Eric Segall on Originalism and History
Michael Ramsey

Ar Dorf on Law, Eric Segall: Originalism Without History: A Response to Professor Randy Barnett (responding to Professor Barnett's comments on the Kvanaugh hearings, noted here).  From the introduction:

At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"

These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.

Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.

Barnett's response was different:

[J]udges should not be doing the historical research that originalism requires... this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.

Professor Segall objects: 

This is all just a little surreal. Are constitutional law scholars supposed to ascertain the legal meanings of words used in 1787 without immersing themselves into the historical practices of the time? More importantly, "it is originalism’s reliance on the past that makes it authoritatively attractive to the bench and bar." Imagine if Justice Thomas were to announce that "originalism isn't really about historical accuracy which is why my law clerks and I rely on it."

The reality, of course, is that originalism as practiced by judges, lawyers, and law professors is not and cannot be about gleaning historical meaning because 1) most are not trained to do so, 2) the constitutional text is too vague and its history to contested to justify firm or even persuasive conclusions about most modern day problems, 3) the overlay of hundreds of years of Court decisions has changed the meaning or the application of the imprecise text that leads to real cases; and 4) lawyers are trained as advocates, not impartial recounters of historical meanings or events.

If a case happens to implicate clear history then of course the original meaning of the text should be one factor in judicial consideration of the issues. But these cases are few and far between. Moreover, the history has to be accurate all things considered, not just in the parsing of words. As Patrick Charles has observed, "by accepting the premise that originalists only need to be familiar with a 'subspecialty of history' or the 'investigation of legal meanings,' originalism fails by facilitating mythmaking more so than fact-finding."

Indeed. Originalism is substantially myth, or maybe more accurately, an article of faith.

Unsurprisingly (since my scholarship is mostly about investigating the historical meaning of parts of the Constitution) I lean toward Professor Barnett's view -- though at times I think the inquiry is quite difficult, and that legal scholars can and should learn much from historical accounts.

It's important to see, however, that Professor Segall's attack (and others like it) is not really an attack on originalism but an attack on conventional constitutional interpretation.  As non-originalist Professor Mitchell Berman of the University of Pennsylvania has written (in The Challenge of Originalism, p. 250), "Virtually nobody denies that the original meaning of a constitutional provision is always relevant to the interpretive task, and few theories deny that it is frequently a weighty consideration." Or to quote Berkeley Law Professor Amanda Tyler, from her magnificent history of the habeas suspension clause, "Although legal jurists and scholars argue over whether history should be the decisive factor in ascertaining the meaning and application of the Constitution, no one seriously questions that history is deeply relevant to the debate." (Habeas Corpus in Wartime, pp. 8-9).  Multiple contemporary controversies, from (to pick one area making recent headlines) the President's duties under the emoluments clause to the President's control over investigation and prosecution to the meaning of "high Crimes and Misdemeanors" in the impeachment clause to the President's power have been and are being debated in large part in terms of the original meaning of the relevant clauses.  Countless essays, articles and books have been written regarding the historical meaning of constitutional clauses or of the Constitution more broadly -- not just by originalists but by people from all parts of the political spectrum, by people representing a wide range of interpretive theories, and by people who are simply interested in the historical answers.

What distinguishes originalists from conventional legal scholars is not that they think the Constitution's original meaning can be usefully investigated by legal scholars, advocates and judges.  It is that they think the Constitution's original meaning, if satisfactorily identified, should be decisive (or at least, decisive absent directly contrary precedent) in modern adjudication.  Professors Tyler and Berman both make this point; as Professor Berman writes (p. 250):  "What makes originalism so controversial is precisely the position it takes on what I have called in other work the dimension of interpretive strength.  Non-originalists do not deny that the original meaning constitutes a reason, possibly even a weighty reason, in favor of a given contemporary interpretation; they only deny the originalist contention that original meaning (or the like) is a conclusive or exclusive reason to a adopt a particular interpretation."

