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41 posts from July 2012


Kevin Gutzman: Originalism vs. Obamacare
Michael Ramsey

Kevin R.C. Gutzman: Originalism vs. Obamacare (principally a response to an earlier article by Richard Leffler, editor emeritus of the great Documentary History of the Ratification of the Constitution).


Derigan Silver and Dan V. Kozlowski: The First Amendment Originalism of Justices Brennan, Scalia and Thomas
Michael Ramsey

Derigan Silver (University of Denver Department of Media, Film and Journalism Studies; University of Denver Sturm College of Law) and Dan V. Kozlowski (St. Louis University, Department of Communication/School of Law) have posted "The First Amendment Originalism of Justices Brennan, Scalia and Thomas"  (Communication Law and Policy (2012, Forthcoming)) on SSRN. Here is the abstract:

Originalism is a mode of interpreting the U.S. Constitution that holds that the original intent or original meaning of the Constitution is not only relevant but authoritative – that judges are obligated to follow the framers’ original intent and meaning when resolving cases. Normative questions surrounding originalism’s merit have produced one of the great constitutional debates of recent decades. This article compares and contrasts the First Amendment originalism of three justices: William Brennan, Antonin Scalia, and Clarence Thomas. It examines every First Amendment opinion prior to the 2011 term written by the justices that contains originalism. The article concludes all three justices used originalism to support a wide variety of arguments in a wide variety of First Amendment cases. In addition, the analysis demonstrates that Justices Scalia and Thomas more frequently supported the First Amendment in opinions in which they used originalism, a finding that contradicts the idea that originalism is associated with judicial restraint. The article contends that, with a few minor exceptions, none of the justices used originalism in a consistent way. Finally, the article offers concluding perspectives on originalism’s influence on current First Amendment jurisprudence and the limitations of using originalism for constitutional interpretations.


The Federalist Society's SCOTUS Report Blog
Michael Ramsey

Earlier I noted Joel Alicea's post at the Federalist Society's SCOTUS Report blog, but I neglected to mention that this blog is a newly-launched project (for "Supreme Court news and analysis") with very prominent originalist-oriented contributors including (in addition to Alicea) Richard Epstein, Richard Garnett, John McGinnis and Nicholas Rosenkranz (but surprisingly not that much originalist content in its early stages -- more to come, one hopes).

Meanwhile, Joel Alicea has this followup to his Public Discourse essay:Debating Judicial Restraint: A Response to Somin and Whelan.

CORRECTION:  Sorry, I meant "SCOTUS Report", not "SCOTUS Review" (fixed).


Historians and Legal Scholars
Mike Rappaport

I have written various posts about the gulf between historians and legal scholars, especially as it relates to constitutional originalism.  A recent piece I wrote allows me to illustrate my general arguments.

Earlier in the month, I wrote a short piece for the New York Times Room for Debate feature where I argued that the national convention method for amending the Constitution does not work and therefore Congress enjoys a monopoly on amendments.  I proposed an alternative method that would avoid a convention and would have the state legislatures agree on specific amendment language that would then be ratified by the states.  (For my Liberty Forum discussion of the matter, see here.)

Someone pointed out to me that one of the comments to my piece in Room for Debate was written by Pauline Maier.  For those not aware of her work,  Maier is one of the leading historians of the Founding, whose recently published work on the Ratification of the Constitution has gotten rave reviews.  Maier is at the top of her profession.  Thus, if Maier fumbles easy plays in the legal realm, that tells you something about historians when they venture on to legal terrain.

I was happy to see that Maier had commented on my piece, but disappointed by her comment.  I will reproduce her comment below.  Maier’s words are indented, mine are in normal formatting.

