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37 posts from January 2020

01/31/2020

Judge Amul Thapar & Joe Masterman on Lawrence Lessig's Fidelity & Constraint
Michael Ramsey

Recently published, in the Yale Law Journal, Judge Amul Thapar (U.S. Court of Appeals, Sixth Circuit) & Joe Masterman: Fidelity and Construction  (129 Yale L.J. 774 (2020)) (reviewing Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution).  Here is the abstract:

Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” Lessig observes that judging is defined by two principles: fidelity to meaning and fidelity to role. To determine meaning, he argues, judges should engage in a two-step process: first determine the original meaning of the provision at issue, then translate that meaning into the modern context. But he also suggests that meaning should sometimes give way to other considerations—that balancing fidelity to meaning and role might sometimes require judges to compromise one to further the other.

We agree with Lessig about the basic nature of these two fidelities, but not about their relationship. Fidelity to meaning and fidelity to role are not in tension—they are complementary. Fidelity to role should never override fidelity to meaning. But it can inform what it means to be faithful to meaning. An originalist understanding of the judicial role may itself show how a judge should construe an underdeterminate constitutional provision.

This Review explores what the original understanding of the judicial role can tell us about how to construe such provisions. Specifically, it considers whether, as an originalist matter, judges should construe underdeterminate provisions against government action (that is, apply a presumption of liberty) or in favor of government action (that is, apply a presumption of democracy). After reviewing the debates between the Federalists and Anti-Federalists, as well as debates at the Constitutional Convention, we tentatively propose that judges should apply a presumption of liberty in cases about federal power but a presumption of democracy in cases about state power. Our primary hope is to suggest a direction for further historical analysis.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")

 

01/30/2020

Mark David Hall on Espinoza v. Montana Department of Revenue
Michael Ramsey

At Law & Liberty, Mark David Hall (George Fox University, Politics): Can Blaine’s Descendants Block School Choice?  From the introduction:

Last Wednesday, the United States Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue. The case has many moving parts, but at its core, it requires justices to determine if a state may discriminate on the basis of religion. The litigation centers on Montana’s Blaine Amendment—a constitutional amendment which forbids state funds from going to religious organizations; but this is a Blaine Amendment with an interesting twist.

Blaine Amendments: Born in Anti-Catholic Bigotry

In his wonderful book Separation of Church and State, Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. As I have noted in this space, in the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.

At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments, and Congress sometimes required states admitted to the Union after 1875 to include Blaine Amendments in their constitutions. Such was the case with Montana.

...

There are excellent reasons to conclude that anti-Catholic animus was a driving force behind this amendment. But here is the twist: in 1972, Montana held a convention that revised its constitution, and the state’s voters approved it in the same year. In doing so, they reauthorized the amendment, adding only a line stipulating that it “shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.” There is little evidence that these convention delegates or voters were motivated by anti-Catholic animus.

I think Espinoza is a difficult case for originalists. But I also think speculation about the motives of the ratifiers of the original Montana constitutional amendment or its 1972 reenactment is unproductive and beside the point.  The question should be whether the Montana constitution actually "prohibit[s] the free exercise [of religion]." That does not turn on the motive of the provision; it turns on the effect.  If the provision prohibits the free exercise of religion, it is unconstitutional irrespective of its motive.  Similarly, if it does not prohibit the free exercise of religion, it is constitutional irrespective of its motive.

01/29/2020

State Criminal Laws Applied Against Federal Officials From Day One
Andrew Hyman

As Professor Alan Dershowitz showed during President Trump’s impeachment trial, it is a tough question whether impeachment articles can constitutionally allege  only behavior that was never covered by any criminal law statutes.  I’m not really 100% sure of the answer, and do not claim expertise about it.   But I would like to criticize one particular argument that is all over the place right now: that the framers could not have meant to refer to pre-existing criminal law statutes regarding bribery and the like, because such federal statutes did not exist yet when the Constitution was written and ratified.  To me, that seems like a poor argument, because federal officials were subject to state criminal law from the day the Constitution took effect.