In sum, Professor Segall's objection is property directed not at originalism but at the wider legal culture of viewing the Constitution at least in part through a historical lens.


Randy Barnett on Judge Kavanaugh on Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has excerpts from the Kavanaugh hearings in which Judge Kavanaugh discusses originalism with various Senators including Mike Lee, Ted Cruz and John Kennedy.

Kavanaugh Testimony, Part 1: On Originalism.  Here's a bit from Judge Kavanaugh on intent and public meaning, and the originalist case for Brown v. Board of Education:

[Judge Kavanaugh, in response to a question by Senator Lee]:  Now, it's very careful when you talk about originalism to understand that people are hearing different things sometimes. So, Justice Kagan, at her confirmation hearing, said we're all originalists now, which was her comment. By that, she meant the precise text of the Constitution matters, and, by that, the original public meaning—of course, informed by history and tradition and precedent. Those matter, as well. There's a different conception that some people used to have of originalism, which was original intent. In other words, what did some people subjectively intend the text to mean, and that has fallen out of the analysis because, for example, let's just take the 14th Amendment's equal protection clause. It says right in the text "equal protection" – equal means equal.

As the Supreme Court said in Strauder, what is that but the law shall be the same for the black and the white – that's Brownv. Board, which focuses on the text. But there were some racist members of Congress who didn't think it should apply in that way to certain aspects of public life. But if you're paying attention to the text, you don't take account of those subjective intentions, nor is it proper as a general proposition to take account of the subjective intentions. They could be evidence in certain cases—the First Amendment, for example—of the meaning of the words.

[…] You don't follow the subjective intention. So, original public meaning originalism—what I have referred to as constitutional textualism, and what Senator Cruz referred to as constitutionalism—I think those are all referring to the same things, which is the words of the Constitution matter. Of course, as I've said repeatedly, you also look at the history. You look at the tradition. Federalist 37 tells us to look at the liquidation of the meaning by historical practice over time. And then you look at precedent, which is woven into Article III, as I said, in Federalist 78.

Professor Barnett comments:   "This statement indicates that Kavanaugh is well aware of the modern approach to originalism that has been developed over the past 20 years: Original Public Meaning Originalism, which he was at pains to distinguish from original framers intent originalism."

Kavanaugh Testimony, Part 2: Colloquy with Senator Kennedy.  Senator Kennedy poses some interesting and somewhat skeptical questions about originalism, leading among other things to this exchange:


[I]f you look at the Heller case—and I'm talking about the DC v. Heller by the US Supreme Court—it wasn't a balancing case. You made that point clear at the court of appeal level. It was a text, history and tradition case. And Justice Scalia wrote the majority opinion. Justice Stevens dissented, and they both took an originalist approach. And I went back and looked. Scalia, this is what he relied on: founding era dictionaries, founding era treatises, he looked at English laws, American colonial laws, British and American historical documents, colonial era state constitutions – he looked at post-enactment commentary on the Second Amendment. And Justice Stevens, also using an originalist approach, looked at the same documents and then he added, he relied on linguistic professors, an 18th century treatise on synonymous words, and a different edition of the colonial era dictionary that Justice Scalia used. Pretty impressive. Here's my question: Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?


Well, the Heller case was one of the rare cases where the Supreme Court was deciding the meaning of a constitutional provision without the benefit of much, if any, relevant precedent. On most of the constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation that Justice Scalia and Justice Stevens did in that case because it's been done before. The reason, I think, why the Second Amendment posed a challenge in that case, in terms of figuring it out, is the prefatory clause in the Second Amendment, which the question was: Did that define the scope of the right indicated afterwards – the right of the people to keep and bear arms shall not be infringed? Or did the prefatory clause merely state a purpose for which the right was ratified, and, therefore, you read the right as written: the right to keep and bear arms shall not be infringed. To figure out what the prefatory clause meant, you had to figure out, as a general proposition, how legal documents at the time used prefatory clauses, and what the purposes of those were, and that required a lot of historical excavation by the two justices who had the competing positions.

