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9 posts from October 2010


Originalism on the Web
Mike Rappaport

Pamela S. Karlan on In the Beginning

Jill Greenfield on John Manning: the Separation of Powers as Ordinary Interpretation

Originalism in the Blogs
Mike Rappaport

Edward C. Walterscheid on Originalism and the IP Clause: A Commentary on Professor Oliar’s “New Reading”

Luke Freedman on Two Strands of Originalism.

The Eleventh Amendment and the Nature of the Union
Mike Rappaport

Bradford R. Clark (George Washington University Law School) has posted The Eleventh Amendment and the Nature of the Union (Harvard Law Review, Vol. 123, No. 8, p. 1817, 2010) on SSRN. Here is the abstract:

Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either under-inclusive, over-inclusive, or an incoherent compromise because it prohibits federal courts from hearing "any suit" against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context. In particular, the Articles of Confederation empowered Congress to require states to supply men, money, and supplies, but gave Congress no power to enforce its own commands. Prominent Founders initially argued that the only way to fix the Articles was to give Congress coercive power over states. But the Convention, and the ratifiers, ultimately rejected this idea because they feared that the introduction of such power would lead to a civil war. To avoid this danger, the Founders designed the Constitution to give Congress legislative power over individuals rather than states. This novel approach eliminated the need for coercive power over states, and provided Federalists with a key argument for adopting the Constitution rather than amending the Articles. Anti-federalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III — authorizing suits "between" states and out-of-state citizens — could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Anti-federalists quickly joined forces to restore their preferred construction of Article III. In adopting the Eleventh Amendment, they saw no anomaly in prohibiting “any suit” against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment.


Originalism on the Web
Mike Rappaport

Conor P. Williams and John Halpin on: The Progressivism of America’s Founding

David Fontana reviews: Making Our Democracy Work: A Judge’s View by Stephen Breyer

Tony Mauro on:  Justice Breyer on Originalism, the Media and the Court


Originalism on the Web
Mike Rappaport

Michael Klarman on A Skeptical View of Constitutional Worship.

Robert Barnes on In Book, More of Breyer's Dissents on Originalism.


Incredible Credibility and the Original Meaning of the Fourth Amendment
Mike Rappaport

Jonathan S. Keim (Georgetown University Law Center) has posted Incredible Credibility: Administrative Detention of Food Articles, Probable Cause, and the Original Meaning of the Fourth Amendment (Georgetown Journal of Law & Public Policy, Vol. 6, No. 1, 2008) on SSRN. Here is the abstract:

Under 2002 revisions to the Food, Drug and Cosmetic Act, federal authorities have the power to administratively detain a food article in interstate commerce when a food inspector has "credible evidence or information" that the article poses a risk. Though the detention is only temporary, and provides a method to take immediate action without a full judicial hearing, this evidentiary standard is apparently quite slim. This article argues that the original meaning of the Fourth Amendment imposes a probable cause requirement before the government can seize property, even for a short time. Because the phrase "credible evidence or information" is lower than probable cause, the administrative detention evidentiary standard should be construed as probable cause, thus protecting property from underjustified government intrusion.

Recognition: A Case Study on the Original Understanding of Executive Power
Mike Rappaport

Robert Reinsteinhas (Temple University - James E. Beasley School of Law) has posted Recognition: A Case Study on the Original Understanding of Executive Power (Temple University Legal Studies Research Paper) on SSRN. Here is the abstract:

This article focuses on a question never before examined in the literature: what evidence is there that those who participated in the drafting and ratification of the Constitution understood that a plenary recognition power was being vested in the president?

For at least a century, presidents have used the recognition power as an important tool in conducting and determining the content of the nation’s foreign policy. Although most exercises of presidential power have generated heated disputes between pro-presidentialist and pro-congressionalist scholars, there is little dispute about the recognition power. A string of Supreme Court decisions, dating back at least to 1937, states that recognition is a plenary power of the President; and scholars have both influenced and fallen into line with this view. Given this long historical stamp of approval, it may seem predictable that there has been little written questioning whether there is an originalist basis for a plenary executive recognition power.

Yet the Constitution does not mention recognition, and it is easier to assert the existence of Executive power than to identify its source. After dismissing textualist arguments for the recognition power, this Article proceeds to a detailed originalist inquiry. Obtaining recognition from and establishing diplomatic relations with European countries were central aims of Congress during the War of Independence and Confederation period. Given this historical experience, which demonstrated the importance and dangers of the recognition power, one would expect that this subject would have been a matter of special attention in the Constitutional Convention and ratification debates. Yet, although the Anti-Federalists attacked, and the Federalists defended, every power that was thought to be vested in the President by the Constitution, there is no discussion, in all of the voluminous records that we possess, of either of the receive ambassadors or executive vesting clauses as being a source of executive power – and no discussion at all of the power to recognize foreign states or governments.

