Tag: Originalism

Advise. Don’t Consent.


Justice John Masrshall by Henry Inman

Justice John Marshall by Henry Inman.

Lawrence Tribe says that the Vice President cannot legally function as a tie-breaker in a judicial confirmation vote.

If he’s right, that would give the GOP leverage in the confirmation process. But the Senate GOP needs to take its role seriously. Too many Republicans say things like, “The President should get the justices he wants, as long as the nominees are qualified.” Lindsay Graham has put that saying into practice.

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I recently came across a court opinion including a particularly rousing and powerful defense of originalism in the interpretation of the Constitution.  No one, we presume, supposes that any change in public opinion or feeling . . . should induce the court to give to the words of the Constitution a more liberal construction in […]

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TurleyVision 1999: Impeachment as a Madisonian Device


My dear spouse occasionally forwards me the legal theories of Jonathan Turley, who currently argues Trump’s impeachment trial is unconstitutional now that Trump is a former official. Curious as to what Turley had to say about impeachment before Trump, I did some digging and struck a mother lode: Turley’s 146-page 1999 Duke Law Journal article, Senate Trials and Factional Disputes: Impeachment As A Madisonian Device. Turley’s reasons for publishing such a masterwork in 1999 may not have been dispassionate, since he had recently testified at Bill Clinton’s impeachment, but since Trump’s presidency wasn’t even a gleam in the old GOP elephant’s eye back then, Turley’s thoughts on impeachment in 1999 should at least be free of any bias for or against Trump. Those with the patience to read — or at least skim — Impeachment As A Madisonian Device will be rewarded with plenty of information on impeachment’s constitutional function and history that’s interesting in its own right, and a perspective in which the non-juridical, political nature of impeachment transcends mere raw exercise of power.

Impeachment As A Madisonian Device extensively surveys the constitutional history of impeachment. Its thesis is that the impeachment process, declared first in the House, then passed to the Senate for trial, culminates in

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In the wake of Bostock v. Clayton County, in which the Supreme Court held that discrimination on the basis of sexual orientation is necessarily sex-based, a number of conservative legal thinkers have unsheathed rather sharp swords against Republican-appointed Supreme Court justices, past and present. The arguments vary but generally boil down to dissatisfaction with textualism and […]

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There’s been much consternation over Justice Gorsuch’s and Roberts’ majority opinion in Bostock v Clayton County. It’s both a major new application of existing law with far reaching effect AND is something Congress has tried but failed to do. As a default, I think the dissent in the case makes sense: the court shouldn’t impose […]

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The Problem with ‘Common Good Constitutionalism’


In 1980, Stanford Law School Professor Paul Brest wrote his famous article, “The Misconceived Quest for An Original Understanding,” in which he defined “originalism” as an “approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.” Brest concluded that originalism failed to deal adequately with two fundamental problems: the multiple intentions of different parties, and the danger of constitutional obsolescence attributable to changed circumstances.

Brest’s skeptical view of originalism was quickly championed by other writers, most notably the legal scholar Ronald Dworkin, who advocated a “moral reading” of the Constitution. In his book Freedom’s Law, Dworkin treats the text as the basis for understanding key constitutional conceptions like liberty, equality, and dignity, which judges, lawyers, and citizens have to flesh out under some ideal normative theory.

This anti-originalist approach has generated a strong backlash from scholars like Georgetown’s Randy Barnett, who argues that the detour into moral theory gives modern judges carte blanche to read every fashionable idea into the Constitution, until different constitutional moralists have reduced the stature of the Constitution from the supreme law of the land into a pitiable Tower of Babel. Hence the constant originalist refrain that constitutional terms have to be interpreted in accordance with their established public meaning.

Vermeule’s Gleeful Illiberal Legalism


Few have been brave enough to flesh out what the Ahmarist, or “anti-Frenchist,” vision of the common good should be. Some have said articulating specifics is beside the point, that Ahmarists’ refreshing achievement is unapologetically asserting a common good exists, even if they decline to say what, exactly, it is. And then, there are guys like Adrian Vermeule, writing in The Atlantic, brave enough, at least, to flesh out a vision of sorts. Vermeule calls it “common-good constitutionalism”, which he describes as “an illiberal legalism that is not ‘conservative’ at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.” When Vermeule writes,

[U]nlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, [emphasis added] a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires…

Myron Magnet joins Brian Anderson to discuss his new book, Clarence Thomas and the Lost Constitution.

Magnet contends that Justice Thomas’s originalist jurisprudence offers a path forward for recovering our nation’s “lost Constitution” and restoring America as a free, self-governing nation made up of self-reliant citizens.

Why Emanate Penumbras When There’s a Ninth Amendment?


