10/24/2018

Lawrence Goldstone on Judicial Review (with my Objections) [Update: and a Response]
Michael Ramsey

In The New Republic, Lawrence Goldstone: How to Fix the Supreme Court: Weaken It.  It begins:

The confirmation of a Supreme Court justice never should matter as much as Brett Kavanaugh’s did, and that’s because the Supreme Court itself shouldn’t matter as much as it does today. That’s the conclusion of many legal observers—me included—after witnessing the partisan warfare in Washington over the past three months. In a New York Times op-ed last week, Pepperdine University law professor Barry P. McDonald wrote that the Kavanaugh hearings reflected the “unfortunate fact” that the “court has become a political actor that wields excessive power in our democracy.” [Ed.:  The McDonald article was noted on this blog here].

I generally agree that the Court has become too important in U.S. governance (though I'm also suspicious of the avalanche of essays making this point in left-leaning publications just after a right-leaning majority appears to be emerging on the Court; where have these writers been for the last 30 years while this problem has been developing?).  More in my area of interest, however, is the article's claim that judicial review was not part of the original Constitution:

[T]he greatest source of the Court’s current sway is judicial review, the power to declare a law void if the justices see it as being in conflict with the Constitution—a right granted to it nowhere in the Constitution.

While there was a good deal of discussion in Philadelphia about Supreme Court justices participating in a “council of review,” there was no serious proposal to grant the courts the power to determine the constitutionality of laws passed by Congress. In the ratifying debates, it was again largely those delegates who had opposed the Constitution, such as George Mason of Virginia, and Maryland’s Luther Martin, who predicted that the Supreme Court would seize such a role.

That’s precisely what Chief Justice John Marshall did, pretty much out of whole cloth, in 1803 in Marbury v. Madison. Although Marbury is often the lead case in Constitutional Law textbooks because it established the precedent for judicial review, scholar Leonard Levy characterized Marshall’s decision as “rampaging activism,” and “one of the worst opinions ever delivered by the Supreme Court.” Still, Marbury passed seamlessly into American jurisprudence and has since become the cornerstone of judicial power.

As regular readers know, this is something of a pet peeve of mine.  I think it very well established -- both in the Constitution's text and in contemporaneous commentary -- that judicial review was part of the original design and emphatically not something made up by John Marshall in Marbury.  

Without going into all aspects of the argument, just consider the text.  Article III, Section 2 says that "the judicial power shall extend to all Cases ... arising under this Constitution..."  What could these cases possibly be, aside from cases in which the judiciary is asked to find actions of the legislative or executive branches of the states or the federal government unconstitutional?  A case would not "arise under this Constitution" unless the Constitution could provide a remedy for the litigant. And since the U.S. Constitution is a limit on governmental power, the only way it could provide a remedy is if the courts found that a government action was contrary to the Constitution.

As to contemporaneous commentary, two of the best writers on the Constitution in the ratification debates -- especially on judicial power -- were Alexander Hamilton in the Publius essays and the anti-federalist Brutus.  Goldstone's essay discusses both at some length but elides the point that both thought judicial review was part of the Constitution's original design (Brutus worried about it; Hamilton defended it).  Brutus wrote (in essay XI), exactly in the terms of the textual argument above: 

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing.

The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it.

This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

Brutus thought this problematic, because there was no check on the judicial branch, and so "This power in the judicial, will enable them to mould the government, into almost any shape they please."

Hamilton, replying in Federalist 78, strongly defended judicial review:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

And further:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. ...

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .

(Marshall repeated the core of these arguments in Marbury, though without attribution).

Hamilton thought this power in the courts was not a problem because, as he famously wrote, the judiciary has "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment."

As Goldstone says, Brutus' fear turned out to be well-founded in the long run.  But that doesn't show that judicial review was not part of the original design.  Rather, the Brutus-Hamilton exchange shows that judicial review was understood as a core part of the Constitution from the beginning, as the text itself indicates.  Brutus and Hamilton drew different conclusions about the dangers of a Constitution that provided for judicial review, but neither had any doubt that the Constitution provided for it.

