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51 posts from June 2011


More on That Poll
Mike Rappaport

Mike links to a poll purporting to get people's views about originalism versus the living Constitution approach.  But as with all polls, it depends on how you ask the question.  It seems (although I cannot confirm it) that the poll asked the following question:

Should the Supreme Court base its rulings on what the Constitution means in current times or meant as originally written?

This is how I would design the poll if I wanted to increase its support for the living Constitution approach, and so I assume that was what they did.

What's wrong with the poll?  There is no single answer as to what "the Constitution means in current times."  That is the problem.  Instead, the poll should say something like what "judges today believe the Constitution should mean in current times."  To make it totally fair, one could even correct the originalism choice with "what judges believe the Constitution meant as originally written."  

Then, let's see the results.   

Originalism on the Web
Michael Ramsey

John Yoo and James C. Ho: The Sword and the Purse (Part 2); The President as Commander in Chief.


Originalism in the Blogs
Michael Ramsey

Ruthann Robson on Dictionaries as Legal Authority?


More on Thomas and Violent Video Games
Mike Rappaport

I agree with Mike Ramsey that Justice Thomas's dissent is not terribly persuasive in Brown v. Entertainment Merchants Association.  But I have a different reason for my opinion.  Justice Thomas does spend some time describing the legal regime at the time as to parental control over children (but not as to speech to children).   But little about that regime convinces me that people at the time very likely would have held that freedom of speech would not have extended to speech to minor children.  Justice Thomas even admits that the current legal regime as to minor children is similar to the one at the time of the Framers.  But that is a very damning admission, since it is not inconceivable that today people would want to extend limited rights to speak to minor children.  

That said, I don't think it is obvious what the right answer in this case is as an original matter.  There is little evidence one way or the other about the content of freedom of speech at the time.  I could certainly imagine that there would have been rules at the time that prohibited adults to speak about sexual matters to minor children, although there is no evidence offered one way or the other. 

Our understanding of the history concerning freedom of speech is relatively limited.  I think this is because the Court has not been very interested in the original meaning about this particular area. Hopefully, additional work in this area will provide some insight.

Originalism at the Supreme Court: Violent Video Games and the First Amendment Rights of Minors
Michael Ramsey

Yesterday’s opinion in Brown v. Entertainment Merchants Association, with Justice Scalia writing for the majority and Justice Thomas in dissent, invalidated on First Amendment grounds California’s restrictions on selling or renting violent video games to minors without a parent’s permission.  (SCOTUSblog’s analysis is here).  Scalia’s opinion, though it has the snappiest lines, focuses mostly on case law and doesn’t have much to say about original understanding.  For those who study originalism, the most interesting part is Thomas’ dissent, which opens with the declaration that “[t]he original public understanding of the First Amendment … does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.”

        What follows, though, is a bit of a puzzle.  We learn a lot about seventeenth and eighteenth century parent-child relationships, including the fact that “[t]he Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure” of the family, and (six pages and many historical twists and turns later) that Thomas Jefferson wrote letters to his daughter Martha “dictating her daily schedule of music, dancing, drawing, and studying.”  From this, Justice Thomas explains, we are supposed to conclude that:

The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.

        Perhaps so, but Justice Thomas' opinion should raise some questions about originalist methodology.  Although wide-ranging (to say the least) in its survey of attitudes about family structure, it contains few facts about the specific question at hand – the eighteenth-century legal regime involving speech to minors.  I have doubts whether one can reliably infer specific legal conclusions from general social attitudes; that Jefferson was a controlling father doesn’t say much about Martha’s legal right to talk to others without his permission.  Justice Thomas’ conclusion may be correct, but this seems an unpromising way to get there.

