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30 posts from January 2011


Constitutional Design in the Ancient World
Mike Rappaport

Adrian Vermeule and Adriaan Lanni (Harvard Law School) have posted Constitutional Design in the Ancient World on SSRN. Here is the abstract: 

This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world. We also discuss the implications of adding single founders and outsider founders to the constitutional toolkit by describing how constitutional legitimacy would work, and how constitutional interpretation would be conducted, under constitutions that display either or both of the distinctive features of ancient constitutional design.


Originalism on the Web
Mike Rappaport

Ohio State Law Journal: 2010 Symposium: Originalism and the Jury.


Originalism on the Web
Mike Rappaport

Jonathan M. Chu reviews Alison L. LaCroix’s The Ideological Origins of American Federalism in Dividing Sovereignty, Inventing American Federalism.


Originalism in the Blogs
Mike Rappaport

Brannon Denning on Parties, Politics, and the Constitution: A Review of Tushnet’s Why the Constitution Matters.


Originalism in Practice
Mike Rappaport

Lawrence Rosenthal (Chapman University- School of Law) has posted Originalism in Practice (Chapman University Law Research Paper No. 11-01) on SSRN. Here is the abstract:

Originalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits oforiginalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in practice, it provides a genuinely originalist vehicle for deciding real cases – that is, deciding cases by reference to the meaning of constitutional text as historically fixed at the time of framing and ratification when nonoriginalists would decide them otherwise. Yet, the scholarly literature to date makes no effort to address that question. This article aims to fill this gap by assessing how originalist interpretations of the Constitution fare in practice. In light of the ascendency of originalism, this article offers what may seem a surprising claim – when originalist arguments are actually deployed in real-world litigation, they rarely prove able to an approach to constitutional adjudication meaningfully different from nonoriginalism.

Nonoriginalists, no less than originalists, regard constitutional text as binding. The nonoriginalist claim is that the broad, open-ended provisions of the Constitution are properly construed to have evolving content. Originalists, for their part, grant that the Constitution contains much vague or ambiguous text, even when assessed in light of its original semantic meaning. Some originalists rely on framing-era practice or understandings to reduce the scope of textual vagueness or ambiguity subject to nonoriginalist construction, but in practice, this approach is deeply problematic. There is no authentically originalist methodology for evaluating claims that changed circumstances render reliance on framing-era practice or understandings – that is, the original expected applications of constitutional text – obsolete or irrelevant. Other originalists embrace a framework originalism that treats the original meaning of text as binding only at the level of generality found in the text itself. In practice, however, this approach is indistinguishable from nonoriginalism.

The paper concludes with a survey of recent, ostensibly originalist decisions of the United States Supreme Court confirming that in reality, these decisions consistently turn on nonoriginalist considerations. Originalist adjudication is rather like the Loch Ness Monster – much discussed, but rarely encountered.


'Original' Means Old, 'Original' Means New: An 'Original' Look at What 'Originalists' Do
Mike Rappaport

Harold Anthony Lloyd (Wake Forest University - School of Law) has posted 'Original' Means Old, 'Original' Means New: An 'Original' Look at What 'Originalists' Do on SSRN. Here is the abstract:

This article explores two different forms of Constitutional "originalism." One form (that of Justice Thomas) purports to embrace the intent of a specific oracular group while the other form (that of Justice Scalia) purports to embrace the original meaning of the Constitution’s text. Though originalism in either form may have initial common sense appeal, both forms of originalism founder upon analysis. Deconstructing such flawed doctrines proves useful in constructing a more sensible approach to Constitutional interpretation. This more sensible approach recognizes and respects, among other things, three levels of Constitutional meaning: referential meaning embodied in the Constitution's Preamble, primary non-referential meaning embodied in the non-Preamble textual frame, and secondary non-referential meaning embodied in the solutions to the issues framed. Proper jurisprudence interprets the Constitution in a reasonable manner consistent with each and every such semantic level. Proper jurisprudence also acknowledges that “original” means both old and new. To illustrate such three levels of analysis, this article concludes by re-analyzing the landmark civil rights case of Lawrence v. Texas including the flawed dissents of Justices Scalia and Thomas in that case.