UPDATE:  Lawrence Goldstone responds:

First, thank you for comments that were measured and thoughtful, rather than shrill and belittling.  We’ve got far too much of that.  The problem for me with originalism is that it often seems to be a rubber yardstick.  Sometimes words have specific meanings and sometimes, as in this case, they don’t.  If you read the Philadelphia debates—or at least Madison’s version—there is nothing that one could conclude was a definitive statement endorsing judicial review.  The final version of Article III is the same.  Now, if you chose to say Article III might endorse judicial review, or could be interpreted to endorse judicial review, I would certainly agree.  But I’m not an originalist.  The phrase “all cases that arise under the Constitution" could easily mean something other than the power to void laws.  And, since I assume you know a lot about Marshall, his father purchased a full set of Blackstone’s commentaries, which became treasured possessions of his son.  So again, is it possible that the delegates, most of whom were fearful of a potent federal judiciary, although never specifically discussing the issue, had some, to paraphrase Justice Scalia, “secret intent?”  Well, yes.  Anything is possible.  But if originalism is to be an honest philosophy and not simply one of convenience, it, I believe, would be forced to reject that notion.

10/23/2018

Prohibiting Court Packing by Constitutional Amendment
Mike Rappaport

Jim Lindgren has proposed a constitutional amendment that would constitutionalize the nine-member Supreme Court. The key language is:

The size of the Supreme Court of the United States shall be nine members, consisting of one Chief Justice and eight Associate Justices, though from time to time one or more of these nine offices may be vacant.

The idea is to create a constitutional obstacle to court packing. I greatly sympathize with this amendment in two ways. First, I think that Supreme Court packing is a very bad thing—one which will eventually be seen as bad even by the people who currently propose it. Once one side packs the Court, the other side will respond in turn. It is only hyperpartisanship and shortsightedness that prevents people from seeing this. Everyone will be better off without court packing, and this constitutional amendment would prevent it.

Second, I strongly believe that constitutional amendments are needed for a workable originalism. If the Constitution is to be updated, constitutional law must change and that should occur through constitutional amendments, not through judicially made-up constitutional law. The alternative to a constitutional amendment in this area is either to allow court packing or to have the Supreme Court declare court packing unconstitutional. While it would seem strange today, I can certainly imagine the Supreme Court declaring a law that expanded the membership of the Court to 13 or 15 members, with all of the vacancies to be filled by the President and Senate at the time, to be unconstitutional. If you can’t imagine it, read some high court decisions from other countries, such as India.

Yet I do have a reservation about the amendment. It locks in the existing nine-member Supreme Court, and that might not be a good idea. Who knows how ideas about the appropriate size of the Court may change over time. There is another way to block court packing without that lock-in. Instead of a blanket ban, we could pass a constitutional amendment that permits laws to change the size of the Court only if those changes do not take effect until 20 years after passage. (I would be willing to consider 10 years as an alternative.)

Because people cannot predict which party will have a majority on the Court or will control Congress and the Presidency, these laws would allow changes in the size of the court without permitting court packing. But while I prefer this alternative to Lindgren’s, I still support Lindgren’s over the existing arrangement.

Ilya Somin argues on Twitter that the left will not accept this proposal. One possibility is to combine this with another of Lindgren’s proposals – to have 18-year term limits on the Supreme Court.  I support the term limits proposal as well, and so would be happy to see them combined. Somin, however, argues that this won’t be sufficient to get the left to support the proposal.

He may be right, but so what? Constitutional amendments are often not short-term fixes but longer-term solutions that require a while to secure the necessary support of the country. Let the amendment be debated in Congress, talked about throughout the country, and be supported by some state legislatures. Then, if the Democrats attempt to pack the court, the country will see the problem up close. And if the Democrats do not succeed, the amendment might pass at that time.

I would rather wait for the country to see the value of the amendment than to include a sweetener that is a bad provision and that blemishes the Constitution.

Aziz Huq on Removing Justice Kavanaugh
Michael Ramsey

From the Washington Post last week, Aziz Huq (Chicago): Two ways Democrats can remove Kavanaugh — without impeaching him.  (At first I thought this was a parody that Professor Huq cleverly suckered the Post into publishing, but the University of Chicago website is promoting it like a serious article).  Here is the first way:

[A] Democratic Congress and a future Democratic president could still remove Kavanaugh from the Supreme Court if they wanted without needing to impeach him. There are two other ways to kick a sitting justice off the court — neither of which requires a supermajority.

