Ilan Wurman on Hyatt and Sovereign Immunity
Michael Ramsey

At Law & Liberty, Ilan Wurman (Arizona State): Originalism and Sovereign Immunity.  From the core of the argument:

... I agree that the Court has indeed messed up sovereign immunity doctrine. But, as I explain in my book, A Debt Against the Living: An Introduction to Originalism, the results in most of these cases are consistent with both textualism and originalism (to the extent those are different methods).

The mistake that both the Supreme Court and the opponents of its sovereign immunity cases make is to presume that the answer to this specific question must be found in the Constitution. This gets the Constitution backward. The Constitution was not adopted on a tabula rasa, but rather atop many layers of preexisting law. Sovereign immunity—the immunity of the state from a suit for money damages in court without its consent—was part of that law. As Caleb Nelson has written, sovereign immunity was part of the common law of personal jurisdiction: a court simply could not exercise power over the body of the King or the state because there was no way to force them into court or to pay money from the treasury. James Iredell in 1793 explained that this sovereign immunity was part of the law of every state of the Union prior to the adoption of the Constitution. Therefore, if nothing in the Constitution itself abrogates that immunity or gives Congress the power to abrogate it, then the states’ immunity remains intact.

On the key cases involving Congress' abrogation of sovereign immunity:

The question thus boils down to whether abrogating sovereign immunity is a sufficiently “small” power such that Congress can do it [via the necessary and proper clause] to effectuate its other enumerated powers, or whether it is a “great substantive and independent power” that must be expressly enumerated. I am not sure the answer must be that it is the latter, but certainly the way the Founding generation viewed sovereign immunity (see their reaction to Chisolm) suggests the power to abrogate it was indeed thought to be a great and substantive power that could not be left to implication. If that’s right, then Seminole Tribe and Alden v. Maine are easy cases.

Finally, on Hyatt:

This brings us finally to Hyatt, which did not involve Article III, the Eleventh Amendment, or Congress’s enumerated powers. The Supreme Court nevertheless held that the Constitution grants the states immunity even in suits in the state courts of other states. This is a mistake. Again, the Constitution does not grantsovereign immunity to anybody. Sovereign immunity was already out there—a constitutional backdrop, as William Baude has explained—that the Constitution left in place. How, then, are we to analyze a suit against one state in the courts of another?

As Professors William Baude and Stephen Sachs explained in a friend of the court brief, the answer is likely that the Constitution leaves this entirely to the states. The state in which the suit is proceeding may by comity afford immunity to a sister state; but if it doesn’t, then the defendant-state may nevertheless refuse to enforce the judgment. This would effectively lead to the result in Hyatt in the sense that a state could ultimately maintain its immunity, but it would be up for the states themselves to work that out. This approach may not answer all the relevant questions, but it is plausible and workable.

The full post is an outstanding concise explanation of why the Court's sovereign immunity cases (apart from Hyatt) are defensible as a matter of originalism and textualism, but that Hyatt isn't.  It's exactly what I think (but he says it much better).


Seth Barrett Tillman on George Washington and Foreign Emoluments
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: General George Washington and the Bank of England.  From the introduction (footnotes omitted):

There is substantial evidence to support the inference that Washington, for one, did not view “private business pursuits . . . with foreign state-chartered trading companies” as emoluments. During the Revolutionary War, George Washington owned stock in, and received dividends from, the Bank of England. This foreign corporation received its charter by operation of an act of the English Parliament: the Tonnage Act of 1694. The Bank of England, which was analogous to the first Bank of the United States, served as the private banker for the British Exchequer. More importantly, the Bank of England was analogous to the foreign government “instrumentalit[ies]” that Plaintiffs [in the emoluments litigation] allege Trump-affiliated commercial entities are doing business with.

At the relevant times, the Articles of Confederation governed our young republic. That charter included a Foreign Emoluments Clause, which provided “[N]or shall any person holding any office of profit or trust under the United States, or any of them [i.e., any State], accept of any present, emolument, office or title of any kind whatever from any King, Prince or foreign State . . . .” Furthermore, the Continental Congress had chosen Washington as the commander-in-chief of the nation’s armed forces. As an appointed military officer, he held an “office . . . under the United States,” and could not “accept of any . . . emolument” from a “foreign State.”

This is an excerpt from the amicus curiae Brief of Scholar Seth Barrett Tillman and Judicial Education Project Support of the Defendant’s Supplemental Brief in Blumenthal v. Trump (Civ. A. No. 1:17-cv-01154-EGS) (D.D.C.), available in full here.


