07/23/2019

Rick Hills on Baude & Sachs on Originalism
Michael Ramsey

At Prawfsblawg, Rick Hills (NYU): What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past.  Here is the introduction:

I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those texts mean. (Consider, for instance, Jennifer Mascott’s painstakingly erudite analysis of how eighteenth century writers used the noun “officer” in various corpora of texts to figure out what “Officer of the United States” means in Article II). On the other hand, they mostly ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts. The historical past in legal scholarship on “original public meaning” has this dignified but misleadingly monotonous look of a white marble Classical Roman statue — misleading, because those statues were originally painted in life-like colors that only washed away with the passage of time. Colorlessly apolitical constitutional interpretations, like colorless Classical statues, are just historically inaccurate.

William Baude and Stephen Sachs have helped me think about this attitude towards history with a typically lucid and analytically deep essay. They argue that lawyers should focus on “legal doctrines and instruments specifically, rather than intellectual movements generally” when trying to figure out what past laws mean, because our law today “grants continuing force to the law of the past,” not the cultural or intellectual movements of the past. Sure, cultural movements, partisan motivations, ideological fights might be the cause of those old legal doctrines, but our modern law “typically” does not incorporate these extra-legal forces. Instead, it incorporates only “legal doctrine (treatises, court cases, and so on).” Baude and Sachs cite Hart’s Rule of Recognition to support the idea that the “internal point of view” leaves out the political, partisan, cultural motivations for the law: In their view, modern law incorporates only this “internal point of view” of the law, not the law’s “external” causes.

As I explain after the jump, I think but am not quite sure that I disagree with almost every part of their argument. Baude’s and Sach’s essay is, however, by far the most careful effort so far to justify a scholarly practice that has previously been followed but not much defended by originalists. For those readers who want the short version, here are my two bones to pick. First, Hart’s “internal point of view” nowhere suggests that the law consists only of “legal doctrine.” Instead, ideological, cultural, even partisan platforms found outside conventional law sources, can just as easily be the basis for an elite’s “internal” consensus of what “law” is. Second, the ideological purposes and functions of constitutional language must be part of legal interpretation of constitutional text from the outset, because (as Ryan Doerfler has persuasively argued) the pragmatic function of words is just as much part of their meaning as semantic usage.

A thoughtful, insightful discussion, plus some very high level responses in the comments, including by Stephen Sachs, Asher Steinberg and Ryan Doerfler.   I especially endorse this part of Professor Sachs' comment:

Focusing on the politics, though, seems to miss the point of all the politicking. Getting to "dry legal analysis" is exactly what political bar brawls are *for*. Interest groups have knock-down drag-out fights in Congress, spending plenty of good money on lobbyists, just so that they can influence dry formalisms like "which words are put into the statute and which aren’t." Victory in the political fight is having your super-controversial policy views become the durably *less*-controversial lawyers' understanding of some lawmaking event.

Doing that dry legal analysis doesn't mean ignoring the bar brawl; it just means valuing the bar brawl for what it tells us about the legal events, and not the other way around. We've written before (in our "Law of Interpretation" piece) about how looking at legal texts solely as pieces of language can get things wrong. Of course we'd need to know what was going on in early-20th-century politics to properly read the Seventeenth Amendment as leaving Senate terms intact, and not as proposing a temporary six-year trial balloon ("The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years..."). But suggesting that the Seventeenth Amendment codified the political aims of the Progressive movement generally, and not just certain individual changes that managed to get through the ratification process, would also be a mistake.

So non-doctrinal sources are fine, and indeed unavoidable. But they can also be misused; these are issues of weight, not admissibility. Marshall did talk a lot about principles, but as evidence of what rule the Constitution had recently provided, not as free-standing norms that operate independently of its historical content. And while the contending sides sometimes compromised by fudging it, not everything that looks ambiguous to us was equally ambiguous back then--and when it was, it's our job to apply the fudge as best we can. As we note in the paper, "Ordinary business contracts are hardly 'air-tight,' ... but we write them anyway: the parties’ choice to adopt an integrated agreement is a choice to rest their legal relations on contested inferences drawn from a single piece of text."