Professor Barnett comments:   

Unlike the Democratic senators, Senator Kennedy was able to marshal somewhat of a critique of Judge Kavanaugh's originalism. If Kennedy, a supporter of the nominee can manage this, one would think that Democratic Senators who object to Kavanaugh's originalism could do the same. But, for whatever reason, they did not even try. Unfortunately, Kavanaugh did not directly respond to Kennedy's challenge of how judges can be historians, asserting instead the rarity with which they may have to do so given the existence of precedent. [

Professor Barnett continues with his own responses whihc seem basically right to me.


Our Bipartisan Due Process Clause
Chris Green

I have posted to SSRN Our Bipartisan Due Process Clause, prepared as part of the big IJ/Law & Liberty Center Fourteenth Amendment symposium at Scalia/Mason this Friday. Here is the abstract:

What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length—but in 1862, rather than 1866.

Download it while it's still got the edgy "under review" watermark--and anyone in the DC area, please stop by on Friday to hassle me about it! Those paying close attention to the Timbs v. Indiana excessive-fines incorporation case will be particularly interested in page 46 footnote 248.

Cato Institute Symposium on Federal Immigration Power
Michael Ramsey

At Cato Unbound, a symposium on federal immigration power, featuring Ilya Somin with the lead article and responses (to come) by Gabriel Chen and John Eastman.  From Professor Somin:

Immigration has become one of the most controversial legal and policy issues on the national agenda, especially since Donald Trump won the presidency on a highly restrictionist platform and began to implement his anti-immigration agenda, seeking to drastically reduce both legal and illegal migration.

Legal debates over immigration have also flourished, such as the recent litigation over Trump’s travel ban order, which the Supreme Court narrowly upheld against claims that it was the result of unconstitutional discrimination on the basis of religion. But few have even considered the possibility that the federal government lacks a general power to restrict immigration to begin with. If such power is absent, many federal immigration restrictions are unconstitutional regardless of whether they might violate individual rights.

And absent it is. If you peruse the list of federal powers in Articles I and II of the Constitution, a general power to restrict immigration is notable by its absence. It just simply is not there. That is not because the Framers only included a small number of very important powers and then left the rest to implication. To the contrary, Article I contains a long and detailed list of congressional powers, including comparatively minor ones, such as the authority to establish “post roads” and “fix the Standards of Weights and Measures.” If the Framers had wanted to give the federal government so massively important a power as the authority to ban immigration, one would think they would have clearly said so.

Legal theorists have developed a vast cottage industry of arguments claiming that the power over immigration can be implied from other authorities given the federal government, or that it is somehow present without being enumerated at all. But these efforts are ultimately unavailing.

The text and the original meaning of the Constitution undercut the notion that the federal government has general authority to restrict immigration, in the sense of having the power to forbid movement to the United States simply on the basis that a would-be immigrant was born abroad and is not a U.S. citizen. The doctrine that Congress has broad “plenary” power over immigration is long established and – today – rarely questioned. But it is actually an emperor walking around without clothes, or at least far more scantily clad than most assume.

(Via Volokh Conspiracy).


Michael Stokes Paulsen on the Justification for Originalism
Michael Ramsey

At NRO, Michael Stokes Paulsen (St. Thomas): Originalism: A Logical Necessity.  It begins:

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language. 

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

But the strongest argument for Originalism is simply that it is the method prescribed by the Constitution itself. It is the only method consistent with taking the Constitution on its own terms, as a binding, written document intended to function as supreme law. It is the only method consistent with the terms on which the Constitution claims to be authoritative. It is the only method consistent with the very idea of written constitutionalism. If what one is doing is interpreting a written constitution intended to serve as governing law, as opposed to engaging in some other project, one must take that constitution (literally) on its own terms.