Our Founders, in rebelling against Mother England, claimed for themselves “nothing but the liberty and privileges of Englishmen in the same degree, as if we had continued among our brethren in Great Britain”. Along with Blackstone, our Founders treated natural rights as A Thing. They drafted the Constitution as a document constraining the federal government to enumerated powers, and recorded in the Ninth Amendment that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” We’re all familiar with the rights enumerated in the Bill of Rights, and the affirmation in the 14th Amendment that these rights are good against the federal government, too. But whatever happened to the unenumerated rights mentioned in the Ninth Amendment?

The Founders had good reason to believe in a constitutional order protecting unenumerated rights. After all, the Founders inherited their notions of rights, due process of law, and constitutionality from Mother England. Which isn’t to say they weren’t free to deviate from English traditions of law in declaring independence; obviously they were. But their understanding of law was rooted in English understanding of law, and only then shaped by their explicit deliberations. A reasonable person living at the time of ratification could be expected to understand the nature of law in a pretty English sense, a sense in which rights are discovered by the traditions of common law, and not all rights must be explicitly summarized in order to be respected.

Richard Epstein reacts to the news that Anthony Kennedy is retiring from the Supreme Court, speculates on his possible replacements, and explains the potential implications for constitutional law.

As has become an annual tradition in the Trump era, the end of another Supreme Court session brings rumors of Justice Anthony Kennedy’s impending retirement. In this episode, Richard Epstein looks at Justice Kennedy’s legacy, considers whether lifetime terms on the Supreme Court are justified, and looks at the future of a post-Kennedy court.

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When I first came across the concept of constitutional originalism it seemed pretty straightforward. Things should be determined according to their original meaning. Raised a good Evangelical I am familiar with similar issues in regards to scripture. Authorial intent is what grounds meaning. What Paul meant in the first century Greco-Roman or Mediterranean context is […]

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Richard Epstein weighs in on the nomination of Neil Gorsuch for the Supreme Court and explains what makes an effective justice.

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What’s the point of the American system of government without a written Constitution operating as the one supreme law? And what’s the point of a written Constitution whose meaning changes when the writing stays the same? Kudos to those on the Left who acknowledge that they believe in an unwritten Constitution to supplement the written […]

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Apple, Originalism, and the All Writs Act


iPhone_6_PLUS_preview_MG_1875Originalism as a method of judicial interpretation is now irrelevant, some claimed after the passing of Justice Antonin Scalia. It never really worked and now it’s destined to fade away.

Tell that to federal magistrate judge James Orenstein in New York, who yesterday ruled for Apple in a case in which the feds had invoked the All Writs Act to demand the unlocking of the phone of suspected drug dealer Jun Feng (the case parallels the far higher-profile case of the San Bernardino killer’s iPhone).

The Act grants federal courts broad power to issue “necessary or appropriate” writs, which the government would like to interpret to include types of writ Congress has declined to authorize explicitly even after considering doing so. In Judge Orenstein’s reasoning, it matters very much what the All Writs Act was understood to mean at the time of its passage in 1789.

Constitutional Change: A Parable


640px-Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesOn Monday I say, “Here is a wonderful document. It establishes a federal republic based on checks and balances with the purpose of protecting our natural rights and securing the blessings of liberty. It is a living document, and explains how we can update it if we need to.” And you say, “This is a good document.” On Tuesday I say, “The document has some new sentences. Now it also says we should end slavery.” And you say, “That is also good.”

On Wednesday, however, I say, “Now the document says there are some other rights that overrule some of the old ones.” And you say, “Can I read the new sentences?” I reply: “There are no new sentences. Just a new meaning.” You ask, “Where did the old meaning go, and how did you squeeze this new meaning into the old sentences?”

On Thursday I say, “Now the document says we have the right to marry any way we like. Today two men can marry each other, and tomorrow they can marry five men or five women; after that, perhaps they can marry their mothers and their dogs if they like.” You ask when the document started meaning this, and I answer “Just this morning.” You ask when I updated the words to include this new meaning and I say, “The words have not changed since Tuesday.” It’s hard to say what will happen on Friday, but it probably won’t be good.

Yesterday’s Non-Originalism


James_Madison_Portrait2Conservatives tend to be originalists in constitutional interpretation. But not all to the right of center are originalists, and not all non-originalists are hard-core, leftist living constitutionalists. There’s a view of non-originalism that’s remarkably compatible with conservativism. I don’t endorse it myself, but it’s well worth looking at.

Another way of putting it: There’s an alternative to originalism that’s not today’s alternative. It’s not the Left’s. It’s old, or at least it has old roots. It has a lot to do with Madison. Let’s start with some of his principles and build up to that alternative:

First, Madison tells us that the Constitution is given its authority by the people:

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The second of a three-part series on the jurisdiction-stripping strategy for restoring Constitutional governance.  (First part here.)  Congress has some ability to remove jurisdiction from federal Courts.  This could be really awesome: Congress gives the Courts less room to legislate from the bench, federal power devolves to the various State courts, and when State Supreme Courts have better Originalists […]

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