I'll add this, in partial defense of originalists' focus on legal text over "great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these text."  First, I think it is not true that originalists generally ignore the "great partisan debates."  (For example, an overwhelming volume of analysis just of the bank debate has been presented just at the San Diego originalism works-in-progress conference just in the last few years.  Perhaps Professor Hills should come out to San Diego and see what we do.)  But that point aside, I think originalists (again speaking generally) recognize that one can only go so far with the great partisan debates.  As Professor Sachs says, ultimately the debates were reduced to text.  Sometimes the text is clear and sometimes not, but resort to the partisan debates isn't likely to help that much.  To defend Professor Mascott's paper, for example: the question she takes up is the meaning of "officer of the the United States."  Now maybe Professor Hills would find something in the "great partisan debates" that helps us answer that question, but I doubt it.  On points of fairly narrow textual meaning, at least, a fairly narrow textual focus seems appropriate. 

And even on broader, more ideologically contested points, it is after all the text that most originalists regard as decisive.  Take the issue to the declare war clause, which I've written extensively about.  There were a range of views about how strong the executive should be, and to be sure one should sort through those in evaluating how the Constitution allocated the war initiation power; but ultimately the original allocation is the one reflected in the text, so one needs to look at the actual words of the text and how those words were commonly used at the time.  I'm not sure how Professor Hills would do it differently.

07/22/2019

Lawrence Solum on Positive and Normative Legal Theory
Michael Ramsey

From Legal Theory Blog's Legal Theory Theory Lexicon: Positive and Normative Legal Theory.  From the conclusion:

The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines between the positive and the normative. When you do, my advice is that you stay on your toes. A common mistake is to try to force interpretivist theories into either the positive or the normative. Although there may be deep reasons of legal theory that would justify such a forcing move, it will rarely be productive to start there. A better strategy is to try to understand such hybrid theories from the inside first. When you are constructing your own theories, it is always important to be sure you know whether your theory is positive, normative, or has elements of both.

This is an important distinction to watch for in originalist theory.  Some justifications for originalism are expressly normative, and some are expressly descriptive.  But a lot of them blur the line.  And I doubt the latter is a good thing.  Unlike Professor Solum, I'm inclined to "try to force interpretivist theories into either the positive or the normative."  Or at least, I think it should be made clear what part is normative and what part is descriptive.  Otherwise, theories may covertly try to get normative mileage from their descriptive elements, and vice-versa.

07/21/2019

Jack Balkin: Why Liberals and Conservatives Flipped on Judicial Restraint
Michael Ramsey

Jack M. Balkin (Yale University - Law School) has posted Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time (66 pages) on SSRN.  Here is the abstract: 

Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts--not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments.

Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation.

Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review.

Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective.

Constitutional theories--such as originalism and living constitutionalism--also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.

(Via Balkinization).

07/20/2019

Marc DeGirolami on Originalism and Conservatism
Michael Ramsey

At Law & Liberty, Marc O. DeGirolami (St. Johns): Notes on a New Fusionism (responding to Jesse Merriam, Is Legal Conservatism as Accomplished as It Thinks It Is?).  From the introduction:

In his Liberty Forum essay, Professor Jesse Merriam identifies an important asymmetry between political and legal conservatism in America. Postwar political conservatism adopted a true fusionist program that blended traditionalist and libertarian streams. That fusion was unstable, contested, and strategic; and the traditionalist spirit in the cocktail was often watered down. Still, its effect on national politics was once potent and perhaps, as Merriam believes, traditionalism was fortified in Election 2016 and will influence the direction of conservative politics. I’m skeptical about that, but he’s the political scientist.

But in the law, there never was a traditionalist-libertarian fusion. True, Justice Antonin Scalia, one of the leading figures of American legal conservatism, had some traditionalist views. Yet to the extent that Scalia’s legacy has been embraced and advanced by legal conservatives, it has been his methodological commitments, not his views. Legal conservatism, Merriam says, is populated and driven by the libertarian Right. It focuses on constitutional theory and the development of originalism to the near exclusion of anything else. And while originalism in its hands has been pitched as politically neutral, its preferences are clear.

I don’t see the originalist landscape quite the same way, but if Merriam’s description of this asymmetry rings true, it’s worth asking what explains it. ...

And from the section headed "What to Do?":

What then is that exotic, hothouse flower—the tradition-minded legal scholar—to do? ...