During the course of the Revolution, Americans learned to distinguish constitutional law, which was a direct act of legislation by the sovereign people (drawn up by special conventions and then submitted to the people for ratification or, with the Federal Constitution, to specially elected state ratifying conventions) from ordinary laws, which are passed by legislatures. The first state to make that distinction was Massachusetts, whose constitution of 1780, the oldest still-functioning written constitution in the world, was drafted by an elected constitutional convention and sent back to the people in the towns for ratification. That constitution was also the first to be enacted by "We the People," as was the federal Constitution of 1787. This proposal pays no attention to that "original understanding" of the American constitutional system. It would have fundamental and ordinary laws both come from state legislatures.

Maier is correct that American in the late 18th century distinguished between constitutional law and ordinary law in the way that she suggests.  But her point is seriously problematic.  First, the United States Constitution authorizes amendments by either the people (acting through conventions) or by legislatures.  Moreover, it allows amendments passed entirely by legislatures.  In the most common amendment method, two thirds of each house of Congress proposes an amendment and three quarters of the state legislatures ratify it.  My proposal is no more legislature oriented than the “ordinary” way the Constitution is amended.  Thus, her criticism seems misplaced.  There is nothing in the Constitution or the constitutional tradition that cuts against having legislatures propose and ratify an amendment.  Moreover, her reference to the original understanding seems to ignore that the legal document itself (and therefore the decisions of the original drafters and ratifiers) was to allow amendment purely by legislatures.

Note, too, that Article V of the U. S. Constitution offers a way around Congress: if two-thirds of the state legislatures request that a new constitutional convention be called, Congress must call one.

Maier’s point is peculiar.  My piece had argued that this method for amending the Constitution does not function.  Therefore, this “offering” by Article V is of little value.

Incidentally, the Twenty-First Amendment to the US Constitution (ending prohibition) was ratified by state conventions, not state legislatures, so it is incorrect to say that the convention method "has never been used."

Maier’s point here is also wide of the mark.  I am quite aware that the Twenty-First Amendment was so ratified.  What she misses is that my reference to the “convention method” was clearly to the method whereby a convention proposes an amendment.

What do these mistakes have to do with the differences between historians and legal scholars?  Well, it is exactly mistakes of this sort – mistakes that to me could easily have been avoided by a careful attention to the precise argument being made and to distinctions drawn in the constitutional text – that historians sometimes seem to make as to law.

As I have said before, I am sure that historians find legal scholars frustrating in other ways.  And they may have valid points to make.  But that does not mean that legal scholars don't have legitimate gripes as well.

(Cross posted at the Liberty Law Blog)

The Reason Interview with Randy Barnett
Michael Ramsey

Available here.


Three Interesting Posts at Law and Liberty Blog
Michael Ramsey

The Law and Liberty Blog has been producing quite a bit of originalist-oriented commentary (even beyond Mike Rappaport's contributions), including these three posts on matters we've discussed here as well:

Tom Christina: Even More About NFIB v. Sebelius (especially his point #5).

Gordon Lloyd: The Origin of the Power to Lay and Collect Taxes and Its Limits.

Mark Rozell, The Constitution and Executive Privilege.

Was Chief Justice Roberts’s Sebelius Opinion A Principled Exercise of Judicial Restraint or Merely Strategic?
Mike Rappaport

While criticisms of Chief Justice Roberts from the right wing of the legal blogosphere has generally been strong, some have argued that Roberts's decision might be defended as an exercise of judicial restraint.  See, e.g.  Orin KerrJoel Alicea, and Greg Weiner.

Of course, that Roberts followed a type of judicial restraint in Sebelius does not make him a principled follower of judicial restraint.  If Roberts follows judicial restraint when it allows him to reach a result that protects his reputation, but does not follow such restraint in other cases, then one can hardly defend his decision in Sibelius as a principled exercise of such restraint.

The way to explore whether Roberts’s opinion was principled is to examine the other cases that Roberts has decided.  I am not ready to engage in any comprehensive examination, but we can gain some insight by simply exploring some of the other cases where Roberts joined the liberals this past June.  For my discussion of these cases, see here.

