one of the most important decisions” in history, “as important, if not more important, than Brown v. Board of Education,” “the one that, more than anything else, was meant to end apartheid in America.”

On Professor Barnett's response: 

For his part, Barnett defended public-meaning originalism, the theory that “the meaning of the text of the Constitution should remain the same until it’s properly changed by amendment.” He contrasted his approach with other theories of originalism based on the framers’ intentions for a particular amendment or on expectations by the public for how an amendment would be applied. Public-meaning originalism requires extensive historical investigation, but not, unlike other types of originalism, “impossible” counter-factual inquiries.

Barnett criticized Primus’ response to Ginsburg’s question. “I think on Richard’s approach, it’s very difficult to know why Loving wouldn’t have come out the other way before Brown.” “Without Brown being decided, then Loving is obviously wrong,” Barnett continued, because “legal practice and precedent said [Virginia’s law] was constitutional and so it must have been constitutional.”

Under Primus’ approach, Barnett suggested, anti-miscegenation laws “only became unconstitutional … 13 years after 1954,” when Brown was decided. But “if Loving is correctly decided, as it clearly is, in my view,” Barnett argued, “it’s because it was unconstitutional the day the 14th Amendment was enacted,” in 1868.

“Just because people back then didn’t think it was irrational” for a state to pass anti-miscegenation laws, Barnett continued, “doesn’t mean that it was rational” under the actual text of the 14th Amendment. “That was true in 1868 and it was true all the way through,” Barnett said; “it’s only people’s opinions about whether it was irrational that have changed, not the Constitution itself.”

And further:

Throughout the debate, Barnett attempted to distinguish between interpretation and application. “People make mistakes in the application phase,” and “it’s entirely possible for judges to be wrong,” even for decades. “Mostly what courts do,” Barnett had explained earlier, “is apply the doctrines they’ve developed in the past to implement the meaning of the text.” “That is your true living Constitution,” Barnett said, employing a term often used in contrast with originalism, “the living Constitution is how doctrines that have been developed to implement the Constitution have evolved over time.” “They’re only to be reconsidered,” he asserted, “if it’s established that they are somehow undercutting or inconsistent with or not faithful to both the letter and the spirit of the original Constitution.”

Barnett called for “an intellectual division of labor” between historians and judges. It’s “not realistic” that judges do the historical research required under public-meaning originalism, which should be accomplished by historians from law schools, history departments and outside the academy. Barnett noted that “in major cases that have been decided in the last five or 10 years that concern the original meaning of the Second Amendment, the right to keep and bear arms, and the original meaning of the recess appointments clause, justices don’t have to originate their own research. They rely on research that’s been done by others.”

(Thanks to Mark Pulliam for the pointer).


Lawrence Solum: Surprising Originalism (with Comments by Eric Segall)
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Surprising Originalism on SSRN.  Here is the abstract:

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks to legitimize conservative outcomes by invoking the prestige of the Founding Fathers. But in fact, the original public meaning of the constitutional text is a mixed bag--leading to many results that would be welcome by conservatives, but others that might be appealing to liberals or progressives. Even sophisticated lawyers and judges may believe that the justifications for originalism can only appeal to conservatives, but, in fact, the case for originalism, rooted in the rule of law and the value of legitimacy, can appeal to Americans with a wide range of political beliefs.

This Article discusses three ways in which originalism is surprising: Surprising theory is the topic of Part I. Surprising implications are explored in Part II. Surprising justifications are the subject of Part III. The Conclusion reflects on the implications of surprising originalism.

At Dorf on Law, Eric Segall has this response: Just the Facts Originalism: No Surprise Here.  It begins:

Professor Larry Solum just posted an article on SSRN titled “Surprising Originalism.” ...

In this piece, which was the basis of a lecture at the University of Akron, Solum repeats much of what he has said before about originalism and claims that much of the essay might surprise those not closely following recent scholarly debates over originalism. The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism.

And in conclusion:

... In other words, Solum’s brand of originalism, contrary to his two major assumptions, leads to a state of affairs where the meaning of the text is not fixed at ratification (as applied to hard facts), and we are obviously not bound by what the people at the time thought about how that meaning applied to practical legal problems. In other words, originalism and non-originalism end up in exactly the same place in the context of real life litigated cases.

Solum argues that originalism done correctly is neither liberal nor conservative and that “there is something for everyone, but everything for no one.” As an example, he argues that the Court’s lax rules on summary judgment whereby judges dismiss civil cases before they get to the jury might be inconsistent with the original public meaning of the Seventh Amendment, which provides that in “Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” But the people who ratified this provision lived in a much less litigious world than we have today. They may well have been under the factual misunderstanding that our judicial system can tolerate the time it would take to try all civil cases without the current rules for summary judgment. Or not. The point is that if we allow judges to revisit the factual assumptions upon which the constitutional text was based, then we are in effect changing the meaning of that text, something judges do on a daily basis. If this is originalism, then everything is originalism.

