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10/25/2021

Donald Drakeman on Garrett Snedeker on Donald Drakeman on Originalism
Michael Ramsey

At Starting Points, Donald Drakeman: What Were the Framers Views on Natural Law in Constitutional Interpretation? (responding to this review by Garrett Snedeker of Professor Drakeman's book The Hollow Core of Constitutional Theory: Why We Need the Framers).  From the introduction:

Garrett Snedeker’s thoughtful review of my book, The Hollow Core of Constitutional Theory: Why We Need the Framers, concludes by requesting a follow-up essay. In particular, he asks how my call to bring the Framers’ intentions back into the core of constitutional interpretation relates to what Snedeker, Hadley Arkes, and their James Wilson Institute colleagues call “A Better Originalism.” They argue that today’s “timid, positivist originalism” must boldly embrace the “influence of natural law on our nation’s founding.” Whether their approach is a more-faithful-to-the-founding method of constitutional interpretation by the Supreme Court will depend on the answers to a series of important historical questions.

Their arguments begin on solid historical ground. There is no shortage of references to self-evident truths and natural rights in the founding era. Citing James Wilson’s law lectures, Arkes has pointed out that the “founders recognized that there could . . .  be unjust laws.” Since Wilson was a sitting justice of the Supreme Court at that time, we might have expected him to follow that comment with something along the lines of what “A Better Originalism” urges, which is that the justices must “test the underlying moral justification for why a law exists.” But, instead of pointing to the Court, Wilson said that the people will assess the morality of a law. This presents an important research question.

Do we have strong evidence that the Framers believed that judges would generally be responsible for conforming constitutional meaning to the demands of justice? One answer has been provided by distinguished legal historian R.H. Helmholz, who has shown that the “then-current British and European jurisprudence . . .  held that laws . . .  deemed ‘odious’ because they were unjust or at odds with principles founded upon the law of nature” would be construed narrowly and not extended beyond their terms. Nevertheless, the terms themselves would be enforced as written, despite being in conflict with the law of nature. ...

And in conclusion:

In short, to make the case advanced by “A Better Originalism” regarding the proper role of the Supreme Court in constitutional decision making, there is a great deal of historical work to be done: sources identified and double checked, footnotes written, and assumptions tested. I look forward to reading the results.