Judicial restraint is not a simple thing.  In Sebelius, Roberts purported to interpret a federal statute  so that it would be constitutional.  This is one type of judicial restraint (although I have long been skeptical of the claim that rewriting a statute is a form of restraint).  But the more basic type of judicial restraint is to interpret the Constitution  so as to allow the legislatures to enact provisions it desires (and believes are constitutional).  In doing this, the court either confers deference on the legislature or simply interprets the Constitution in a way that allows the legislature ample room to pass laws.

In June, Roberts did not seem to do that.  Even in Sebelius, his interpretation of the Commerce Clause was not restrained or deferential under this approach.  Moreover, in the Stolen Valor case, Roberts joined an opinion that held the federal statute unconstitutional, even though precedent existed that would have allowed the statute to be held constitutional.  And in the Arizona immigration case, Roberts joined an opinion that interpreted a congressional statute’s preemptive effect broadly to strike down much of an Arizona legislature’s enactment.  (While one might argue that the Court in the Arizona case merely chose one legislature over another, the stronger argument is that the Court expansively interpreted the federal legislature’s enactment to strike down the state legislature’s.  The restrained approach was arguably to interpret both legislatures’ acts fairly.)

It is also worthwhile noting the case of Citizens United, where Roberts joined an opinion striking down campaign finance restrictions that applied to corporations.  Not much restraint there.  While some have argued that Roberts’s preferred course in that case was to stretch the statute to render it constitutional, he ended up not reaching that result but instead joining a decision to strike it down.  What he initially might have preferred, but chose not to do, doesn't really count.  (One might also place the Seattle Schools case in this category of unrestrained decisions.)

In the end, defenders of Chief Justice Roberts’s decision in Sebelius as an exercise of judicial restraint need to do more.  They need to explain the dominant pattern of his decisions – or else leave open the possibility that he is merely a strategic believer in judicial restraint.

(Cross Posted at the Liberty Law Blog)


Elizabeth Price Foley: Restore Federalism
Michael Ramsey

In the New York Times "Room for Debate" series on what to "omit, add or claify" in the Constitution, Elizabeth Price Foley says Restore Federalism: It Isn't a Bad Word.


Derigan Silver: Originalist Citations in U.S. Supreme Court Freedom of Expression Opinions
Michael Ramsey

Derigan Silver (University of Denver Department of Media, Film and Journalism Studies; University of Denver Sturm College of Law) has posted "The Framers' First Amendment: Originalist Citations in U.S. Supreme Court Freedom of Expression Opinions" (Journalism and Mass Communication Quarterly 88(1) (2011)) on SSRN. Here is the abstract:   

This article examines the use of originalist citations by Supreme Court justices in First Amendment freedom of expression opinions. It quantitatively examines when justices use originalist citations and qualitatively explores the content of the justices’ citations to determine how the justices are describing the original meaning of the First Amendment. The article concludes that justices uncritically relied on the citations as authoritative; that although it is identified with conservatism and judicial constraint, originalism was frequently used by liberal justices to expand constitutional protections; and that the “blank slate” of originalism makes it a useful tool for originalists and non-originalists alike.


Ed Whelan on Joel Alicea and Judicial Restraint

At NRO, Ed Whelan has this response to Joel Alicea's Public Discourse essay (noted here) on legal conservatism and judicial restraint.  He makes several thought-provoking points, including this one:

More broadly, I hope that Alicea is wrong that many legal conservatives now regard “judicial restraint” simply as “adherence to the original meaning: no more but also no less.” The problem with that conception, in my judgment, is that it gives too much authority to justices to impose their best guesses as to what constitutional provisions mean. As I see it, judicial restraint necessarily supplements original-meaning jurisprudence: in those cases in which original-meaning methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments. There’s plenty of room for reasonable dispute over how to define the requisite level of clarity, but it’s a mistake to collapse judicial restraint into nothing more than a justice’s best read on original meaning.