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32 posts from February 2011


Originalism on the Web
Mike Rappaport

Garrett Epps on Stealing the Constitution.

Sandy Levinson responds to Mr. Epps in Et Tu, Garrett.


Reforming Article V
Mike Rappaport

Michael B. Rappaport (University of San Diego School of Law) has posted Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them (Virginia Law Review, Vol. 96, No. 7, November 2010; San Diego Legal Studies Paper No. 11-049) on SSRN. Here is the abstract: 

The amendment provisions of the United States Constitution have a serious defect. Although some commentators claim that the supermajority rules in these provisions are too strict, that is by no means clear. Rather, the clear defect in the amendment provisions is that the only effective way they provide of amending the Constitution requires Congress’s approval and therefore Congress enjoys a veto over all amendments. While the Constitution does formally allow the state legislatures to seek to amend the Constitution through a national convention, that amendment method is broken. Not only has the national convention method never been used to pass an amendment or even to call a convention, the state legislatures are unlikely to ever use this method, because of the state legislatures’ fear of a runaway convention that might seek to enact constitutional amendments that they strongly dislike. 

This congressional veto over amendments has significant normative implications. It suggests that the Constitution cannot be amended in a way that will constrain congressional power. It also makes it unlikely that the Constitution can be amended to limit the federal government or to expand state authority, because Congress is unlikely to support these changes. While it has often been assumed that the increased nationalism of the Constitution and government over the course of American history reflects changes in technology and values, a significant portion of this nationalist movement may instead be the result of a biased amendment procedure. 

In addition to exploring the normative implications of the broken amendment procedure, the article also proposes a new amendment method. Under this state drafting procedure, an amendment would be enacted when it was approved by two thirds of the state legislatures and was ratified by three quarters of the states through either state conventions or ballot measures. Finally, the article argues that this reform of the amendment procedure could actually be passed under the national convention method and proposes a strategy for enacting it.


Review of Church, State and Original Intent by Donald Drakeman
Mike Rappaport

Zachary R. Calo (Valparaiso University School of Law) has posted Review of Church, State and Original Intent by Donald Drakeman (Journal of the American Academy of Religion, Vol. 78, p. 827, 2010) on SSRN. The short abstract reads: This paper reviews Donald Drakeman’s, Church, State and Original Intent.


Originalism Center Conference
Mike Rappaport

This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its second annual Originalism Works-in-Progress Conference.  From my perspective, it was a great event.  The list of papers and commentators are here, and in the near future, a video of the conference will be available.  

One of the conference participants was Stanley Fish, who also has a blog at the New York Times.  Here is his take on the conference.

Originalism on the Web
Mike Rappaport

Neal Conan speaks with Ron Elving, Akhil Reed Amar, and Ed Whelan in Linking Constitution, Laws Harder Than It Sounds.


Originalism on the Web
Mike Rappaport

The Federalist Society has posted a video of a panel discussion on Alternatives to Originalism: Conservative and Libertarian Perspectives.

I saw this panel in San Francisco.  Interesting, but it did not lead me to quesion my originalism.


Equality Among Equals
Mike Rappaport

Michael Teter has posted Equality Among Equals: Is the Senate Cloture Rule Unconstitutional? (Marquette Law Review, Vol. 94, February 2011) on SSRN. Here is the abstract:

The U.S. Senate now operates as a sixty-vote chamber. Nearly every action, from passing significant legislation to consenting to routine executive nominations, requires support from a supermajority of senators. The basis for the sixty-vote Senate rests with Rule XXII, defining the standard for invoking cloture to end debate. A largely ignored provision of the Constitution renders Rule XXII suspect. Article I, Section 3 states, in part, "Each Senator shall have one Vote." Conventional wisdom misidentifies this clause as serving only the basic purpose of denoting a change from the state-based voting practiced under the Articles of Confederation. The history of the Senate’s creation reveals, however, that the provision is better read as meeting the Framers’ goal of devising an active, effective upper chamber, and that they instilled in the “Each Senator” language the principles of equality and representation. Relying on the Supreme Court’s one person, one vote jurisprudence as a roadmap, the article argues that because Rule XXII serves to disproportionately weight its members’ votes, it violates Article I, Section 3’s command of senatorial voting equality.