George Washington took his first presidential oath of office on April 30, 1789 in New York.  That’s where the federal government was headquartered until its seat moved to Philadelphia in 1790.  According to the federal Residence Act, Philadelphia served as the capital between 1790 and 1800 while Washington, D.C., was being prepared.  The framers of the Constitution almost certainly foresaw that the federal government would operate within a state, before it could move to a permanent seat of government under its exclusive control, and of course that is what happened.

Maybe the most famous example is a Pennsylvania law (the Gradual Abolition Act enacted in 1780), providing that any slave who entered Pennsylvania with an owner and lived there for more than six months would become free automatically. This law did not exempt President Washington and his slaves, so every six months Washington arranged for each of his slaves to go out of the state, essentially resetting the clock.  Washington obviously would not have done that if he thought he was above Pennsylvania law.

A few days ago, former federal prosecutor Jill Wine-Banks said on MSNBC what many other pundits have said this month: “Other high crimes and misdemeanors are exactly that. It isn’t under the federal statutes that they were talking about. Bribery isn’t under the federal statute because there was no federal bribery crime when the Constitution was passed. It was whatever people thought it was” (emphasis added). More likely, it was whatever state statutes in the 1780s universally said it was.  State laws were binding on federal officials when the Constitution took effect, at least to the extent that federal law did not contradict them.

I am fairly sure that impeachment articles may allege behavior that is not (and never was) barred by any statute, as Jill Wine-Banks said.  But I am also leaning toward the idea that at least one of those allegations must be punishable by criminal law.  After all, the Constitution says: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”  An impeachment that involves absolutely no potential criminal law liability whatsoever is unusual, and possibly unconstitutional.

UPDATE: Michael Ramsey previously wrote on this blog: “Some of the more likely presidential violations, such as declaring war without Congress' approval or spending money without an appropriation, do not seem to have any obvious checks aside from impeachment, and yet aren't likely to be criminalized.”  But haven’t they been criminalized?  Unauthorized warfare is murder, and unauthorized spending is theft.

Ilya Somin & Shelley Ross Saxer: Knick v. Township of Scott and the Doctrine of Precedent
Michael Ramsey

Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) and Shelley Ross Saxer (Pepperdine University School of Law) have posted Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent (Fordham Urban Law Journal, Symposium on Knick v. Township of Scott, forthcoming) (60 pages).  Here is the abstract:

The Supreme Court’s decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court.

Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick’s overruling of Williamson County was amply justified under the Supreme Court’s established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist.

Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick’s rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court’s decision to reverse it rather than keeping it in place out of deference to precedent.

Part II shows that Knick’s overruling of Williamson County was amply justified based on the Supreme Court’s existing criteria for overruling constitutional decisions, which may be called its “precedent on overruling precedent.” It also addresses Justice Elena Kagan’s claim, in her Knick dissent, that the majority’s conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern “living constitutionalist” theories of precedent. Here too, it turns out that overruling was well-founded.

Other recent decisions reversing established precedent may be more troubling. But Knick was amply justified.

01/28/2020

Textualism and Title VII (Again)
John Vlahoplus

Consider a rule forbidding opposite sex massages in a massage parlor because they involve too great an intimacy between the sexes.  An owner hangs two separate duty rosters.  The first lists all of the female employees and is titled “Available to massage female clients.”  The second lists all of the male employees and is titled “Available to massage male clients.”  One interpretation is that the rule is facially neutral.  It equally forbids males to massage females and females to massage males.  As the employer in Zarda argues:  “Neither sex is favored over the other.” 

A masseuse objects that the rule discriminates against her because of her sex.  If she were male, she could continue to massage male clients.  The owner responds patiently:  “You are mistaken.  The rule does not refer to your sex.  It refers to ‘opposite sex.’  Your objection changes two factors:  your sex from female to male, and the massage from opposite sex to same sex.  The very aim of the rule is to prevent too great an intimacy between the sexes.  To isolate your sex we must keep the massage opposite sex.  The proper comparison is to a male massaging a female, which the rule equally forbids.  See?  The rule doesn’t discriminate at all.”