In the first, a new president would nominate and the Senate would confirm by majority vote a justice — in this case Kavanaugh — to a different post on an intermediate court of appeals (say the D.C. Circuit, where Kavanaugh formerly served). The justice would, in effect, be demoted.

The move is admittedly unprecedented at the Supreme Court level. But it finds support in an 1803 Supreme Court case called Stuart v. Laird. The fading Federalist Party of John Adams had created 16 new federal judgeships in 1801 — in part to spare Supreme Court justices from having to “ride the circuit” and hear regional appellate cases. Thomas Jefferson’s Democratic-Republicans triumphed at the polls and abolished the new positions in 1802. A litigant who had a case before one of those defenestrated judges sued.

And the second way:

That brings us to the second alternative method of relieving a justice of his or her duties. In a 2006 article in the Yale Law Journal, two scholars (conservatives, as it happens), Saikrishna Prakash and Steven D. Smith, amassed historical evidence that the Framers understood the “good behavior” standard to be judicially, rather than just politically, enforceable. 

...

As (roughly) proposed in the Yale article, Congress could pass a statute authorizing a specially constituted bench of federal judges — say, five randomly drawn judges — to determine whether a particular judge (here, Kavanaugh) had violated the “good behavior” standard. That special bench could hold a hearing and, if convinced by the evidence, make the requisite finding to trigger exit from the bench. This approach wouldn’t require a congressional supermajority. It would need a presidential signature.
 
Assuming this is a serious article, here are the obvious responses:
 
(1) Nothing in the Constitution suggests that a person nominated for a position must accept it.  In the early post-ratification period, Presidents commonly ran into the problem that their proposed nominees declined the position; no one suggested the nominees had a constitutional duty to accept.  Plus, even if Justice Kavanaugh accepted (re)appointment to the D.C. Circuit, that wouldn't remove him from the Supreme Court; it would give him two positions.  Stuart v. Laird, cited by Professor Huq, does not even begin to suggest otherwise.  The case, as he says, held that Congress could assign "circuit riding" duties to Supreme Court Justices.  It did not say that by assigning circuit duties to Justices, it made them no longer Justices.  It said that Congress could give them additional duties beyond sitting on the Supreme Court.  (And in even engaging this argument, I'm making the very generous assumption that Congress could vary the duties of  a single Justice by name, rather than varying the duties of the office of Supreme Court Justice, as in Stuart).  In short, the idea that a Justice can be "removed" by appointing him to a different office against his will is just silly, on multiple dimensions.
 
(2) I like the impressively contrarian article by my colleague Steven Smith and my sometime co-author Saikrishna Prakash, cited by Professor Huq.  But even if it's right, it doesn't show what Professor Huq thinks it shows, for a simple reason: under Article III, Section 1, Justices "shall hold their Offices during good Behavior."  As the Prakash/Smith article makes clear, the idea (consistent with the plain text) is that a Justice may forfeit the office by bad behavior after appointment.  As they say, "A forfeiture proceeding [such as they propose] determined whether someone had violated the conditions of his tenured grant." [p. 111, n. 157].  That is, the condition of tenure is good behavior while in office.  So even if Justice Kavanaugh were shown to have engaged in bad behavior  prior to appointment, that would not amount to violation of his duty to engage in good behavior in office.  He is entitled to hold his office "during" good behavior; so as long as his behavior in office is good, he cannot be removed under this procedure, whatever he may have done previously.  And you don't have to read the 60+ page Prakash/Smith article to see this -- all that's needed (as Justice Kavanaugh himself might say) is close attention to the constitutional text.

10/22/2018

An Important Difference Between Historians and Originalist Law Professors
Mike Rappaport

Recently, I was having a discussion with a law professor who looks at matters from a historical perspective. While such law professors are not professional historians, many of them have adopted the historian's perspective. During our discussion, one aspect of the dispute between historians and originalist law professors became crystal clear.

When historians are making claims about the original meaning, they look at the matter, naturally enough, from a historian’s perspective. There will be several possibilities.

  1. The matter was discussed and there was a dominant opinion on it.
  2. The matter was discussed and there was no dominant opinion. Instead, there was a relatively even split of opinion on the matter.
  3. The matter was not discussed at all or rarely discussed.