Michael Pardo: Confrontation After Scalia and Kennedy
Michael Ramsey

Michael S. Pardo (University of Alabama School of Law) has posted Confrontation After Scalia and Kennedy (Alabama Law Review, Vol. 70, 2019) (29 pages) on SSRN.  Here is the abstract:

This symposium essay discusses the recent history and current state of the Confrontation Clause and then explores its possible futures. Justice Scalia’s 2004 opinion in Crawford v. Washington transformed confrontation doctrine and consequently rendered many types of hearsay statements potentially inadmissible in criminal cases. Although Crawford strengthened the right to confrontation in several respects, the subsequent decade produced significant backlash and disagreements—including dissenting opinions from Justice Kennedy—as the Court attempted to implement and develop confrontation doctrine. The fault lines that emerged among the Justices have left the current state of confrontation doctrine in disarray, particularly in cases involving expert witnesses. The replacement of Justices Scalia and Kennedy (Crawford’s champion and one of the principal dissenters in subsequent cases, respectively) with Justices Gorsuch and Kavanaugh has added to the uncertainty surrounding the doctrine’s future. This essay examines the possible pathways by which the doctrine on the Confrontation Clause may develop, distinguishing between cases involving experts and non-expert witnesses.


Scott Gerber on Chisholm v. Georgia
Michael Ramsey

At Law & Liberty, Scott Gerber: In Defense of the Supreme Court’s First Constitutional Law Decision.  From the introduction:

Last Monday, the U.S. Supreme Court held in Franchise Tax Board of California v. Hyatt, in a 5 to 4 opinion by Justice Clarence Thomas, that a state can maintain its sovereign immunity from lawsuits in other states, reversing a prior decision the Court issued in 1979 in Nevada v. Hall. ...

Importantly, [Hall] was not the only precedent on the subject. In fact, the Court’s first full-scale constitutional law decision, Chisholm v. Georgia, decided in 1793, was also in the way. At issue in Chisholm was whether a citizen of one state, South Carolina, could bring suit in federal court against another state, Georgia. The subject matter of the suit was a sizable debt that the state of Georgia had incurred in purchasing military supplies from Chisholm’s testator during the American Revolution.

As the post goes on to explain, in the Court's seriatum opinions Justice Wilson and Chief Justice Jay embarked on wide-ranging opinions that distract from the textual force of the argument against sovereign immunity.  However:

The opinions of John Blair and William Cushing in the Chisholm case have been called, among other things, “unimaginative.” It is more accurate to say they stayed on point. Blair began his opinion with a subtle expression of disapproval of the rambling opinions of Iredell [in dissent], Wilson, and Jay: Blair said he would pass over the “various European confederations. . . . The Constitution of the United States is the only fountain from which I shall draw.” Blair was true to his word. In fact, he needed but three pages to decide the case, and his decision was based on a plain reading of the words of the Constitution.

William Cushing’s opinion was similar to Blair’s in both tone and method. He, too, began by saying, “the point turns not upon the law or practice of England, . . . nor upon the law of any other country whatever” and he, too, emphasized the words of the Constitution. Put simply, Cushing’s opinion is a straightforward example of textual analysis. To Cushing, the clause in question, “between a state and citizens of another state,” needed to be read in conjunction with the clause that immediately preceded it, “to controversies between two or more states”—a clause that plainly envisioned the state as a defendant. If any exception was intended in the suability of a state, Cushing insisted, it would have been written into the Constitution. Cushing drove this point home by explaining that another clause in the relevant section subjected foreign states to suit in federal court by American citizens. Thus, the “sovereignty” argument was of no avail, Cushing concluded, unless one accepted the improbable argument that the clause meant “we may touch foreign sovereigns but not our own.”

The modern Court's doctrines of state sovereign immunity depend on the proposition that Chisholm was wrongly.  But perhaps that is not so obvious.

(Thanks to Mark Pulliam for the pointer).

RELATED:  Michael Dorf has this post at Justia criticizing the Hyatt decision:  Supreme Court’s Conservative Majority Issues Another Atextual Ruling in a Sovereign Immunity Case.  As discussed here, I basically agree with his bottom line.  But I think he obscures how much more problematic Hyatt is by lumping it in with the rest of the Court's state sovereign immunity decisions.