A textualist might object that the text of Title VII does not forbid favoring one gender over the other or exempt discrimination based on good intentions.  It forbids the employer to “classify his employees … in any way which would deprive or tend to deprive any individual of employment opportunities … because of such individual’s … sex” unless sex is a bona fide occupational qualification for the position.  The textualist might ask:  “What do your rosters do if not classify your employees by sex?  What does that classification do if not deprive each individual employee of the opportunity to massage some of the parlor’s clients?”  The textualist might reason that the “equal” right to massage only members of your own sex explicitly discriminates against each employee because of such employee’s sex.

If the second interpretation is correct, a “no same sex massage” rule would also discriminate against each employee because of the employee’s sex.  So would a “no same sex orientation” rule, which necessarily classifies employees by their sex: only men can love women, and only women can love men. 

Which interpretation of Title VII is correct?  The first, which is based on gender favoritism?  Or the second, which is based on individual protection?  Textualism and Title VII (here) (forthcoming in the Wake Forest Law Review Online), considers the question in the context of the Supreme Court’s pending LGBTQ discrimination cases.  It provides additional textual support for the second interpretation.  It considers early “same gender” and “opposite sex” rules challenged under Title VII to illustrate the discrimination inherent in them.  Finally, it cites previously overlooked briefing and oral argument in Dothard v. Rawlinson to show that all eight of the Supreme Court Justices who reached the issue held that the second interpretation is correct.  It concludes that the Court should rule for the employees and leave the balancing of competing individual and governmental interests to congressional legislation or further development by lower courts.

Justice Gorsuch on "Nationwide" Injunctions
Michael Ramsey

Concurring in the issuance of a stay in Department of Homeland Security v. New York, Justice Gorsuch (joined by Justice Thomas) had bad things to say about so-called nationwide injunctions: 

On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.

...

... The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.

Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.

Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III. See Trump v. Hawaii, 585 U. S. ___, ___ (2018) (THOMAS, J., concurring); Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 471–472 (2017) (Bray); Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 523–527 (2016).

It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal. Universal injunctions have little basis in traditional equitable practice. Bray 425–427. Their use has proliferated only in very recent years. See Trump, 585 U. S., at ___–___ (THOMAS, J., concurring) (slip op., at 8–9). And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions. Bray 461–462. ...

01/27/2020

John Yoo on Impeachment and the Founders
Michael Ramsey

At National Review, John Yoo: What the Founders Told Us about ‘High Crimes and Misdemeanors’.  From the introduction:

The first week of the impeachment trial of Donald Trump focused on whether the Senate would call witnesses such as former national-security adviser John Bolton and Joe and Hunter Biden. But while they would attract lots of commentary and speculation, any new witnesses would not materially affect the final verdict. The critical constitutional question, which both parties have so far failed to persuasively answer, is this: Did the president commit a “high crime or misdemeanor” that justifies removal from office? And both the House accusers and the Trump defense team have sought to answer that question, upon which all depends, by reversing the polarity of their traditional constitutional positions. ...

Today’s Democrats have probably never signed a document so replete with quotations from The Federalist Papers and the Constitutional Convention as the House Judiciary Committee’s December 13, 2019, impeachment report. Democrats suddenly favor the Founding because it lends some support to their claim that the standard of “Treason, Bribery, and other high Crimes and Misdemeanors” for presidential impeachment includes conduct that falls short of federal crimes. They are surely correct about the broad scope of impeachable offenses. Impeachment exists for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with particular propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

In particular, the House impeachment report argues that the “high Crimes and Misdemeanors” standard encompasses three types of offenses that are not in themselves criminal: “abuse of power,” “betrayal of the national interest,” and “corruption of office or elections.” ...

And from later on:

Trump’s defense team, meanwhile, has erred even more egregiously in the opposite direction. While the White House has broken all records in appointing originalist judges, its defense team has adopted a non-originalist approach that could have made Justice William Brennan chuckle. “By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law,’” proclaims President Trump’s January 20, 2020, Trial Memorandum, without producing any statement from a leading Founder, during the drafting or ratification of the Constitution, that limits “high Crimes and Misdemeanors” to criminal acts. ...