Mark Pulliam on Peter Wallison's New Book on the Administrative State
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Dismantling the Administrative State (discussing Peter J. Wallison’s "easily-digestible monograph" Judicial Fortitude: The Last Chance to Rein in the Administrative State (Encounter Books, forthcoming 2018)).  From the introduction:

A remarkable movement is underway in the legal world, unlike any other during my lifetime. Growing skepticism regarding the conceptual underpinnings of the “administrative state”—the alphabet soup of powerful administrative agencies that dominate Beltway policymaking—portends imminent retrenchment of well-established understandings (and judicial precedents) that enabled the federal Leviathan. Doctrinal reversals of a significant nature are rare, particularly when they reflect conservative initiatives and overturn the foundations of Progressive governance. Yet we are on the verge of such a dramatic shift.

For half a century—dating to New Deal-era reliance on administrative agencies to “fix” the ostensibly broken machinery of democracy and free markets—it was assumed that “administrative law” is an essential feature of modern life. Specialized expertise by unelected bureaucrats was the “secret sauce” that would remedy the purportedly sclerotic—and old-fashioned—system of checks and balances contemplated by the Constitution. Justice Felix Frankfurter expressed the consensus view when he described administrative law as an essential form of “governmental supervision” that could not be effectively exercised through “self-executing legislation” or the judicial process.

Indeed, there was widespread bipartisan consensus among both politicians and legal scholars that what we now call the administrative state was a good thing—or at least necessary and inevitable. Chevron v. NRDC, the 1984 Supreme Court decision establishing judicial deference to administrative agency interpretation of federal statutes, was the high-water mark of our infatuation with administrative law.


In recent decades, however, the tide of opinion has turned. Some Supreme Court justices (led by Clarence Thomas) have begun to question the reasoning—and even the validity—of once-settled administrative law precedents on originalist grounds. Instead of arguing over divisive issues such as “judicial engagement,” conservative and libertarian legal scholars have united to criticize Chevron and to point out that many features of modern administrative law contravene the separation of powers enshrined in the Constitution (not to mention the plain language of the 1946 Administrative Procedure Act).

And from the discussion of the Wallison book:

Wallison is a knowledgeable Washington, D.C. insider, having served as White House counsel to President Ronald Reagan and general counsel to the U.S. Treasury Department in the Reagan administration.  He now serves as co-director of the American Enterprise Institute’s program on financial policy studies. In Judicial Fortitude, Wallison trods a path previously explored by other scholars, but he manages to find some fresh insights. What makes Wallison’s book notable—and valuable—is that it is relatively brief (166 pages of text), well-written, and accessible to readers who are not administrative law nerds.

Wallison takes the originalist critique of the administrative state beyond merely questioning Chevron; he argues (in chapter 6) that the moribund “nondelegation doctrine” needs to be revived. This compelling analysis is the highlight of the book, a clear demonstration that resuscitating lost wisdom is just as important as trail-blazing scholarship. It is one thing to trim the sails of administrative agencies by making their interpretations (of both statutes and regulations) subject to meaningful judicial review. Article I of the Constitution expressly grants “all legislative powers” to the Congress. Therefore, the threshold question is whether it is constitutional for administrative agencies that are part of the executive branch to promulgate an extraordinary volume of regulations (numbering in the thousands each year) that represent major policy decisions and are the functional equivalent of legislation.

In conclusion:

Wallison contends that the Court’s abandonment of the constitutional function intended by the Framers represents a lack of the judicial “fortitude” that Alexander Hamilton felt was necessary for courts to serve as “faithful guardians of the Constitution.” [5] The Court’s relinquishment of its proper role, Wallison argues, has empowered the administrative state and allowed Congress to cede an unwarranted amount of power to the executive branch.  Notwithstanding a general lack of scholarly enthusiasm for reviving the nondelegation doctrine, Wallison detects “stirrings” at the Supreme Court, counting Chief Justice Roberts and Justices Thomas and Alito as possibly supporting a return to pre-New Deal precedents.

This would not constitute “judicial activism” because preserving the structure of the Constitution is, as Marshall wrote in Marbury v. Madison, “emphatically the province and duty” of the judiciary. The Court’s failure to enforce the nondelegation doctrine constitutes abdication, not restraint.