[One] option would be to attempt a new fusion on the ground now occupied by legal conservatism: constitutional interpretation. But I am getting ahead of myself. Before considering what such a fusion might look like, let alone whether it would be feasible or desirable, we need to know what traditionalism in constitutional interpretation might be.

Let me offer a thumbnail sketch of what I’ve described at length elsewhere, in a new paper, “The Traditions of American Constitutional Law.” Traditionalist interpretation takes political and cultural practices of long and concentrated duration as constituting the presumptive meaning of constitutional text. Its focus on the concrete practices of the American people—political and cultural—proceeds from the view that actions, customs, and patterns of behavior can sometimes speak louder than words and abstract principles.

Traditionalism takes the endurance of a practice before, during, and after ratification of a given constitutional provision to constitute its meaning. For example, for the traditionalist, the fact that the political practice of legislative prayer is ancient, continuous, and concentrated in American national and local government indicates that it is consistent with the Constitution’s Establishment Clause. But the force of practices as ingredients of meaning is presumptive only; it may be overcome by directly conflicting constitutional text or a very powerful moral principle that defeats the tradition. The longer paper investigates and documents the pervasiveness of traditionalist interpretation across the Supreme Court’s constitutional doctrine. Once one looks, one sees it everywhere as the Court’s modus operandi in many areas.

And on fusion:

... Traditionalism, on this view, would not be an alternative to originalism, let alone seek to displace it. Instead, the aim would be to integrate or fuse traditionalism with or from within some existing varieties of originalism. Several developments make this possibility worth considering.

First, originalism has been very successful as what Professor Jamal Greene has called an artifact of “political commerce,” a political consumable that the public regards as authoritative whenever it gets a hankering for constitutional law. The so-called “positive turn” in originalism and the description of originalism as “our law” are not unrelated theoretical developments that make use of some of the same sociological facts about originalism. But at least some of those social facts, such as what the Supreme Court says and does (or says that it is doing), are as much traditionalist as originalist. Traditionalism has, in some doctrinal pockets, a strong claim to being “our law” in this sense. Traditionalist fusion with originalism might therefore draw strength from and contribute to originalism’s political and sociological power as a positive legal matter.

Second, much of the historical evidence supporting originalism also supports traditionalism. Where there are differences, they tend to be ones of weight—how heavily to count historical practices before, during, and (especially) after textual ratification, how proximate the practice must be to ratification, and so on. There are also useful similarities and divergences between traditionalism and theories of the “liquidation” of meaning, the latter of which have been explored by originalist scholars. The differences between these interpretive methods are real, but they may reflect different emphases, degrees, and moods, as much as deep substantive differences. ...

(Plus several more reasons).

And in conclusion:

Doubtless, however, there would be many obstacles to any new legal fusionism along these lines. Some purist originalists might reject it out of hand for theoretical, political, or other reasons. Others may believe that far from fracturing, originalism is instead steadily pruning away outmoded varieties—working itself pure—and that to engage with traditionalism would represent a regression. And still others might say that a new fusion simply isn’t needed politically at this moment of originalism’s triumph.

These are cogent objections, but they are also typical of any fusionist undertaking that threatens or promises (depending on one’s perspective) to adulterate a theory—whether of law or politics—in its pristine form. Fusionism works on a more pragmatic ground, on a political premise of compromise: do ut des. I give a little something, so that you may give a little something in return, and together we both may benefit. In future work, I will examine the relationship of these theories to one another more systematically.[10] For the moment, it may be enough to observe that one of the virtues of Professor Merriam’s essay is to explain why legal conservative fusionism has never yet been tried. Perhaps its moment has arrived.

I would add that there was a strong traditionalist element to Justice Scalia's originalism, as discussed here.  Indeed, some scholars have argued that Scalia's traditionalism was distinct from (though complementary to) his originalism.  I think rather that he saw his traditionalism as a way to understand original meaning (so that they were not distinct methodologies).  But in either event, his views seem compatible with the idea of fusionism expressed in the essay, and perhaps more could be made of that.

07/19/2019

More from Neal Goldfarb on Corpus Linguistics and the Second Amendment
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb: Corpora and the Second Amendment: “the right (of the people) to … bear arms”.  From the introduction: 

Having dealt in my last post with how bear arms was ordinarily used and understood in 18th-century America, I’ll turn in this post to the question of how it was used in the Second Amendment.