The conclusion of this paper is that there is no originalist justification for a plenary executive recognition power. On the other hand, the article proposes an explanation for the founders’ silence that also precludes a firm conclusion that this power was deliberately denied to the President. The founders left a void in the Constitution.

The Fourteenth Amendment: What Norms Did 'We the People' Establish?
Mike Rappaport

Michael J. Perry (Emory University School of Law) has posted The Fourteenth Amendment: What Norms Did 'We the People' Establish? on SSRN. Here is the abstract:

    Unlike, for example, Michael Kent Curtis, whose colleague I was privileged to be for several years, I am not a legal historian. I am, however, a connoisseur of legal history - specifically, of legal history concerning the “original” meaning of the Fourteenth Amendment. So I was happy to attend, just last month (September 2010), a workshop at the University of San Diego School of Law - sponsored by USD Law’s Center for the Study of Originalism - at which Christopher Green of the University of Mississippi School of Law and Bryan Wildenthal of the Thomas Jefferson School of Law discussed Green's ongoing, important work on the original meaning of the Fourteenth Amendment’s privileges or immunities clause. Wildenthal is himself doing important work on that subject.

    At the end of the workshop, I concluded that what I had to say a dozen years ago about such work--and about the original meaning of the due process, equal protection, and privileges or immunities clauses of the Fourteenth Amendment - has stood the test of time. What I had to say, I said in my book *We the People: The Fourteenth Amendment and the Supreme Court* (Oxford, 1999), which I wrote while Michael Curtis and I were colleagues and could, much to my benefit, bat some of the important issues back and forth. This SSRN post consists of the relevant chapter of the book, Chapter 3, which is titled: “The Fourteenth Amendment: What Norms Did ‘We the People’ Establish?” That chapter title implicitly refers, of course, to the preamble to the Constitution of the United States, which declares: "We the People of the United States... do ordain and establish this Constitution for the United States of America."


The Originalism Blog: An Introduction
Mike Rappaport

Welcome to the Originalism Blog -- the Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law.  At the Originalism Center, we have followed with enthusiasm the expansion of interest in originalism in recent years, but have noticed that there is no blog devoted to cataloguing and reviewing these developments.  Hence, the Originalism Blog. 

The Originalism Blog, like many blogs, is intended to be a work in progress.  Initially, the Blog will focus on three types of posts.  First, we will be posting the abstracts of papers on SSRN that involve originalism.  Second, in a feature called "Originalism in the Blogs," we will be linking to significant posts on originalism in other blogs.  Finally, in a feature called "Originalism on the Web," we will be linking to pieces that discuss originalism in newspapers, magazines, and other sites.

The Blog's ability to collect these materials is greatly enhanced through the use of students research assistants.  Their names are listed on the side to acknowledge their contribution.  While their work will often be indispensable, the final decisions of what stories or links to post on the blog will be made by the person listed as the author of the post. 

Needless to say, the Originalism Blog will be linking both to pieces that defend and attack originalism.  The idea is to be a "one stop site" for those who are interested in originalism from any perspective. 

Over time, we hope to expand the postings on the blog.  One idea is to include opinion posts by members of the Originalism Center and possibly by guest bloggers.  Other ideas are being considered as well.   For now, the opinions expressed are likely to come in the form of occasional and relatively short responses to the articles and posts that are linked to on the blog.

We would like to give explicit thanks to two bloggers we have emulated in the design of this "resource blog."  Anyone looking at the blog would recognize that we have borrowed some design ideas from Larry Solum's excellent Legal Theory Blog.  Our hope is to be able to provide information about SSRN postings on originalism in the same way that Larry does more generally for postings on legal theory.  Another inspiration, for our blog and web postings, has been the How Appealing blog published by Howard Bashman.  That blog provides significant information about appellate law postings on the web and we hope to do that concerning originalism.  If imitation is the sincerest form of flattery, then hopefully Larry and Howard will feel flattered.    

Finally, a brief word about the two pictures at the top of the blog.  These two pictures involve the "two foundings" of the nation.  The picture on the left is Howard Chandler Christy's Scene at the Signing of the Constitution of the United States.  The picture on the right is Fancis Bicknell Carpenter's First Reading of the Emancipation of President Lincoln.  The latter picture is not technically about the Constitution.  It would have been better to have a picture involving the Reconstruction Amendments, but I could not find anything suitable.