With President Trump’s appointment of Justice Neil Gorsuch and the nomination of Judge Brett Kavanaugh, the Supreme Court may soon have the votes necessary to change directions. Judicial Fortitude boldly points the way.

And here is the Amazon book description for Judicial Fortitude:

In this book, Peter J. Wallison argues that the administrative agencies of the executive branch have gradually taken over the legislative role of Congress, resulting in what many call the administrative state. The judiciary bears the major responsibility for this development because it has failed to carry out its primary constitutional responsibility: to enforce the constitutional separation of powers by ensuring that the elected branches of government—the legislative and the executive—remain independent and separate from one another. Since 1937, and especially with the Chevron deference adopted by the Supreme Court in 1984, the judiciary has abandoned this role. It has allowed Congress to delegate lawmaking authorities to the administrative agencies of the executive branch and given these agencies great latitude in interpreting their statutory authorities. Unelected officials of the administrative state have thus been enabled to make decisions for the American people that, in a democracy, should only be made by Congress. The consequences have been grave: unnecessary regulation has imposed major costs on the U.S. economy, the constitutional separation of powers has been compromised, and unabated agency rulemaking has created a significant threat that Americans will one day question the legitimacy of their own government. To address these concerns, Wallison argues that the courts must return to the role the Framers expected them to fulfill.


John McGinnis on Originalist Interpretation
Michael Ramsey

At Liberty Law Blog, John McGinnis has a series of posts on methods of originalist interpretation:

Originalism Encompasses Text and Structure

“Democracy” Cannot Unlock the Meaning of the Constitution

How Originalism Addresses Consequences

From the beginning of the initial post:

I had the pleasure of being on panel with Pamela Karlan of Stanford Law School at the Eighth Circuit Judicial conference. There she set forth a view of the “modalities” of constitutional interpretation, arguing that judges should consider a variety of factors in interpreting our fundamental law. She opposed originalism. Indeed, original meaning was not even included as a factor, as I remember.

We did not have a chance to respond to one another directly, because the audience was given the time after our talks to ask questions. But I would have said that originalism of the best kind encompasses modalities that help fix meaning and rightly does not include those that don’t. In a series of posts, I will describe how originalism responds to each of Professor Karlan’s various “modalities.” 

The third post is likely the most important and controversial.  It begins:

In the last two posts, I have argued that originalism can comprehend many of the so-called modalities of constitutional interpretation. That is, while some professors, like Pamela Karlan, argue that interpretation can and should be based on many factors, like text, structure, and consequences, originalism takes account of these as well. One major advantage of originalism as opposed to these modalities is that the interpretive legal rules that were applicable at the time of the Constitution discipline the manner of using these factors to arrive at the meaning of our fundamental law. Interpretive modalities as used by Karlan and others tend to make constitutional interpretation a grab bag of factors where the judge picks out whatever factor will lead to a result that accords with his intuition about justice.

The hardest question for the relation of originalism and the modalities is that of consequences to original meaning. My tentative view is that the interpretive rules of the time may well permit the use of consequential reasoning in limited circumstances. Thus, when the original meaning of the text is otherwise unclear and when the consideration of consequences are those that would help determine whether an interpretation  advances the provision’s purpose and values, this aid to interpretation should be entertained.

I agree with Eric Segall that this approach carries the danger of watering down originalism to the point it's hard to distinguish from living constitutionalism (see his comment on Monday's post here).  But Professor McGinnis has arguments for how it can be contained.


Kent Barnett: Rethinking Murray's Lessee
Michael Ramsey

Kent H. Barnett (University of Georgia School of Law) has posted Due Process for Article III—Rethinking Murray's Lessee (Geo. Mason L. Rev. __ (2019)) on SSRN. Here is the abstract:

The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private rights,” i.e., disputes under state or common law between private parties. In other words, despite Article III’s raison d’être, Article III is less likely to apply when the government is a party seeking to advance interests under federal law, and more likely to apply when the government has little to no interest in the controversy. 

