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07/02/2018

Saul Cornell’s Unfair Criticism of Originalists and Mike Ramsey
Mike Rappaport

Originalist critic Saul Cornell has written a new blog post attacking originalism. Cornell’s principal claim in this piece is that originalists misunderstand anti-originalist criticisms of originalism and his focus is my friend and colleague, Mike Ramsey. While Ramsey has ably defended himself, I wanted to discuss a couple of claims that Cornell makes: his claim that “Originalist ‘scholarship’ is often indistinguishable from an amicus brief” and his suggestion that originalist scholarship by right wing scholars is basically attempting to promote a right wing agenda, including one exalting presidential power.

Cornell’s amicus brief claim is similar to the frequent assertion made by historians that originalist scholars rely on so called “law office history.” If the repetition of a claim is proof of the claim, then these historians would have a strong case. But alas they do not.

This is not to say that result oriented history is never relied upon. There are lawyers and poor scholars who may be subject to this criticism, just as there are historians who are. The question is whether the leading scholars are subject to the criticism.

As a way of responding to Cornell’s claim about amicus briefs, I thought I would use Mike Ramsey’s own scholarship to show that law professors do important originalist scholarship and that this scholarship does not always promote a right wing agenda or the powers of the President.

For many years, scholars claimed that the Congress, but not the President, could initiate wars. But those scholars could not explain how the Constitution’s language – which gave Congress only the power to “declare war” – achieved that result.

In this setting, Berkeley Law Professor John Yoo wrote an article that argued that the Constitution’s original meaning allowed the President to initiate wars based on his executive power. Yoo argued that Congress’s power to declare war merely meant that it had the power to issue a declaration of war. Since many wars at the time of the Constitution had not been declared, the President could initiate undeclared wars. While Yoo’s argument seemed to be inconsistent with the practice of the political branches in the early years of the Constitution, it did seem to account for the constitutional text.

But then in a great article, Mike Ramsey explained how the Congress’s power to declare war prevented the President from initiating wars. Ramsey showed that at the time of the Constitution people believed that someone could declare wars by “words or action.” Thus, if a President ordered an attack on another country, he would be declaring war by action. But the Constitution gave only Congress the power to declare war. Ramsey thus showed how the constitutional text fit with what we otherwise know about the history.

What is more, Ramsey’s article did not defend a “conservative” position on executive power, but a “liberal” one, denying the President the power to initiate a war. (Put aside that a “conservative” position on initiating wars has been followed by a host of Democratic Presidents such as Clinton and Obama.)

This is an example of great originalist scholarship – a pathbreaking enhancement of our understanding of the meaning of the Constitution, which has been confirmed and built upon by other scholarship.  Yet, from Cornell’s various writings, one would be shocked to discover that originalist scholarship of this type is being produced, let alone by law professor Mike Ramsey.