Beyond Originalism
At Volokh, Jonathan Adler comments on the weekend's annual convention of the American Constitution Society:
executive director Caroline Fredrickson reportedly characterized originalism as a “choking weed,” part of a “noxious brew” of ideology promoted by the Federalist Society. Was this remark a categorical rejection of originalism, or simply a rejection of those modes of originalism employed by conservatives?
I was not at the ACS meeting, although to the credit of its organizers, I was invited to speak there, but had to bow out because of a prior commitment. Nonetheless, I think I would have plotzed if I had heard that remark, and for two reasons. First, the political impulse that lies behind the remark, which is a philosophy that has gotten us into so much trouble to begin with. Strong government that takes over the operation of the economy and then imposes restriction on political speech that is intended to prevent criticisms during electoral periods. Clearly Citizens United is the cause celebre that drives this analysis.
Second is the utterly primitive view of what originalism actually means. The forms of interpretation at use at the time of the founding did not address solely the issue of what meaning should attach to particular words, although that is clearly part of the exercise. No one could with a straight face say that commerce includes manufacture, agriculture and mining, which is of course the basis of much of federal jurisdiction today. But interpretation for an originalist has to embrace more. There are questions in particular of the police power justifications for the limitations on individual liberty. Freedom of speech does not mean freedom to incite a riot, as we have said.
We can try to parse the words, but in the end we need a robust theory of justifications for government actions, which drives us back to libertarian theory. The need to suppress force and fraud are only the most obvious limitations on speech that we can devise. It is easy to caricature a theory if you do your level best to put it forward in its worst possible light.
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Jun '10
Re: Beyond Originalism
Either originalism is the proper attitude for every justice to have, or the whole constitutional amendment process is just some vestigial tail--a birth defect that shows up on human infants once in awhile, to everyone's horror--but is easily solved with a quick intellectual operation.
May '10
Re: Beyond Originalism
Professor Epstein, what led to the apparent lapse of originalism until recent decades? Originalism was self-evidently the judicial philosophy of the earliest Courts, but then how did the liberal judicial philosophy become so dominant for so long?
May '10
Re: Beyond Originalism
Mark Wilson (formerly Not Rocket Science): Professor Epstein, what led to the apparent lapse of originalism until recent decades? Originalism was self-evidently the judicial philosophy of the earliest Courts, but then how did the liberal judicial philosophy become so dominant for so long? · Jun 21 at 8:44pm
I remember in a special podcast right after the healthcare bill was passed, John Yoo told the story of how FDR sort of fractured the Constitutional stronghold of the Supreme Court. After having several of his programs deemed unconstitutional he played dirty and threatened to manipulate public approval to add two more Supreme Court Justices. The Supreme Court backed down and softened their interpretations of the Constitution after that. Did I get that right? And, does that play any role?