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08/23/2015

More from Stephen Griffin on New Originalism (and Executive Power)
Michael Ramsey

At Balkinization, Stephen Griffin continues his posts on New Orignalism: Pro-Executive Power Scholarship as a Road Test of Original Public Meaning Theory

 From the introduction:

It is sometimes said that the new originalism is indeed “new,” in the sense of still being built out and road tested (I agree that the interpretation/construction distinction still has the wrapping on).  Perhaps so and it would certainly be unfair to judge the progress of the theory by dating it to Justice Scalia’s 1986 move to original public meaning (OPM).  For his part, Scalia has always been better about giving statutory examples to back up the cogency of OPM theory rather than constitutional examples (and his recent book with Bryan Garner, Reading Law is no exception).  But if we consider the field of executive power scholarship since the early 1990s, it turns out that OPM has been around for almost a quarter of a century, certainly enough time by anyone’s standards to judge it by the quality of the specific interpretations (or constructions) of the provisions of Article II (and the “declare war” clause of Article I) that have been offered under its banner. 

And in conclusion:

Speaking generally, when you really look closely at OPM executive power scholarship, what you see is a set of presumptions being used to bulk up rather thin evidence, not a robust assemblage of eighteenth-century meanings.  The reason is not that there is a lack of the right kind of evidence about executive power.  There’s plenty of evidence about the meaning of executive power…in England.  In the colonies, it gets more complicated.  But my main point is that the presumptions are doing nearly all the work, something that is especially on display in Yoo’s work as I argue in Long Wars and the Constitution.  In other words, these scholars don’t really have evidence of what the OPM of executive power was when the Constitution was sent to the several states.  Not their fault, no one does!  In order to save an inherently flawed methodology, they are appropriating OPM evidence from an earlier period (and another country!) and shoving it into the framework of the writing and ratification of the Constitution.  This is why it is especially misleading to exclude, as these scholars sometimes do, relevant evidence from the Federal Convention.  Again speaking generally, excluding evidence from the Federal Convention is adventitious for pro-executive power scholars, especially with respect to war powers.  But it’s never a good idea to exclude relevant historical evidence, especially when the people at Philadelphia also participated actively in the ratifying conventions.
 
All of this is not by way of establishing that the semantic or, for that matter, “meaning as purpose” meaning of phrases like “executive power” was somehow “living,” fluid, or impossible to determine.  I am arguing rather that the OPM approach has a very specific take on what counts as relevant historical evidence that happens to be unsuited to the task of finding constitutional meaning amid the rapidly changing circumstances of the 1780s.  Historians already knew this in a sense – why didn’t leading executive power scholars in the law schools pay more attention?  In reviewing pro-executive power scholarship for my OUP Handbook chapter, this was hard for me to understand.  As you can no doubt tell by now.
 
While John Yoo (with whom I vigorously disagree on many points) seems to be the main target here, I feel a bit targeted myself as well, and hope to have a response at some point.  For the moment, I'll start by saying that, to the extent that Professor Griffin is talking about me, Sai Prakash, and others with a similar approach, I simply don't understand -- and emphatically reject -- the idea that "the OPM approach has a very specific take on what counts as relevant historical evidence."  I think any reader who makes it through "The Executive Power in Foreign Affairs" would concede that we consider a wide range of evidence (perhaps to a fault).
 
Maybe he is really only talking about John Yoo, and there is evidence of a Yoo focus in the post.  But if that's so, it's hardly fair to criticize the entire theory of original public meaning on the basis of a single scholar with whom most original public meaning theorists disagree.