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Wyatt Sassman: Applying Originalism
Michael Ramsey

In the current issue of the UCLA Law Review Discourse, Wyatt G. Sassman: Applying Originalism (63 UCLA L. Rev. Disc. 154 (2015)).  Here is the introduction:

On November 17th, 2014, Harvard Law School presented the inaugural Justice Antonin Scalia Lecture. As Dean Martha Minow of Harvard Law School, explained, an anonymous donor endowed the lecture “to promote and advance understanding of the founding principles and core doctrines of the United States Constitution.” Judge Frank H. Easterbrook presented the first lecture, titled “Interpreting the Unwritten Constitution.”  A close friend and ideological colleague of Justice Scalia, Judge Easterbrook presented a concise yet comprehensive explanation of originalism as a theory of judicial authority. This is a review of that lecture.

Reviewing this lecture presents an opportunity to capture originalism in the middle of an important change. Most modern originalists accept that the meaning of text can change over time. As a result, many are abandoning strict reliance on text and, in exchange, some are seeking structural measures of original intent. Easterbrook’s lecture is an example of this shift. It offers a way to make substantive constitutional decisions based on the Framers’ original view of the separation of powers as inferred from the text, rather than based on the original meaning of any specific constitutional provision.

Perhaps because it is exemplary, his approach presents problems, both new and old. I identify two in particular. First, Easterbrook’s argument still does not account for constitutionalized individual rights, or how a judge applying his approach should handle precedent enshrining those individual rights. This has been a persistent problem for originalists of all stripes. Second, and more fundamentally, Easterbrook’s approach doesn’t appear to be originalism anymore. As originalists depart from text, they depart altogether from original intent. Easterbrook’s application of his ideas to three unwritten constitutional doctrines—the intergovernmental tax immunity, anticommandeering, and sovereign immunity doctrines—drives this point home, illustrating that the Framer’s original intent about the content of any doctrine, even doctrines that existed in the Framer’s times, matters very little to the judicially active, majoritarian approach offered by Easterbrook in this lecture.

But maybe originalism will benefit from this change of character. Easterbrook’s approach, by departing from text and original intent, justifies its substantive doctrinal goals with reasoning similar to other modern approaches to constitutional interpretation—reasoning about whether something is a good or desirable way to govern given the modern expediencies of American society. In contrast to the no compromises approach originalists have taken for many years, Easterbrook’s approach signals originalism’s move toward a more forward looking, participatory role in ongoing debates about the Constitution, the courts, and modern republican democracy.

Part I of this review presents Judge Easterbrook’s clear yet careful explanation of a modern originalist approach to judicial review. Part II offers two criticisms of this approach, noting that Easterbrook’s originalism still does not account for individual rights and generally doesn’t seem to be originalism at all. Part III elaborates on this second criticism, using Easterbrook’s discussion of the intergovernmental tax immunity, anticommandeering, and sovereign immunity doctrines to show how little original intent has to do with Easterbrook’s approach to the content and substantive application of a particular doctrine. Finally, I conclude with my view that this change may give originalists common ground with other modern, relativist approaches to the Constitution and foster discourse rather than further entrench competing theorists.

And here is a link to the video of Judge Easterbrook's lecture.