I’ll begin by considering how the right to bear arms would most likely have been understood during the Founding Era. As I will explain, I think it would have been understood to mean something along the lines of ‘serve in the militia.’ I’ll then ask whether that conclusion is changed by the fact that the right to bear arms is described in the Second Amendment as belonging to “the people.” My answer will be that my conclusion is unchanged.

My next post will wrap up my examination of the Second Amendment by considering whether my interpretation is ruled out by the fact that the Second Amendment deals not simply with the right of the people to bear arms but with their right to keep and bear arms. And again, the answer will be no.

(His prior post is noted here).

RELATED: In the New Republic, Matt Ford, When John Paul Stevens Eviscerated Antonin Scalia; The late justice dismantled originalism in his dissent in District of Columbia v. Heller, the landmark gun-rights case.  (The article is actually pretty fair, despite the over-the-top title).  But I don't think that Justice Stevens' opinion in Heller -- which was very much an originalist opinion -- persuaded many people who weren't already inclined to agree.  Most importantly, it didn't persuade any of the conservative Justices.  As Neal Goldfarb's posts show, anti-Heller originalist arguments have become much more sophisticated since then.

(Via How Appealing).

07/18/2019

John Mikhail: Emoluments and President Trump
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted The 2018 Seegers Lecture: Emoluments and President Trump (Valparaiso University Law Review, forthcoming) (56 pages) on SSRN.  Here is the abstract: 

The topic for my 2018 Seegers Lecture at Valparaiso University Law School was the original meaning of “emolument” and its implications for President Trump. In this revised and expanded version of my spoken remarks, I begin by discussing the Constitution’s Emoluments Clauses and describing the three emoluments lawsuits against the president that are currently winding their way through the federal courts. I then highlight one of the main points of contention in these lawsuits, which is the constitutional meaning of the term “emolument.” Next, I describe some of the efforts my colleagues and I have made to investigate the historical meaning of this term and explain how our research may impact the resolution of these lawsuits. Finally, I discuss the novel decision issued by a federal district court in July 2018, which held that “emolument” was a flexible term at the founding that referred to “any ‘profit,’ ‘gain,’ or ‘advantage,’” including profits from ordinary market transactions. A second federal judge recently denied the president’s motion to dismiss on the same grounds, setting the stage for what seems likely to be a pivotal issue on appeal in both cases.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!"

Entirely apart from the merits of the arguments, it is especially notable the extent to which the President's opponents have relied on the original meaning of the emoluments clauses.  That focus suggests a conclusion among at least some prominent left-leaning historians and legal academics that (a) one can (at least sometimes)  identify historical meaning of constitutional clauses; (b) historical meaning of constitutional clauses can (at least sometimes) be used to resolve modern controversies; and (c) historical meaning of constitutional clauses should be used to resolve modern controversies.  That's worth remembering when later commentators, legal academics and historians say that originalism is conceptually incoherent, practically impossible, or morally wrong.

07/17/2019

Abandoning Originalism Wouldn’t Be Very Conservative
Mike Rappaport

In recent years, a number of conservative legal scholars have expressed skepticism about modern originalism. The idea is that modern originalism has been greatly influenced by libertarians and even liberals such that it is no longer congenial to traditional conservatism. Jesse Merriam’s Liberty Forum essay is in part an example of this view.

Those who hold this view ask whether traditional conservatives should continue to be originalists. Perhaps if the originalism is distorted, conservatives should abandon it in favor of what Merriam calls a “new conservative agenda” that “engage[s] how the Constitution relates to the concerns of citizens who wake up each day to a country they decreasingly recognize.”

Here I write as both an originalist and classical liberal (and therefore an outsider to Merriam’s core audience). I have two basic points. First, while some originalist theorists have recently moved their originalism in a direction that is uncongenial to conservatives, that does not mean that originalism must have that character. Second, conservatives will be much better off attempting to persuade originalists of their ideas than trying to develop a nonoriginalist conservative jurisprudence.

