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08/31/2019

Michael Lewis: Protecting Our Constitution Through an Anti-Originalist Interpretive Canon of Constitutional Interpretation
Michael Ramsey

Michael Lewis (Rath, Young and Pignatelli) has posted Evil History: Protecting Our Constitution Through an Anti-Originalist Interpretive Canon of Constitutional Interpretation (University of New Hampshire Law Review, forthcoming) (35 pages) on SSRN.  Here is the abstract:

This review assesses three recent books on the subject of originalism. Each approaches the question of originalism from a different angle. None of the books confronts the raw challenge to the authority of the framers leveled by Justice Thurgood Marshall in his speech upon the bicentennial of the United States Constitution. Marshall argued that the founding generation was too morally compromised, too bereft of information we now have as a result of the existence and experiences of millions of Americans since the close of the 18th century, and too imperfect in their efforts to design a sustainable government, to justify the devotion to their perspective originalism demands. In the face of this critique, originalism, which is a devotional doctrine, and originalists, its devotees, nevertheless insist that we should obey the founding generation and ignore so much that we have learned since, including the “the reality that a nation putatively based on the principle of human equality was actually a prison house in which millions of Americans had virtually no rights at all.” 

Drawing on this and other more complete descriptions of our history, this review demands that advocates for an originalist methodology confront the full brunt of our past, both good and evil. The failure to do so has deep moral, political, sociological and legal ramifications. “Law writes the past, not just its own past, but the past for those over whom law seeks to exercise its dominion.” To the extent that law writes a past that covers-up, papers-over, ignores or subverts the evil aspects of history, it engages in abuses that we would condemn if perpetrated by other nations as denial.

As a methodology, this review rejects originalism as a presumptively justifiable methodology. It goes further. It proposes a canon of constitutional construction that would proscribe the use of originalism in any of its variants unless certain prophylactic historical facts are established or negated by the proponents of any form of originalism. Broadly speaking, this canon would require any party in any litigation or legal dispute seeking to offer or rely upon the perspective of the founding generation in any dispositive fashion to demonstrate that the clause or clauses to be interpreted and the history to be deployed bears no supporting relationship to the evils of our national past and would not further principles underlying those evils. 

Specifically, such a canon would require proponents of the originalism methodology to demonstrate that originalism arguments and evidence should be rejected if they would further original principles that perpetuated the institution of slavery, furthered the expulsion and mass extermination of Native Americans as a national policy, buttressed the terrorism of Redemption upon the collapse of Reconstruction, supported the political and personal subjugation of women and children, or permitted the use of governmental force to suppress political speech in the forms present during any of the historical periods from which the evidence is drawn. If the proponents of originalism are not able to overcome this burden, they must rely upon the many methodological approaches to constitutional interpretation that are not originalism, that have developed over the course of American history, and have been embraced and incorporated into our law without great controversy.

It's not at all clear to me that the last sentence of the abstract follows from the prior analysis.  I would think that the implication of the "evil history" position is that there should not be constitutional judicial review at all (or rather, that there should be constitutional judicial review only as to constitutional provisions not infected by the "evil history").