Instead, the president’s team makes arguments on the meaning of “high Crimes and Misdemeanors” that resemble the methods used by the justices who have steadily expanded individual rights in ways that offend conservatives. For example, Trump’s brief relies heavily on our present-day understandings of the relationship between the president and Congress, and on the impeachments of Andrew Johnson and Bill Clinton. Any good originalist would concede, however, that precedent from 80 or 210 years after the Founding cannot reflect the original meaning of the constitutional text, and that a defense of Trump that relies solely on impeachment’s potential to weaken the presidency cannot overcome the explanations of the meaning of “high Crimes and Misdemeanors” offered by the Founders themselves during the battle over the Constitution’s ratification.

And on the merits:

... An initial close reading of the Constitution’s text suggests that “other high Crimes and Misdemeanors” must have a similar nature to “Treason” and “Bribery,” since they are included in the same list and, crucially, linked with an “other.” If the clause had read “Treason, Bribery, and high Crimes and Misdemeanors,” without the “other,” the scope of offenses covered by impeachment might be much broader. Other parts of the Constitution reinforce the idea that the phrase “high Crimes and Misdemeanors” limits impeachment to serious offenses. Article I immunizes members of Congress from arrest when Congress is in session except for “Treason, Felony, and Breach of the Peace”; it seems that felonies or breaches of the peace do not amount, alone, to “high” crimes. Article IV requires states to extradite fugitives charged with “Treason, Felony, or other Crime.” This approach does not answer the question of what treason, bribery, and other high crimes and misdemeanors should have in common, only that we should read the catch-all as including only offenses of a similar gravity.

Where the Framers discussed high crimes and misdemeanors, they cited examples of abuse of power that harm the nation at a level as serious as Treason and Bribery. At the Constitutional Convention, Madison discussed cases that would require presidential removal. “Some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate,” he declared. He did not believe that elections held every four years would provide a strong enough safeguard. “[The president] might lose his capacity after his appointment,” Madison worried. Or worse yet, “he might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Edmund Randolph supported his fellow Virginian because “the Executive will have great opportunities of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.” Without impeachment, Randolph predicted, the people would have to resort to “tumults & insurrections” to turn out such a president.

(Thanks to Andrew Hyman for the pointer.)

01/26/2020

Federalist Society Anti-Federalist Conference
Michael Ramsey

Yesterday I attended this outstanding conference organized by the Federalist Society on (appropriately) the Anti-Federalists.  This was the program:

Panel 1: The Anti-Federalists at the Founding 

9:30 AM - 11:00 AM

This panel will focus on the historical backdrop of the Founding. We all know about the Federalist Papers. Many have read Max Farrand’s The Records of the Federal Convention of 1787 or portions of it. But fewer have read the Anti-Federalists’ critiques. This panel will introduce the who, what, when, where, and why of the Anti-Federalists. This panel will also discuss the role of the Bill of Rights in addressing the concerns of the Anti-Federalists and introduce the foundations of the debate on the importance of federalism.

Panelists:

  • Hon. John Bush, United States Court of Appeals, Sixth Circuit (Moderator)
  • Prof. Jud Campbell, Associate Professor of Law, Richmond School of Law
  • Dr. Michelle Kundmueller, Assistant Professor of Political Science, Old Dominion University
  • Dr. Roger Pilon, B. Kenneth Simon Chair, Constitutional Studies, Cato Institute
  • Prof. Michael Rappaport, Hugh and Hazel Darling Foundation Professor of Law; Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law

Panel 2: The Anti-Federalists and Theories of Originalism 
11:15 AM - 12:30 PM

This panel will discuss Anti-Federalist thought and its relevance to theories of originalism. Do the Federalist Papers matter to originalism? If yes, what about the Anti-Federalists? If no, should we also ignore the Anti-Federalists? This panel will focus on scholarly research and academia. 