When confronted with these circumstances, the historian tends to view only case 1 as having an answer. The reason I think is straightforward: the historian is attempting to report the past and there is only evidence from the past of an answer as to 1.

Case 3 involves a situation where the past does not tell us anything (except that the matter was not considered). Case 2 involves a situation where the past tell us there was no clear answer. We certainly cannot report that the past has an unambiguous answer as to 2.

The originalist will view things differently. The reason is that the originalist is not looking for “what the past tells us about a matter.” The originalist is looking for the original meaning. The discussions at the time offer some evidence of the original meaning, but they do not determine the answer to the matter. Thus, the originalist might give different answers than the historian.

In case number 3, the originalist might conclude that one opinion was the original meaning and might even conclude that this is the clear original meaning. People might not have talked about it because the issue did not arise or because the answer was clear. Of course, it is also possible there was no clear original meaning, not because it was not discussed, but because the answer was simply a hard one.

In case number 2, the originalist again might conclude that one of the two contending opinions was the original meaning. Although the Framers’ generation may have been split, one of the opinions may appear stronger to us. In fact, the originalist might even conclude that one of the contending opinions was the clear original meaning. This is, of course, not the result we would expect, because the Framers’ generation was split on the issue. But sometimes this evidence can be outweighed by other considerations. For example, a political party might have adopted a position on an issue because it furthered their political interests, even though the Constitution did not really support their argument. In this situation, the original meaning might clearly support a result rejected by one of the political parties.

What about case number 1? In this case, I admit I would be reluctant to conclude that the original meaning (or the clear original meaning) went against the consensus at the time. But, of course, it might be possible in an extraordinary situation.

In the end, there is a difference between “what the past is telling us” as understood by the historian and “what the original meaning is” as understood by originalists. It is important to keep this distinction in mind when reviewing debates between historians and originalists. Originalists are happy to consider what historians say about matters, but we should remember that often historians have a different objective than originalists do.

Jonathan Gienapp on the Un-Fixed Constitution
Michael Ramsey

In the Boston Globe, Jonathan Gienapp (Stanford history): Originalism is the rage, but Constitution’s authors had something else in mind.  From the introduction: 

Originalism continues to surge in popularity, winning converts across the federal judiciary, law school faculties, and the political ranks, while the Supreme Court often decides cases based ostensibly on what the Constitution meant to those who conceived it — most prominently of late in the 2008 Second Amendment case District of Columbia v. Heller. As the Kavanaugh hearings reminded us, Americans’ preoccupation with our Constitution’s birth fuels relentless struggles over the Founders’ intent, the Constitution’s original meaning, and the nation’s foundational values.

Despite this outsized attention, crucial features of the Constitution’s creation remain obscure. It is often assumed that the Constitution was fully created in 1787 and 1788 when it was written and ratified. But when it initially appeared, it was shrouded in uncertainty. Not only was the Constitution’s meaning unclear but, far more significantly, it was unclear what the Constitution itself actually was.

Certain answers might have seemed obvious. For starters, the Constitution was a written text. Unlike the unwritten British constitution that Revolution-era Americans had come of age worshiping — which was an amorphous amalgamation of custom, practice, and tradition — the American Constitution enjoyed an obvious tangible presence. Comprised of seven articles and some 4,000 words, it could be located clearly in space and time. But in 1789, when members of the new federal government began putting the Constitution into effect, this basic description revealed little about the Constitution’s definitive features. No matter the depth of American constitutional debate to that point, there were no easy answers to a host of basic questions that cut to the Constitution’s core. What kind of object was it: a text, a system, a framework, or something else entirely? What defined its character: was it akin to other legal instruments or completely novel in kind? Was it a complete and finished instrument or were subsequent users to fill in its gaps and resolve its contradictions? Was its meaning set in stone or changing? The Constitution was born in flux.

And in conclusion:

When, today, constitutional originalists and living constitutionalists squabble over whether the Constitution’s meaning is fixed or evolving, they illustrate just how enduring this peculiar conception of constitutional fixity has been. It seems impossible to avoid this fundamental choice.

Yet, nothing about the Constitution itself demanded that Americans ever thought of fixity and change as mutually opposed. This choice owes less to the Constitution than an entirely optional way of imagining it, one forged during the decade following the Constitution’s nominal creation. If we look at the early history of the Constitution anew and put aside our obsessive search for an original fixed document, we will find a story about how the Constitution’s first users inadvertently sanctioned a novel idea of constitutional fixity.