Professor Dorf says the others decisions are also atextual, but that's not entirely right.  Properly understood, the rule that states are immune in federal court comes from the vesting of the "judicial Power" of federal courts in Article III.  The theory is that historically "judicial power" did not include the power to hear suits against sovereigns, and so that meaning should be giving to it in Article III.  True, one has to go outside the text to find this rule, but it reflects the use of a background assumption to interpret text, which is not at all contrary to conventional originalism.  (This may be an incorrect interpretation of Article III, as Professor Gerber argues in the post linked above.  But that doesn't mean it's atextual; it just means it's wrong).

It's also true (as Professor Dorf says) that interpreting Article III does not get the result in Alden v. Maine, holding that state courts are immune from suit in their own courts.  But it's important to state the holding of Alden precisely (which Professor Dorf does not): it is that Congress cannot make states subject to suit in their own courts.  This conclusion is (or should be) based on the necessary and proper clause.  It's not necessary and proper to any of Congress' powers to impose such liability on the states (in particular, it isn't "proper" given the federal structure).  Unfortunately Justice Kennedy, writing for the majority, did not put it this way in Alden, but it is a reasonable textual foundation for the result in Alden.  (As with the other immunity decisions, I'm only saying here that there is a textual foundation for Alden, not that it is correct).

In contrast, so far as I can tell, there is no plausible textual foundation for Hyatt at all.  It is not an interpretation of any constitutional text.


Jordan Perkins: Originalism, Judicial Supremacy, and the Concept of Law
Michael Ramsey

Jordan Perkins (Columbia University, Department of Political Science) has posted Thinking Institutionally About Judicial Review: Originalism, Judicial Supremacy, and the Concept of Law (48 pages) on SSRN.  Here is the abstract: 

In this essay, I intend to advance two primary ideas. In the first part, I argue that originalism, as a judicial philosophy incubated as a conservative reaction against the legislative excesses of the Warren Court, is intrinsically wedded to two core theses: (a) the (in principle) determinacy of legal rules and (b) judicial supremacy. By the ‘determinacy of legal rules,’ I mean the idea that, in all but borderline cases, a uniquely correct outcome can be determined, based on objective criteria, given the case’s facts and the legal principles most appropriately tied to those facts. This is the jurisprudential theory of legal positivism, which originalists [almost?] categorically accept. By judicial supremacy, I mean acceptance of the principle that the final interpretive authority of the Constitution is and should be the judiciary, as opposed to some other institutional actor. While generalizing about ‘originalism’ is dangerous, given the perhaps dozens of distinct varieties pursued by American legal scholars and jurists over the past half-century, I believe that these two ideas are intrinsic to most, if not all, strands of originalism widely utilized in the legal academy. Casting doubt on these theses would thus be a substantial contribution to contemporary debates over how the constitution should be interpreted. Primarily for their importance and familiarity to academic audiences, I focus on what I call two ‘old’ originalist jurists, Robert Bork and Antonin Scalia, and arguably the most central figure of ‘new’ originalist thought, Randy Barnett, to show how these two theses play into their versions of originalism.

In the second part of this essay, I argue that the first of these ideas, the determinacy of law, is unappealing because legal rules themselves are often not sufficiently outcome determinative to fulfill the role that originalists tend to presume that constitutional rules, properly understood, should. My argument utilizes the interpretivist jurisprudence of Ronald Dworkin. If I am right, the question of who has interpretive authority is just as crucial as the question of how the Constitution should be interpreted. With regard to the second thesis, I argue that judicial supremacy is an inappropriate structural feature in our separation of powers system. Relying on the constitutional theory of German jurist Carl Schmitt, I argue, first, that the Supreme Court has generally proven incapable of serving, at least in times of crisis in which it is arguably most needed, as an efficacious guardian of constitutional norms, and, second, that its attempts to do so have proven disastrous for the legitimacy of the federal judiciary over the past few decades. I conclude with some normative arguments, based on the work of Jeremy Waldron, as to why the judiciary is an inappropriate institutional actor for the application of originalist methodology.

With respect, I think Professor Perkins is wrong as to both of the points he says are "intrinsic" to originalism. 

