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Joel Alicea: Forty Years of Originalism

Stanford University's Hoover Institution has posted an article by Joel Alicea: Forty Years of Originalism (Policy Review, No. 173). Here is the first paragraph:

In the immediate aftermath of his 2010 election as the newest senator from Utah, Mike Lee spoke before a crowd of enthusiastic practitioners, scholars, and students at the Federalist Society National Lawyers Convention. Senator Lee focused on the role of Congress in constitutional  interpretation, and he ended his remarks with the following pledge: “I will not vote for a single piece of legislation that I can’t reconcile with the text and the original understanding of the U.S. Constitution.” The senator’s statement rejected the idea that the Supreme Court is the only relevant constitutional interpreter in the federal system and struck at the heart of the “living Constitution,” the notion that the original meaning of the Constitution is not binding on today’s government officials. By requiring adherence to the original meaning of the constitutional text,  Senator Lee sided with originalism. The late scholar Gary Leedes once complained that while origi­nalists ask the federal judiciary to be originalist, they “permit the electorally accountable officials substantial leeway. The Congress can interpret the tenth amendment and the necessary and proper clause virtually as it pleases.” Senator Lee’s speech represents a forceful reply to Leedes’s challenge: Congress must be originalist, too.

This paper continues Joel Alicea forays into originalism outside of the judicial branch and the different types of originalism.  Alicea, as a law student, has somehow managed to make significant contributions to these areas.  

Alicea notes quite correctly that "since Bork, originalism has focused almost exclusively on the role of the judiciary in constitutional interpretation." He continues that some originalists who favor democracy might regard originalism for the judiciary, but not for Congress, and might argue that "the legislature, as the people’s representatives, have a right to make . . .  value choices."  Alicea argues against this position.  My own view also provides an argument against this view: the reason why both Congress and the Courts should follow the Constitution's original meaning is that the Constitution provides a desirable set of limits on all branches of the government that promotes the welfare of the people.  

Alicea notes that some scholars have worked on originalism outside of the judiciary:

Professors Neal Katyal and Michael Ramsey have made tentative forays into this field. “Originalism and the Legislature” and “An Originalist Congress,” both written by this author, take the topic on directly and argue that the internal logic of various schools of originalism would require Congress to be originalist when it interprets the Constitution. But a good deal is left to be done in this area, and the interest in originalism among members of the political branches ought to inspire scholars to apply originalism extrajudicially. 

Alicea appears to be referring in part to this excellent article by Mike Ramsey.