Merriam argues that the original public meaning approach of modern originalism allows progressive interpretations to claim the mantle of originalism and thereby justify progressive jurisprudence. He is surely right that some versions of originalism grant so much discretion to judges that they allow a progressive living constitutionalism. For example, Jack Balkin famously argues that originalism and living constitutionalism are compatible, because the original meaning is very thin and therefore has minimal content. This permits future generations to add to that meaning based on modern values. There are other versions of originalism that also allow significant discretion. Nothing within originalism, however, necessarily requires that it grant significant discretion to judges. Therefore conservatives can, with perfect respectability, argue for alternative approaches to originalism.

First, conservatives could promote much thicker understandings of the meaning of constitutional terms. These thicker understandings mean that originalists are bound by more content from the original constitution than approaches that adopt thinner views of the original meaning. And therefore there will be less discretion for modern judges to update the Constitution under the guise of enforcing its original meaning. One such argument for this thicker theory of meaning is made by John McGinnis and me.

Second, conservatives could modify the view of modern originalist theories that places little weight on expected applications. An expected application involves evidence that the framers of a provision expected it would have a certain effect in the real world. For example, the Framers of the Fourteenth Amendment appear to have expected that its equality requirements would not protect women. Modern originalists have often denigrated that expected application, saying that what counts is the meaning of the terms, not the expected applications. But one could make an entirely respectable argument that expected applications are important, even if they are not the meaning, because they often indicate what people at the time thought were the meanings—people who were in a good position to know those meanings. Again, John McGinnis and I have made an argument of this sort.

Third, even if one accepted a thin theory of meaning, conservative-friendly devices could be employed to fill out that meaning. One such device, which has significant support, is the meaning given to a provision over time by the government. This can be the meaning that the courts gave to a provision or that the executive and legislature gave to it. This is sometimes known as practical construction or liquidation. Under liquidation, the interpretation followed for a period of time during the 19th century will often be the meaning that is binding on modern interpreters. Thus, traditional conservatives could argue for traditional interpretations within a perfectly respectable modern originalism.

Finally, traditional conservatives could also support their position if they were willing to take one step away from the core of modern originalism. Typically, originalists argue for an approach to meaning that is based on a non-normative analysis of the concepts of interpretation and meaning. Under this analysis, originalism is in an important sense value-free. But some less orthodox originalists take a different approach. Balkin defends his thin theory of original meanings based in part on a normative argument: that the thin theory allows future generations to update the Constitution, which is an attractive way to run a polity. But if normative considerations can be used to support Balkin’s thin theory, they could also be used to support a conservative view. For example, conservatives might argue that the meaning should be defined (in part for normative reasons) as including traditional values that Americans held at the time of the relevant enactment.

To be clear, I am not arguing for these aspects of originalism based on my own views of the best originalist approach. I am sympathetic to some of these aspects and less sympathetic to others. But there is nothing within modern originalist theory that would bar a view that incorporated these ideas. Conservatives have a clear path within modern originalist theory to advocate a conservative originalism—if they choose to pursue that path.

Which gets me to my concluding point: that traditional conservatives will be better off fighting for a conservative originalism than developing some new theory of interpretation.

The growth of originalism in the last two decades represents an impressive accomplishment for a mainly right-wing theory. Originalism has gained visibility and acceptance, so much so that people on the Left have even decided to follow it. It is thus a prize worth pursuing for conservatives to attempt to secure a significant place at the table of modern originalist theories.

If conservatives were able to convince a substantial number of originalists of the worth of their approach, they would have influence on the Supreme Court and on the legal profession generally. And it would be easier for conservatives to convince this group of originalists, which contains a significant number of conservatives, than other groups, who are much less comprised of conservatives.

What is the alternative to pursuing a conservative originalism? Traditional conservatives could attempt to come up with a new theory or resurrect an older theory. Who knows what that would be? And it would be hard to imagine it would connect with the American tradition or the modern world as persuasively as modern originalism has.

Conservatives more than anyone should understand the value of a tangible accomplishment that has been developed by the work of many people over multiple generations. Abandoning originalism because it is not perfectly suited to traditional conservatism, rather than attempting to reform originalism, would be a profoundly unconservative decision.