Confirmatory Legislative History
Mike Rappaport

James J. Brudney (Ohio State University Moritz College of Law) has posted Confirmatory Legislative History on SSRN. Here is the abstract:

The Supreme Court and lower courts often rely on legislative history to confirm or reinforce what they already have concluded is the plain meaning of statutory text. The Roberts Court has done so on numerous occasions since 2006: six of these majorities, including four cases decided during the 2009 Term, have drawn sharp rebukes from Justice Scalia.

This Essay maintains that persistent judicial reliance on confirmatory history reflects important shortcomings in the textualist approach. When courts move beyond the presumptively clear meaning of statutory language, they recognize - even if implicitly - that assertions of clarity can too often serve as either a mirage or a refuge. Clarity may be a mirage because apparently precise words or phrases often give rise to conflicting "plain meanings," and also because apparently assured readers of those words or phrases are conditioned to perceive clarity based on their own specialized training, background, and level of self-confidence. Assertions of clarity may serve as a refuge in that they obviate the need for judges to provide more complete explanations for their decisions. This aspiration for completeness, although not embraced by Justice Scalia, is important to many other judges as they seek to explain adjudicative resolutions before the diverse audiences to whom they are responsive and responsible.


The Origins of the Privileges or Immunities Clause
Mike Rappaport

The Georgetown Law Journal has published Kurt T. Lash's (University of Illinois College of Law) The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment. Here is the abstract of SSRN:

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive interpretation of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he sharply distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities. 

This article, the second in an extended investigation of the origins of the Privileges or Immunities Clause, presents historical evidence which strongly suggests that none of these assumptions are correct. Although John Bingham’s first draft of the Fourteenth Amendment used the language of Article IV, mid-way through the Reconstruction debates Bingham realized he had made a mistake. Withdrawing his initial proposal, Bingham abandoned the language of Article IV and drafted a second version of the Amendment. This second version protected the “privileges or immunities of citizens of the United States ” - a phrase which mirrored antebellum language regarding the rights of national citizenship. Bingham insisted that his second and final version of Section One did not refer to the common law state-conferred rights of Corfield and Article IV, but instead nationalized a different and limited set of constitutionally recognized privileges and immunities, in particular the first eight amendments to the Constitution. Understanding the difference between Bingham’s first and second drafts not only explains what otherwise appear to be inconsistencies in Bingham’s speeches, it also calls into question contemporary efforts to read the Privileges or Immunities Clause as a source of un-enumerated natural rights. Like other moderates in the Thirty-Ninth Congress, Bingham wished to expand the protection of individual rights in the states, but not at the expense of the retained right of the people in the states to regulate the content of most civil rights, subject only to the requirements of due process and equal protection.


Dodging a Bullet: McDonald v. City of Chicago and the Limits of Progressive Originalism
Mike Rappaport

Dale Ho (NAACP Legal Defense Fund) has posted Dodging a Bullet: McDonald v. City of Chicago and the Limits of Progressive Originalism (William & Mary Bill of Rights Journal, Vol. 19, p. 369, 2010) on SSRN. Here is the abstract:

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated rights in subsequent cases. This Article argues that progressives should be relieved by rather than disappointed with the outcome in McDonald. Practically speaking, the purported gains that would have accrued from a revitalized Privileges or Immunities Clause were largely illusory. The Clause was unlikely to be a fountain for new unenumerated rights. Moreover, progressive originalists’ concerns about substantive due process tend to overestimate the role that academic debates play in the broader public conversation about the meaning of the Constitution. But most importantly, a doctrinal shift away from existing Due Process jurisprudence towards a new reliance on the Privileges or Immunities Clause could have resulted in an unintended rollback of civil rights. Although the Fourteenth Amendment is undoubtedly radically egalitarian in spirit, there can be little doubt that the range of substantive protections that it was originally understood to afford is more limited than what is protected under current Supreme Court precedent. Moreover, reliance on the Privileges or Immunities Clause could have dire consequences for noncitizens, who may fall outside of the Clause’s scope. Although progressive originalists have made valuable contributions to constitutional discourse, McDonald illustrates that a conscious decision by progressives to adopt the language of originalism wholesale is unlikely to be a winning strategy in the long-term. More than any other area of constitutional law, the Court’s Fourteenth Amendment jurisprudence demonstrates the tremendous value of modes of interpretation other than originalism. Progressives should not shy away from a tradition of constitutional interpretation that has produced the finest moments in the Court’s history.