Law Commons^™

Originalism In Practice, Lawrence Rosenthal

Lawrence Rosenthal

Originalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits of originalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …

Pragmatism, Originalism, Race And The Case Against Terry V. Ohio, Lawrence Rosenthal

Lawrence Rosenthal

Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure” has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment “where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . .” Terry is frequently denounced as granting the …

The New Originalism Meets The Fourteenth Amendment: Original Public Meaning And The Problem Of Incorporation, Lawrence Rosenthal

Lawrence Rosenthal

This paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego's Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation. In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of …