Adam Carrington on Scalia's Influence
Michael Ramsey

At the American Spectator, Adam Carrington (Hillsdale College, Politics): Reading Law: Justice Scalia’s Other Legacy.  From the introduction:

Since his death in February of 2016, Scalia’s influence of course continues through his three decades of judicial opinions. But he still exerts great influence in another, less-discussed way. In 2012, he co-authored the book Reading Law: The Interpretation of Legal Texts with Bryan A. Garner. This work describes numerous “canons,” or rules regarding how to interpret legal documents.

In so describing these canons, Scalia and Garner provide a defense of and a handbook for textualism, an approach to legal interpretation that “in its purest form, begins and ends with what the text says and fairly implies.”

And from later on:

Focusing just on this spring’s Supreme Court, we see Scalia’s influence at work. For example, Canon 27 in the book says we should respect the rule of law by reading statutes as internally consistent. This stops judges from rewriting laws to suit themselves. This position came up in Department of Commerce v. New York, which asked whether the Secretary of Commerce could include a citizenship question on the 2020 census. Justice Breyer wrote an opinion arguing that relevant statutes required the secretary where possible to use sampling of the population rather than a direct head count. Justice Samuel Alito rejects this reading by citing Canon 27. Breyer’s reading, he argues, made the law contradictory, giving the secretary at the same time discretion to choose counting methods and requiring him to use one method in particular.

The post continues with other recent examples from the Court.

(Via SCOTUSblog).

07/16/2019

John McGinnis Responds to Jesse Merriam on Conservatism and Originalism
Michael Ramsey

At Law & Liberty, John O. McGinnis: Originalism, the U.S. Constitution, and the Continuity of Fusionism (responding to Is Legal Conservatism as Accomplished as It Thinks It Is? by Jesse Merriam).  Here is the introduction: 

Jesse Merriam has written a bracing, well-argued, and contrarian Liberty Forum essay, contending that conservatives should not celebrate the rise of the legal Right. Merriam’s complaint is that the Right is not synonymous with conservatism and, further, that the modern conservative legal movement is not really conservative, but libertarian. For him, the focus on original meaning is a mistake anyway, preventing the development of what conservatives really need: a jurisprudence rooted in “constitutional morality.”

I fear that I am in substantial disagreement with every claim. First, while it is true that the conservative legal movement includes many libertarians as well as conservatives, enforcing the Constitution as written is the only practical way to advance conservatism through constitutional law. Second, while any legal theory can be applied wrongly, originalism (particularly in the hands of originalist judges as opposed to academics who sometimes put a higher premium on creativity than soundness) advances conservatism because the Constitution itself is fusionist document that aids conservatism. Finally, Merriam does not identify any possible theory that would deliver better results than those delivered by originalism. And that is not a surprise, for originalism has distinctively conservative virtues that other interpretive theories do not. It is traditional, being in fact the universally accepted interpretative theory until the Progressive Era. Only in name is it new. And following the meaning of the Constitution’s text coincides with the common sense of the people, another conservative virtue.

07/15/2019

Neal Goldfarb on Corpus Linguistics and "Bear Arms"
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb: Corpora and the Second Amendment: “bear arms” (part 3).  From the introduction: 

As I’ve previously explained, the court held in Heller that at the time of the Framing, bear arms ordinarily meant ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’ In my last post, I discussed the uses of bear arms in the corpus that I thought were at least arguably consistent with that that meaning. Out of the 531 uses that I identified as being relevant, there were only 26 in that category—less than 5% of the total.

In this post I’ll discuss the other 95%.

As I’ll explain, I think that all of those uses would most likely have been understood as conveying the idiomatic sense relating to the military: ‘serve in the militia,’ ‘fight in a war,’ and so on.

That reading of the data shouldn’t be surprising, since it’s consistent with the views of those who have previously written about the corpus data, and also of people who looked at usage data before the corpora I’ve used were in existence. (For credit where credit is due, see the discussion at the end of this post). But if all I wanted to do in this post was to count up how often bear arms was used in a military sense, the post would be over by now.

What I’ve done in addition to that is to try to identify patterns of recurring usage and to organize the data on the basis of those patterns. That process yielded insights into the ways in which bear arms was used in late-18th century America, and those insights were in turn useful in trying to figure out how bear arms was most likely understood as it was used in the Second Amendment. However, the latter  issue will have to wait until my next post. The focus here is on examining the range of ways in which bear arms was used. ...