Jared A. Goldstein: Can Popular Constitutionalism Survive the Tea Party Movement?
Michael Ramsey

Jared A. Goldstein (Roger Williams School of Law) has posted Can Popular Constitutionalism Survive the Tea Party Movement? (Northwestern University Law Review Colloquy, Vol. 105, p. 288, 2011; Roger Williams University Legal Studies Paper No. 106) on SSRN. Here is the abstract:

The Tea Party movement is easily recognizable as a nascent popular constitutionalist movement because it seeks to implement its constitutional vision using the tools of ordinary politics. Like many political movements that have succeeded in changing the understood meaning of the Constitution, including the civil rights movement, the feminist movement, and the gun rights movement, the Tea Party movement has sought to mobilize the public to demand the implementation of its constitutional vision. That constitutional vision is characterized by a broad conception of American exceptionalism and a narrow conception of what America stands for, what ideas and policies are American, and who the "real Americans" are. In Tea Party rhetoric, the Constitution is a label for the fundamental principles that the movement embraces while all other values and policies are regarded as dangerously un-American. 

This Essay takes the first steps toward an assessment of popular constitutionalism in light of the Tea Party movement and suggests that the Tea Party movement calls into question one of the central claims of popular constitutionalism, the assertion that popular engagement with the Constitution and control over constitutional interpretation promote democratic values and perhaps may be necessary for democratic legitimacy. As the Tea Party movement illustrates, political movements can mobilize the public around shared constitutional commitments for the purpose of foreclosing popular democracy. The Tea Party movement seeks to close off debate over policy choices understood by many to be available through ordinary politics and employs rhetoric that demonizes the movement’s opponents as un-American and therefore outside the bounds of American politics. The Tea Party movement suggests that the relationship between popular constitutionalism and popular democracy is far from clear.

Originalism on the Web
Michael Ramsey

R.B. Berntein:  The Constitution as an Exploding Cigar and Other “Historian’s Heresies” About a Constitutional Orthodox.


Lawrence B. Solum: The Interpretation-Construction Distinction
Michael Ramsey

Lawrence B. Solum (Georgetown Law) has posted The Interpretation-Construction Distinction (Constitutional Commentary, Vol. 27, pp. 95-118, 2010 ) on SSRN.  Although not strictly speaking about originalism, this is a hugely important article for originalist theory, not to be missed.  Here is the abstract:     

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!

The basic idea can be explained by distinguishing two different moments or stages that occur when an authoritative legal text (a constitution, statute, regulation, or rule) is applied or explicated. The first of these moments is interpretation – which I shall stipulate is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text. The second moment is construction – which I shall stipulate is the process that gives a text legal effect (either my translating the linguistic meaning into legal doctrine or by applying or implementing the text). I shall then claim that the difference between interpretation and construction is real and fundamental. Although the terminology (the words "interpretation" and "construction" that express the distinction) could vary, legal theorists cannot do without the distinction.

One more preliminary point: the topic of this Essay is narrow and conceptual. This Essay, has three goals: (1) to explicate the nature of the interpretation-construction distinction, (2) to argue that this distinction marks a real difference, and (3) to suggest that the distinction is helpful in that it enables legal theorists to clarify the nature of important debates, for example debates about constitutional interpretation. The Essay does not offer any particular theory of interpretation or construction – that it is, it remains agnostic about questions as to how linguistic meaning can be discerned or how legal content ought to be determined. Nor does this theory offer an account of the history and origins of the distinction. Those topics are important, but raising them in this Essay might shift attention away from prior questions about the nature and value of the distinction itself.

Here is the roadmap. In Part II, this Essay shall discuss two preliminary sets of ideas: (1) vagueness and ambiguity, and (2) semantic content and legal content. In Part III, this Essay shall use these preliminary ideas to answer the questions, "What is interpretation?" and "What is construction?" In Part IV, this Essay shall consider some objections to the interpretation-construction distinction. In Part V, this Essay shall develop the argument that the distinction is fundamental and indispensable.

Originalism on the Web
Michael Ramsey

Pew Research Center: Ideological Chasm Over Interpreting Constitution

        Key finding:   "public opinion is evenly divided about how the justices should interpret the Constitution when determining their rulings. Half of Americans (50%) say the Court’s rulings should be based on its understanding of what the U.S. Constitution means in current times, while about as many (45%) say rulings should be based on its understanding of what the Constitution meant as originally written."


Originalism on the Web
Michael Ramsey

David F. Forte on Originalism in the Classroom.