If we grasp this hidden history of the Constitution’s creation, we might recognize that we are as free to imagine the Constitution’s possibilities anew as those Americans who first took custody of it so many years ago.

More on this topic in Professor Gienapp's outstanding new book, noted here.

But:  that some constitutional issues were unsettled does not show that all constitutional issues were unsettled.

(Thanks to Andrew Hyman for the pointer).

10/21/2018

James Phillips & John Yoo on Originalism and Common Law Constitutionalism
Michael Ramsey

At NRO, John Yoo and James C. Phillips: A Clash of Judicial Visions.  From the core of the discussion:

These two visions of the courts have given birth to two distinct approaches to judging. The first view mistakenly appeals to the way state judges decide the cases that most Americans encounter: criminal trials, contract and property disputes, and civil lawsuits over accidents. These cases are known to lawyers as the “common law,” which we inherited from Great Britain. Common-law judges are free to create the rules as they see fit. They often exercise the equivalent of legislative power — they are the lawgivers in these areas governed by the states. Importing that model into the federal judiciary creates judges who will not feel themselves bound by the written Constitution or congressional enactment. Supreme Court justices will find themselves tempted to lead the people to where they “should be” rather than where they are. There is nothing to limit a justice but his imagination and his fellow justices. Hence, the great liberal justice William J. Brennan reportedly said that the most important rule in the Supreme Court is the “Rule of Five”: the number of Justices needed to produce a majority, and hence the power to change any law.

The alternative, conservative view sees the judge as an umpire who is as bounded as the judge-as-philosopher-king is free. An umpire-judge relies on a few basic concepts: The law is words, those words have a meaning, and that meaning is fixed at the time the law is enacted. The judge’s job is to figure out what the words meant at the time of enactment. This method of judging is called “originalism” when dealing with the Constitution, or “textualism” when dealing with statutes or regulations. The terms “originalism” and “textualism” are of recent vintage, but the methodology they represent can be traced to the beginning of our nation.

On methodology:

Scholars and jurists can and do disagree about the various ways to get to the original meaning of a legal text. We can determine the common meaning of words to the ordinary person of the time, using dictionaries and examples of usage from the time of the Constitution’s ratification. Massive databases of texts and computer analysis may make this task easier. Another way to get at original meaning is to look through legal materials from that era: cases, treatises, legislative materials, etc. A related technique is to employ the methods lawyers of that era used to determine meaning, such as applying rules (or “canons”) of legal interpretation well-known and used during at the time. [Ed.  Looks like they have been reading McGinnis & Rappaport].  An additional technique is to see what contemporaries thought a constitutional clause meant, using all-important sources such as The Federalist PapersThe Anti-Federalist Papers, and the Constitutional Convention and state ratification debates. Finally, the practices of those closest to the enactment of the legal document may shed light on its meaning. We often look, for example, to the administration of George Washington and the first few Congresses to see if their behavior is consistent with one interpretation of the Constitution or another.

And on justifying originalism:

From a constitutional perspective, originalism is clearly superior to the common-law approach of judges who enact their own policy preferences like a legislator. First, originalism is the only legitimate way for a Supreme Court justice to approach the job. As Alexander Hamilton noted in Federalist No. 78, “courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” Supreme Court justices acting like common-law judges by exercising their will rather than their judgment misuse their judicial power under our Constitution.

Further, common-law judging by federal courts weakens our Republic. It takes away sovereignty from the people and places it in the hands of five justices who, by design, are given political independence. Abraham Lincoln rejected the idea that the people’s sovereignty should rest with the Supreme Court. He famously warned in his First Inaugural Address that, “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Allowing a majority of the Supreme Court to amend the Constitution or a statute is anti-democratic — particularly in the constitutional context. It takes supermajorities of Congress and the states to amend the Constitution, and it took a supermajority of the original 13 states for the Constitution to have been originally adopted. It turns our constitutional system on its end to allow five justices to overrule the will of the overwhelming majority of the people.

10/19/2018

John C. Harrison: The Constitution and the Law of Nations
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted The Constitution and the Law of Nations (Georgetown Law Journal, Vol. 106, No. 6, 2018) on SSRN.  Here is the abstract.