As to the second point, I simply don't understand the claim that originalism depends on judicial supremacy.  Originalism is a argument about how the Constitution should be interpreted (or, really, an argument about how legal texts should be interpreted).  It isn't specific to judges, at least in most of its forms.  If judges are not the final interpreters of a legal text, some other institution must be, and originalism will argue that that institution should use originalism as its interpretive guide.  (For what it's worth, a good bit of my foreign affairs scholarship is in areas that courts likely won't decide due to standing, political question and related doctrines, but I don't see why originalism isn't relevant to those areas; people seem to care a lot about the original meaning of the declare war clause even though it's not likely to be decided by a court).  Moreover, we actually live in a era of "judicial supremacy" (by Professor Perkins' definition -- I think he just means constitutional judicial review).  So even if originalism does assume judicial review (which it need not), it's still relevant to the actual real world, if perhaps not to Professor Perkins' preferred world.

On the first point, I've argued here a number of times against this common criticism of originalism so I'll just summarize.  Originalism does not assume that all or most legal questions are determinate by originalist methods.  The core proposition of originalism is only this: to the extent legal questions are determinate by originalist methods, they should be resolved according to originalist methods.  (And "determinate" here does not mean "beyond any reasonable doubt"; it only means by fairly strong evidence).  Originalism accepts that not all questions are determinate by originalist methods, although it's divided on how then to proceed: (a) one might say that when originalism can't clearly answer a question, one must resort to other methods in the so-called "construction zone" (the position of, for example, Larry Solum, Randy Barnett, Jack Balkin and Keith Whittington); (b) one might say that judges therefore lack authority to rule, and so the decision is left to the political branches to decide politically (the position of, for example, John McGinnis and Richard Kay); or (c) one might say that the interpreter must nonetheless make the best assessment under the circumstances of the originalist rule, even if subject to some doubt (I think this is Mike Rappaport's position).  But in any event it's just not true that originalism assumes near-complete determinacy.

Originalism does claim that it is more determinate than competing theories of interpretation.  And as a practical matter, to be relevant, originalism must claim that it is determinate in at least some non-trivial number of contested cases.  But I think these are pretty easy claims to make.


Unifying Original Intent and Original Public Meaning
Mike Rappaport

John McGinnis and I have just published a new article on Original Methods Originalism, the interpretive theory that we have developed. In this post, I wanted to describe the first part of the article. In a second post, John will describe the latter part of our piece.

One of the significant challenges for originalism is that it has a division between two interpretive approaches. The two leading approaches are original public meaning (which is a kind of textualism) and original intent (which is a form of intentionalism). Despite years of debate, this disagreement has not gone away.

In the article, we argue that original methods originalism can unify these two interpretive approaches. And therefore, originalists of both approaches—if they apply them correctly—should apply the same interpretive principles.

The Argument for Applying the Original Interpretive Rules

Original methods originalism holds that the Constitution should be interpreted using the same interpretive rules that people at the time would have deemed applicable to the document. Applying those same interpretive rules is the best way of capturing the document’s original meaning. Thus, if the Framers’ generation would have applied certain interpretive rules to the Constitution, so should we.

But following the original interpretive rules also makes sense for the original public meaning and original intent approaches. Under original public meaning, one follows the meaning that a reasonable and knowledgeable person at the time would have employed. A reasonable and knowledgeable person would certainly have applied the interpretive rules that would have been deemed applicable to the document at that time.

While it is less obvious, under the original intent approach one should also follow the interpretive rules that would have been deemed applicable to the document. It is often thought that the original intent approach requires one to follow the meaning that the authors of the document intended the terms to have, not the meaning that would result from applying the interpretive rules at the time. But this is mistaken.

If one asked the authors of the Constitution (or its readers) at the time how to determine the meaning of the document, they would not have answered, look at our intent as to the meaning of the terms. Instead, people at the time would have argued that interpreters should apply the conventional interpretive rules that would have been applied to the document. (John’s post will provide significant evidence for this claim from the debate on the First Bank of the United States.)

There are important reasons why people at the time would not have focused upon the meaning the authors intended as to the provisions of the document. One significant challenge to this practice flows from the difficulty of aggregating differing intents. What does an interpreter do if person A intended one meaning, person B intended a second meaning, and person C intended a third meaning? Applying the conventional interpretive rules avoids this problem. One simply applies those rules, which do not require aggregating intents. Thus, both the original intent and the original public meaning approaches end up applying the same interpretive rules—the ones that would have been deemed applicable to the Constitution at the time.

Determining the Original Interpretive Rules

Another issue the article addresses is how to determine what interpretive rules would have been applied when there was uncertainty or disagreement about the matter. We argue that one should resolve that uncertainty the same way that people at the time would have done so. Significantly, we maintain that people at the time would have employed the common law method to resolve such disagreements and therefore modern interpreters should apply that same method.