This essay for the George Mason Law Review’s “Agency Adjudication and the Rule of Law” symposium argues that the ever-expanding, shape-shifting public-rights exception to Article III—as it has developed from abstruse passages in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856)—was neither inevitable nor consonant with Article III purposes or separation-of-powers underpinnings of Due Process. The public-rights exception is best justified, in general, as extending only to those matters that due process does not implicate (and thus those that Congress could have decided on its own). Accordingly, the public-rights exception’s domain should have an inverse relationship with Due Process’s domain. The essay concludes by considering whether Article III should track traditional notions of due process or modern ones.


Originalism and the Kavanaugh Hearings [Updated]
Michael Ramsey

At City Journal, John McGinnis has this assessment:

Republican senators repeatedly invited Kavanaugh to nail his colors to textualism in statutory interpretation and public-meaning originalism in constitutional interpretation. He happily did so. The Democrats notably did not challenge him on these responses. Thus, the most important message from the hearings on constitutional law—as opposed to political theater—is that formal approaches to law, textualism, and originalism have become mainstream legal philosophies outside of the legal academy.

Agreed.  Here is another indication:  During the Gorsuch hearings, commentators launched broad and harsh attacks on originalism, trying to paint it as extreme and unworkable (here's a notable example).  Its defenders responded, including in Larry Solum's testimony to the Senate committee.  The hearings ended up generating a sustained and fairly sophisticated debate over originalism.  In the Kavanaugh hearings, opposition commentary mostly took a different tack.  Judge Kavanaugh is not really an originalist, it was said (even though Judge Kavanaugh said he is).  More importantly, originalism (it was widely argued) is just a cover for conservative legal outcomes.  The turn away from the merits of originalism was so marked that I abandoned my proposed series correcting common errors about originalism in popular commentary -- there weren't enough errors because originalism wasn't widely under attack.  And even when it was, the attack was mostly a side point in the course of making the point about conservative results.  This commentary by Max Boot is typical, beginning: "Aside possibly from a few members of the Federalist Society, which helped to put together President Trump’s master list of court nominees, few people, including the president himself, are interested in judicial philosophy. They’re interested in political outcomes."  

UPDATE:  As a further example, Eric Segall in today's New York Times: Does Originalism Matter Anymore?

(Thanks to Michael J. Perry for the pointer).

I conclude that the attacks on originalism during the Gorsuch hearings were seen as failures -- in the sense that they failed to persuasively portray originalism as outside the mainstream.  Thus they were not widely repeated during the Kavanaugh hearings; the new charge, one might say, became that Kavanaugh isn't originalist enough (because he is too devoted to conservative outcomes).  Whether or not that new charge is true, the shift confirms Professor McGinnis' reaction.

FURTHER UPDATE:  Eric Segall comments:

The reason originalism is no longer seen outside the mainstream is that sophisticated observers believe that the doctrine has been watered down by Justices Scalia and Thomas so much, and now by Kavanaugh's and McGinnis' insistence that "consequences" can be taken into account by "Originalist judges" that outside the writings of a few scholars, such as Ramsey, Rappaport and Paulsen, there is no longer any difference on the ground between originalists and non-originalists.


Samuel L. Bray: Equity and the Seventh Amendment
Michael Ramsey

Samuel L. Bray (Notre Dame Law School) has posted Equity and the Seventh Amendment on SSRN.  Here is the abstract:

This Article reconsiders the scope of the jury trial right under the Seventh Amendment. It argues that a more historically sound and judicially administrable test can be formulated. The jury trial right should be presumed, with three categorical equitable exceptions: suits in equity’s exclusive jurisdiction (e.g., fiduciary law), suits for equitable remedies (e.g., injunction), and suits that make use of equitable case-aggregating devices (e.g., class actions). This argument has implications for the scope of the jury trial right and for the scope of equity in American law.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week."