I don’t know any legal scholar (except perhaps Judge Posner) who believes that judges may ignore clear constitutional text or the universally understood historical context surrounding that text. No one thinks judges can simply disregard the Constitution's broad principles. Yet, most legal scholars, including Solum, believe that even though judges are bound by the vague principles set forth in the Constitution, the application of those principles to new factual contexts requires judgments based on judicial evaluations of today’s world, not the facts of 1787 or 1868. To repeat, I understand that Solum and other like-minded originalists want to say that meaning is "fixed" even as applications change over time. I am confident they sincerely believe this distinction is important. But is is not important because virtually all of the conflict that arises from constitutional litigation involves application not meaning. That is why I say that for all practical purposes, meaning does change over time, and one of Solum's premises about originalism is inconsistent with how he actually suggests judges decide real cases.


Jesse Merriam on Originalism and Libertarianism [Updated:McGInnis and Rappaport Respond]
Michael Ramsey

At Liberty Law Blog, Jesse Merriam (Loyola University Maryland, Political Science) : Originalism’s Legal Turn as a Libertarian Turn.  Here is the introduction:

Over the last few weeks, the Liberty Forum has featured several important and insightful essays on originalism, two of which I would like to explore here—partly as a way of seeking to understand Justice Gorsuch’s decision to concur with the four liberal Justices in an important immigration case, Sessions v. Dimaya (2018).

The first essay, by John McGinnis and Mike Rappaport, explored New Originalism’s so-called “legal turn.” As a result of this turn, law professors and courts have become the dominant sources of original public meaning, often prevailing over other sources (such as majority will and historical analysis) in what New Originalists dub the “construction zone.” In contrast with the highly circumscribed “interpretation zone,” the construction zone permits a wide range of disagreement over how to discern the Constitution’s original public meaning.

The second essay, a response by Ilan Wurman, argued that the transition from Old Originalism (focusing on “original intent”) to New Originalism (focusing on “original public meaning”) is largely co-extensive with the legal turn. Although Wurman expressed doubt in that essay as to whether legal meaning should supplant original public meaning when the two conflict with one another, Wurman claimed that this is not a pressing issue in practice. This is because original public meaning is often times sufficiently capacious to be consistent with whatever lawyers and judges acting in “good faith” hold it to be as a matter of law.

As a political scientist and legal theorist, rather than a law professor, I don’t consider it within my domain to engage the normative claims in these two essays. To be sure, I have my doubts about whether the legal turn is constitutionally and politically desirable. But such evaluations are not within my expertise.

I do wish, however, to engage their descriptive claims. As someone who has researched and written extensively on the legal conservative movement, I can affirm that McGinnis and Rappaport are indeed correct in observing the “legalization” of originalist discourse, and Wurman is also on solid ground in claiming that the New Originalism transition from “original intent” to “original public meaning” coincided with this legal turn.

But what these law professors miss—and what leads me to write this essay—is that originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell, a story about how legal scholars and institutions have consolidated control over originalism discourse and used this control to lead originalism away from a conservative and toward a libertarian agenda.

(Thanks to Mark Pulliam for the pointer).

I'm interested to hear what Professors McGinnis and Rappaport think of this commentary on their essay.  I agree  with the basic proposition that originalism has taken on a more libertarian tone over the last two decades, but I think the commentary is problematic in a number of respects.

UPDATE:  Professors McGinnis and Rappaport now have a response posted at Liberty Law Blog: The Legal Turn is not a Libertarian Turn.  It begins:

We are grateful that Jesse Merriam acknowledges the importance of the legal turn and our part in creating it. But we believe that he is mistaken in two important matters. First, the legal turn is not necessarily a matter of construction as opposed to interpretation. Second, the legal turn does not necessarily have a libertarian valence and indeed is likely to curb ideological bias.

And further:

But at least some versions of the legal turn are not about construction at all, but about interpretation. (Parenthetically, most originalists distinguish between public meaning, which is a matter of interpretation, and construction, concepts which Professor Merriam appears to conflate). Indeed, our own theory of original methods originalism, which we argue began the legal turn, asserts that the Constitution is written in the language of the law. Thus, that language, both legal terms and legal interpretive rules, constitute the Constitution’s meaning, accessible through interpretation. The legal turn, as represented by original methods originalism, does not fill the construction zone, but narrows, and perhaps even eliminates it.

I agree, and I would add this point as well:  Professor Merriam wrongly identifies original public meaning with New Originalism.  It's true that most New Originalists (I'm thinking here of Larry Solum, Randy Barnett, Keith Whittington and their intellectual allies) adopt an original public meaning approach.  But original public meaning is not a defining characteristic of their New Originalism.  Rather, it dates at least to Justice Scalia's famous speech in 1986.  (Reproduced at pp., 180-187 of the great collection of Scalia speeches Scalia Speaks, edited by Christopher Scalia and Ed Whelan.)  It's "new" in the sense that it is different from the "old" pre-1986 approaches identified (as Professor Merriam rightly says) with scholars such as Raoul Berger.  But that evolution is entirely different from the much more recent development of the approach called New Originalism, whose principal characteristics  I would describe as a focus on the interpretation/construction distinction (and generally a broad view of construction) plus a deemphasis of the original expected results and post-ratification practices as method of determining meaning.  Unlike original public meaning, these ideas were not part of Justice Scalia's approach and are not part of (or at least are not a principal focus of) many modern scholars who adopt original public meaning.