Panelists: 

  • Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit (Moderator)
  • Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University and Visiting Professor, Georgetown Center for the Constitution
  • Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law
  • Prof. Christopher R. Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law

Lunch & Keynote Address
12:30 PM - 2:00 PM

  • Hon. Andrew S. Oldham, United States Court of Appeals, Fifth Circuit

Panel 3: The Anti-Federalists and the Court 
2:15 PM - 3:30 PM

The third and final panel will focus on the Anti-Federalists today and their relevance to originalist litigation. Last term, the Anti-Federalists played a major role in the outcome of Franchise Tax Board v. Hyatt. Is that a one-off or a sign of more to come? Beyond simply citing the papers as a plea to authority, should courts confronting questions of originalism read the materials underlying Anti-Federalist thought as a way to understand the Constitution? 

Panelists: 

  • Hon. Michael Brennan, United States Court of Appeals, Seventh Circuit (Moderator)
  • Scott Keller, Partner, Baker Botts & Former Solicitor General of Texas
  • Erin Murphy, Partner, Kirkland & Ellis LLP
  • Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

The consensus was that more attention should be, and probably will be, paid to anti-federalist writing in originalist scholarship and advocacy -- at minimum because federalist writing in the ratification debates (and The Federalist in particular) was often a response to the anti-federalists.

01/25/2020

James Freeman on Impeachment History
Michael Ramsey

In the Wall Street Journal, James Freemen: More Fun with Impeachment History (responding principally to this article by Charles Savage in the New York Times).  From the introduction:

On Thursday this column noted the effort to suggest that Alexander Hamilton would endorse the current partisan adventure. But he’s not the only one being posthumously and dubiously enlisted in the anti-Trump campaign.

The basic idea is to suggest that partisan allegations of non-crimes are completely consistent with the history of impeachment. Charlie Savage writes this week in the New York Times:

One precedent — a high-profile case against a former British governor-general in India named Warren Hastings accused of mismanagement, mistreatment of locals and military misconduct — unfolded during the drafting and ratification of the Constitution and was reported in American newspapers.
His chief prosecutor, the famous parliamentarian Edmund Burke, argued that Mr. Hastings’s actions violated the public trust even though they were not indictable. (Mr. Hastings was acquitted, but only many years later.)
The original draft of the Constitution had made only treason and bribery a basis for impeachment. But according to James Madison’s notes of the Constitutional Convention, George Mason brought up the Hastings case and proposed expanding the definition of impeachment to cover something like it. After rejecting the term “maladministration” as too broad, the convention participants decided to add the English term “high crimes and misdemeanors.”

A closer reading of that moment in history shows that Mason only said that Hastings wasn’t guilty of treason, not that he hadn’t committed any crimes. Readers will also note in the relevant passage that Madison explicitly warned against the type of case now occurring in the U.S. Senate. ...

RELATED: Lots of impeachment-related commentary at Volokh Conspiracy, from Josh Blackman (summarizing his op-ed in the New York Times), Ilya Somin and Jonathan Adler in response.  It's mostly pragmatic, though, rather than originalist.

01/24/2020

Darrell Miller: Owning Heller
Michael Ramsey

Darrell A. H. Miller (Duke University School of Law) has posted Owning Heller (University of Florida Journal of Law & Public Policy Forum, Vol. 1, 2019) (17 pages) on SSRN.  Here is the abstract:

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – even if that means rejecting Heller? One thing this new research makes abundantly clear: the Second Amendment is in the Court’s hands. How it develops—for good or ill—will be a function solely of the wisdom with which the Court articulates its mandates.

I think, rather, that the dilemma for originalists is whether to embrace "big-data techniques."  And that is a tough one.

(And as an aside, "faint hearted originalism" as Justice Scalia originally used the phrase did not have anything to do with feeling bound by precedent.  His point was rather a concern that he might not be able to follow originalism if it led to morally problematic results.  Scalia did have a stronger (though somewhat unsystematic) attachment to precedent than some originalists, including Justice Thomas, but he did not attribute it to faint heartedness.)

ANDREW HYMAN adds:  Justice Scalia ultimately repudiated “fainthearted” originalism, saying that, “if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.”