Under the original understanding of the Constitution, customary international law features in the U.S. legal system as general law. It is not law of the United States within the meaning of Articles III or VI of the Constitution, and so does not serve as a basis for federal question jurisdiction or override contrary state law. Under the original understanding, the Constitution does not confer the protections of the international law of state-state relations on either foreign states or governments that have been recognized as such by federal political actors. Congress may confer those protections by statute, but in the absence of statute or treaty, they rest on general law. The Constitution’s text indicates that the laws of the United States referred to in Articles III and VI consist entirely of federal statutes. The Federal Convention’s drafting process indicates that members of the convention had that understanding of the text they produced. That process also indicates that the drafters probably understood the laws referred to by the Take Care Clause of Article II to consist of federal statutes. Prominent figures in the ratification debates treated Articles III and VI as using the term “laws of the United States” to refer to statutes. The First Congress drafted the Judiciary Act of 1789 on the assumption that the laws of the United States referred to in Articles III and VI were federal statutes. During the 1793 prosecution of Gideon Henfield for non-statutory criminal violations of the United States’ neutrality, a number of leading figures took the position that the federal courts could entertain prosecutions under unwritten law. It is unlikely, however, that any of them meant to assert that the law of nations was law of the United States within the meaning of Articles III or VI.

Agreed (mostly).  My view on the topic are here.

New Book: The Second Creation by Jonathan Gienapp
Michael Ramsey

Recently published, by Jonathan Gienapp (Stanford history): The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press 2018).  Here is the book description from Amazon: 

A stunning revision of our founding document’s evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution?

Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the Founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption―a story with explosive implications for current debates over constitutional originalism and interpretation.

When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document’s uncertainty, and―over time―how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution’s most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.

With blurbs from Jack Rakove, Peter Onuf, Mary Sarah Bilder and Saul Cornell.  (And only $23.14!  Why don't law books get such favorable pricing?).

Also, Balkininzation is posting an outstanding online symposium on the book, with contributors Jack Balkin (Yale), Will Baude (Chicago), Mark Graber (Maryland), Steve Griffin (Tulane), Alison LaCroix (Chicago), Sanford Levinson (Texas), Gerard Magliocca (Indiana), Bernadette Meyler (Stanford), John Mikhail (Georgetown), and Christina Mulligan (Brooklyn).  I will post a complete set of links once the contributions are all in.

10/18/2018

Two Videos (Sessions and Roberts)
Andrew Hyman

Here are two very recent videos that both touch upon originalism, from the perspectives of the executive and judicial branches respectively:
 
"Attorney General Jeff Sessions Delivers Remarks at The Heritage Foundation President's Club Meeting" (Oct. 15, 2018)
 
"Chief Justice Roberts Remarks at University of Minnesota Law School" (Oct. 16, 2018)
 
It seems fair to say that Sessions rightly emphasized the independence of the executive branch, while Roberts rightly emphasized the independence of the judicial branch.  

John McGinnis and Eric Segall on Law Students and Originalism [Update: and Tushnet]
Michael Ramsey

At Liberty Law Blog, John McGinnis: Why Law Students Need to Learn More about Originalism.  It begins:

It would be educational malpractice not to teach antitrust law without explaining the consumer welfare model that generates most modern decisions in American competition law. Even if as a scholar you believed that the model was misguided, this would still be true. Law is a professional discipline and students should be prepared for the world as it is rather than what their professors fantasize it could be.

Similarly, it would be malpractice not to describe originalism as an important theory of constitutional interpretation. To be sure, it is not as dominant in constitutional interpretation as the consumer welfare model is in antitrust. But no one could doubt that originalism is growing in importance. First, Court opinions sometimes treat originalist arguments as decisive. Indeed, as even some commentators on the left recognize, it is sometimes essential for progressives to appeal to the purest originalists on the court, like Gorsuch, because they may break with other Republican appointees precisely because of their greater commitment to originalism. As Randy Barnett noted, from his testimony at the confirmation hearings Kavanaugh may well turn out to be a pretty thoroughgoing originalist.

And on issues of first impression, both Chief Justice Roberts and Justice Alito are also tenacious originalists, as the recent concurrence in the recess appointments case showed. Even Justice Elena Kagan claimed to be an originalist in her confirmation hearing, which I took to be a sincere claim that the original meaning figures into her interpretive method, even if it is not the exclusive method even on questions of first impression.

