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10/23/2019

Stephen Sachs on Justice Story and Originalism
Michael Ramsey

At Volokh Conspiracy, Stephen Sachs: Justice Story on Originalism and Judicial Independence.  Here is the introduction:

A few days ago, looking for something else, I happened across this section of Justice Story's Commentaries on the Constitution. Story defends the independence of the judiciary based on something that sounds surprisingly like originalism. Some particularly interesting passages highlighted:

A number of paragraphs are quoted, followed by an assessment that begins:

I don't know enough about Story to know if this is an anachronistic reading. But the views expressed here certainly sound originalish to me. He says our Constitution isn't "an instrument of flexible and changeable interpretation," but "a settled form of government with fixed limitations"—one that sets out rules for its own alteration, and that makes no legal provision for changes outside these rules. That seems quite compatible with a view that our law is the Founders' law, as lawfully changed.

This seems like the key quote from Story (although there are others as well):

The constitution is the will, the deliberate will, of the people. They have declared under what circumstances, and in what manner it shall be amended, and altered; and until a change is effected in the manner prescribed, it is declared, that it, shall be the supreme law of the land, to which all persons, rulers, as well as citizens, must bow in obedience. When it is constitutionally altered, then and not until then, are the judges at liberty to disregard its original injunctions.