Originalism on the Web
Mike Rappaport

Originalism is being debated on college campuses these days, and not just by the faculty, as these posts from the Harvard Political Review illustrate:

Sam Barr Weighing In: The Slippery Originalist.

Paul Schied responds to Weighing In: The Slippery Originalist in Weighing In: New Rights vs. Old Rights.


How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power
Mike Rappaport

Thomas Y. Davies (University of Tennessee College of Law) has posted How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power (Law and Contemporary Problems, Vol. 73, p. 1, 2010) on SSRN. Here is the absract:

Mere probable cause that a crime might have been committed did not suffice to justify a criminal arrest or search under framing-era law. Rather, James Madison innovated when he used bare "probable cause" as the minimum standard for issuing warrants in the Fourth Amendment because the federal Framers were primarily concerned with regulating revenue search warrants, and that was the unique area in which bare probable cause of a violation had emerged as the accepted standard. However, there is no indication that the federal Framers meant for that standard to undercut the more rigorous common-law standards for criminal arrests or searches.

At common law, arrest warrants and warrantless arrests for felonies typically required both (1) proof that a crime had been committed "in fact" and (2) information showing probable cause of suspicion as to the identity of the culprit. Because hearsay evidence was generally banned at common law, this effectively meant that no arrest could be made unless a potentially accountable complainant made or was prepared to make a sworn accusation of crime. Warrantless arrests for less than felony were limited to instances in which the arresting person witnessed an ongoing breach of the peace such as a fight; there was no arrest authority for minor offenses, which were handled with a summons. Additionally, criminal search authority was usually only an appendage of arrest authority. Search warrants for stolen property, which also required an allegation of felony "in fact," seem to have been used only when an arrest warrant could not. There was no recognition of warrantless criminal search authority other than that arising from a lawful arrest.

The state and federal Framers attempted to preserve these common-law standards in provisions that forbade a person being arrested except according to "the law of the land" or "due process of law." However, the original understanding of those provisions was lost when nineteenth-century judges followed English judges in adopting bare probable cause that a felony might have been committed as a justification for a warrantless arrest by a police officer. That relaxed warrantless arrest standard then opened the way for the development of modern policing, and investigatory criminal procedure displaced accusatory procedure. Additionally, the Supreme Court invented the notion that bare probable cause could provide a justification for a warrantless criminal search even in circumstances when an arrest could not be lawfully made in the 1925 decision in Carroll v. United States. Thus, claims in recent decisions, including those in Atwater v. Lago Vista (2001) and Virginia v. Moore (2009), that mere probable cause always sufficed to justify criminal arrests and searches are gross judicial distortions of authentic historical doctrine.

In addition, the redefinition of probable cause in Illinois v. Gates (1983) as information that merely indicates a "fair probability" or "substantial chance" of crime substantially degraded the historical meaning of that term. Prior Supreme Court decisions had instead invoked the definition used consistently from the time of the framing to the effect that probable cause meant evidence creating a such a strong suspicion of guilt as would justify a prudent person in believing that the person to be arrested had committed the alleged crime. This relaxation of the probable cause standard, which effectively created discretionary arrest and search authority, further magnified the expansion of government arrest and search powers that occurred when the bare probable cause standard was substituted for the common-law standards for criminal arrests and searches.


Originalism in the Blogs
Mike Rappaport

Mike Dorf on Against Habeas Originalism.

Patrick J. Charles on Originalism Through Literary Works.


Originalism on the Web
Mike Rappaport

Rick Ungar on Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798.

Ungar claims that:

The law was not only the first time the United States created a socialized medical program (The Marine Hospital Service) but was also the first to mandate that privately employed citizens be legally required to make payments to pay for health care services.

This interesting, but a little misleading, at least as far it relates to the constitutional litigation.  All the law did was to impose a tax on seamen that would then be used to fund government hospitals for such seamen.  That is not directly relevant to the claim that the health care mandate is unprecedented as a regulation of commerce.