Beyond helping students to be advocates in particular cases, understanding originalism helps explain what is going on at the Court. Informed by originalism, students can comprehend why justices widely perceived as conservatives (like Antonin Scalia) reach results that political scientists code as liberal in important cases, like those related to criminal procedure. Perhaps most importantly, they would understand the underlying methodological battle going at the court — that is, whether or not originalism will be treated as the predominant rule of recognition for what is our fundamental law.

At Dorf on Law, Eric Segall responds: Originalism in the Classroom? From the core of the argument:

First, to teach that Justices Scalia or Thomas, or the Court as an institution, has ever embraced originalism seriously would in fact be malpractice. As I've documented many times, and explain in Chapter 7 of my book, Scalia and Thomas have voted in a non-originalist manner throughout constitutional law including in the areas of affirmative action, campaign finance reform, takings, standing, federalism, first amendment, and virtually every other area of litigated constitutional law. As to Scalia, if you don't believe me, trust Randy Barnett on this point.  And if you believe Barnett, well Thomas and Scalia voted the same way in most (not all) constitutional law cases. To both of them, the Constitution is/was alive and kicking. I think most law professors already know this and teach accordingly.

Professor Michael Rappaport has suggested to me that many of my public statements critical of originalists deal with judicial originalism, not what he calls "academic originalism." I'm not sure that's fair, but let's assume a constitutional law professor teaching the basic con law course wants to teach originalism as part of her course. The question would be: whose originalism?

Larry Solum is a well known originalist who testified in the Gorsuch hearings and has written thousands of pages on the subject. He  has not yet, however, applied his theory to actual cases (really). So that seems like somewhat of a dead end for a survey course. I would assume Robert Bork's writings would be part of any originalist materials, except few originalists today agree with his method that included a heavy does of judicial restraint (same with Raoul Berger and Lino Graglia). Those Original Originalists simply don't seem to matter much anymore (to my chagrin).

Ilya Somin and Steven Calabresi urge a form of originalism that they claim justifies the Court's decisions overturning same-sex marriage bans, but many other originalists such as Michael Paulsen think that conclusion is, well, not only not originalist, but comparable to Dred Scott. Randy Barnett and Ilya Shapiro would like to overturn much of the administrative state through their brand of originalism via "judicial engagement", though Michael McConnell would absolutely deny judges that role under his version of originalism. Meanwhile, Will Baude and Steve Sachs think originalism is already our law (including cases like Brown and Obergefell), Most originalists today do not agree with that view.

The reality is that there is no one, two, or even three forms of "originalism" today, which is why my book spends a lot of time talking about the Original Originalists, the New Originalists, and the New New Originalists, and many in between.

UPDATE:  Mark Tushnet has these comments at Balkinization:  Originalism as Performed by the Supreme Court.  From the introduction:

Eric Segall has an interesting post on "Originalism in the Classroom?" I thought it might be interesting to try to figure out how one might teach originalism in a standard doctrinal course on the First Amendment. My text is Justice Alito’s discussion of the respondent union’s “originalist defense” in the recent Janus decision.

What follows is pretty harsh, but I agree; Janus was not, in my opinion, originalism's finest moment.  But the selection does not appear very fair to originalism, because I don't regard Janus as typical of originalist Supreme Court opinions, and I doubt Professor Tushnet chose it at random.  Perhaps he could balance it with an opinion like Justice Scalia's concurrence in Noel Canning, which (agree with it or not) I think is much more typical of originalist judicial reasoning.

Though I generally agree with the post, I think Professor Tushnet is wrong on one point.  He criticizes the Janus majority for appealing to precedent:  "Strictly speaking, originalism as such shouldn’t care about the consequences of following the historical materials where they lead. But, perhaps there is some “consequences matter” constraint on originalism. The usual example is paper money. One might expect, then, a discussion of why these consequences of originalism are more significant than other consequences, for example, in Heller."  But most versions of originalism allow some role for nonoriginalist precedent.  The routine criticism of originalist judges for incorporating precedent (mostly from the left) persistently and irresponsibly ignores this aspect of judicial originalism.  (But, I would agree that judicial originalism needs a better theory of precedent).