Explaining our argument that interpreters at the time would have employed the common law method to resolve disagreements requires a bit of history. During the first three quarters of the 18th century, the principal written laws that governed England and the American Colonies were statutes. In deciding how to interpret those statutes, judges and other interpreters would look to the common law to determine what the statutory interpretive rules were.

When the U.S. declared independence, the new independent states wrote constitutions. Those constitutions needed to be interpreted and in the main the statutory interpretive rules of the common law were applied to them. Constitutions were thus seen as a form of superstatute. Of course, the state constitutions were “statutes” of a certain sort. To the extent that they were less detailed than statutory codes, they would be interpreted using interpretive rules that made sense for shorter, less detailed statutes. Chief Justice Marshall referenced this move in his famous “it is a constitution we are interpreting” line in McCulloch. Significantly, Marshall’s interpretive rule was not a rule that was alien to statutory interpretation. Rather, it was the application of a statutory interpretive rule to a certain type of (superstatutory) enactment.

Thus, when the federal constitution was written, eleven years after Independence, a body of interpretive rules (from statutes and state constitutions) were on hand that were applicable to it. Those were the interpretive rules that should be applied to the Constitution.

It is possible that the interpretive rules that applied to the federal constitution differed in minor ways from the statutory or state constitutional rules. To the extent that the federal constitution was significantly different than statutes or state constitutions, there would be an argument, under the common law method, for treating it differently.

Under the common law, a new type of document, such as a federal constitution, that resembled existing documents would be interpreted by using the existing interpretive rules. If the new document differed from the existing one in a significant way, then the common law might apply a different interpretive rule to it. In the case of the federal constitution, we have not uncovered any important interpretive rules that applied only to the federal constitution (except in the limited sense, as noted above in the McCulloch example, that some interpreters treated the federal constitution as a statute of a particular type).

There is much more to this new article. But the basic point is that the legal interpretive rules are key to discovering the Constitution’s original meaning, under both the original public meaning and the original intent approaches. And those legal interpretive rules are the traditional ones that applied to statutes and state constitutions prior to the enactment of the U.S. Constitution.

Call for Papers: Eleventh Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference in San Diego
Michael Ramsey

The following is posted on behalf of the University of San Diego School of Law Center for the Study of Constitutional Originalism, the Center's Director Mike Rappaport, and the other faculty members of the Center.

On February 21-22, 2020, the Center for the Study of Constitutional Originalism at the University of San Diego School of Law will hold the Eleventh Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.

This past February, the Center held the Tenth Annual Originalism Works-in-Progress Conference in San Diego.  For information on the Tenth Conference see here.  For a videotape of the proceedings, see our Youtube Channel here.  For information and videotapes of the other nine conferences, see here or here.

We invite submissions of works in progress for the Eleventh Conference.  A work in progress is a draft paper in article or book chapter form that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of a one to three page abstract (and, optionally, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Submissions can be sent to us now, if possible, but in any event by the end of August.  We will ask that the selected papers be circulated to conference participants in late January 2020.  The Center will cover travel expenses, lodging, and meals for paper authors and commentators.  The Call for Papers page is here.

In addition to paper authors and commentators, we would like to invite all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  The Center would be happy to pay for the principal meals for those attending the entire conference but not giving a paper or serving as a commentator.


The D.C. Circuit on Sentencing for Acquitted Conduct
Michael Ramsey

In United States v. Bagcho, decided last week, the D.C. Circuit (following circuit precedent) upheld a sentence imposed in part based on conduct for which the defendant had been acquitted.  As the majority (per Judge Rogers)  explained: 

Bagcho contends that the district court violated his Fifth and Sixth Amendments rights under the Constitution by calculating his sentence based on uncharged and acquitted conduct. But he acknowledges that in United States v. Bell, 795 F.3d 88, 103 (D.C. Cir. 2015), the court held a sentencing judge may consider uncharged or acquitted conduct proved by a preponderance of the evidence provided the sentence does not exceed the statutory maximum or increase the statutory mandatory minimum.  He “maintains that Bell and similar cases are inconsistent with the Fifth and Sixth Amendments, and he seeks to preserve his claim for future review.” The concurrent sentences of 300 months did not exceed the statutory maximum of life imprisonment for Counts I and II, nor was the statutory mandatory minimum increased by consideration of the uncharged or acquitted conduct. Consequently, the court must affirm the district court’s consideration of uncharged and acquitted conduct in calculating Bagcho’s sentence.

Apparently every other circuit to consider the issue agrees.  But Judge Millett, concurring,  objected:

I write separately to express my continued opposition to the use of conduct for which a defendant was acquitted to increase the length of that person’s sentence. It stands our criminal justice system on its head to hold that even a single extra day of imprisonment can be imposed for a crime that the jury says the defendant did not commit.

And as she points out, another judge who has a problem with the practice is now-Justice Kavanaugh.  From his dissent from denial of rehearing in the Bell case: 

Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20–year sentence?

It seems like a fair question.  I have no idea what the originalist answer would be, but it also seems like an interesting issue to investigate.  And it illustrates that originalism often does not have an obvious political valence.  The outcome could go either way, depending on what the history shows.

(Via How Appealing).


Rob Natelson on Treaty Originalism
Michael Ramsey

At the Daily Caller, Rob Natelson (Independence Institute): The Supreme Court Just Applied Originalism to an 1855 Treaty, So Why Not to the Constitution? From the introduction: 

[Critics of originalism] claim that “originalism” — applying the Constitution as the Founders understood it — is unrealistic or extreme. Some even claim originalism is a new invention, dating only from the Reagan years.

But applying legal documents as their makers intended is the way courts and lawyers interpret most documents, and have done so since the days of the Roman Empire.

Illustrative is last month’s Supreme Court ruling in Washington State Department of Licensing v. Cougar Den.

As the post explains, the case turned on the meaning of an 1855 treaty with the Yakima Tribe, which the Court interpreted according to the meaning it had in 1855.  In conclusion:  "The case illustrates how judges apply originalism for almost all legal documents — except the Constitution."

I agree.  Originalism (though not by that name) is the presumptive approach to legal interpretation, other than for the Constitution: contracts, statutes. treaties, etc.  It's true that there are competing theories, but these are largely academic curiosities.  It's true there are exceptions, but these are recognized as exceptions to the usual approach.  It's also true that interpretive methods for these sources of law are often debated -- but the debates are typically between different varieties of originalism (again, not by that name).

The Constitution is treated differently.  Originalism is not the presumptive approach.  Why should that be so?  There may be arguments why the Constitution is different, but the burden, it seems, should be on those who would treat it differently to show why it is different.


John Vlahoplus: Evaluating Originalism
Michael Ramsey

John Vlahoplus (Independent) has posted Evaluating Originalism: Commerce and Emoluments (St. John's Law Review (2019), forthcoming) (79 pages) on SSRN.  Here is the abstract: 

The debates among originalists and between them and their critics have continued unabated since Paul Brest, H. Jefferson Powell and others rebutted original intent originalism in the nineteen eighties. Scholars on both sides claim victory while others argue that the contestants actually agree on fundamental issues and merely talk past each other. This article suggests that the contest is real and appears in centuries of debates within Anglo-American and civil law. The article locates the Anglo-American origins of originalism in a novel seventeenth century method of legal interpretation used to achieve a specific political end — to stifle opposition to the union of Scottish and English subjects of King James after his accession to the English crown in 1603. The novel method followed Emperor Justinian's earlier attempt to forbid interpretation of the Corpus Juris Civilis because he considered interpretation to be a perversion of written law that generates confusion and discord.

The article then evaluates notable originalist interpretations of the Constitution's Commerce and Emoluments Clauses in light of the novel and traditional English interpretive methods. It identifies founding-era public understandings of terms in the Commerce Clause that reach commercial activities like insurance, agriculture and manufacturing and that encompass both prohibiting and commanding individuals' activities. In addition, it identifies founding-era public understandings of terms in the Emoluments Clauses that reach elected representatives who benefit from honest business transactions with governments. Anglo-American legal history proximate to the adoption of the Constitution supports a broad interpretation that prohibits elected officials from receiving those benefits in order to secure their independence, prevent conflicts of interest, and ensure the survival of representative government. The originalist interpretations of the Commerce and Emoluments Clauses ultimately rely on normative judgments, not historical facts.

American originalism first asked what the Constitution's founders, drafters or ratifiers intended. In the face of criticism it evolved to ask how the American public understood the Constitution's words. In the face of yet further criticism it is evolving to ask what we should make of the Constitution by applying original methods of legal analysis to constitutional text and history. Whether that iteration will be any more successful than its predecessors remains to be seen. If it is not, then another will likely take its place because originalism is ultimately a normative aspiration embraced by many who hope, like a commentator in 1535, that what Emperor Justinian failed to achieve in his era will yet come to pass.