Law Commons^™

Originalism, Official History, And Perspectives Versus Methodologies, Keith N. Hylton

Faculty Scholarship

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, another effect of originalism that I identify is the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law. I argue that …

Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …

Freehold Offices Vs. 'Despotic Displacement': Why Article Ii 'Executive Power' Did Not Include Removal, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).

This Article offers an explanation for the difficulty in supporting this historical claim: Because …

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

The Immorality Of Originalism, Jack M. Beermann

Faculty Scholarship

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of …

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …

The Constitution, The Common Good, And The Ambition Of Adrian Vermeule, Sotirios Barber, Stephen Macedo, James E. Fleming

Faculty Scholarship

Public trust in the U.S. government has declined steadily over the last sixty years, from 73% in 1958 to 17% in 2018 (Pew 12/9/20). Public support for the U.S. Constitution has remained higher. When support for the government dipped to an all-time low of 15% in 2010, support for the Constitution stood at 74%. But the gap has narrowed. From 2010 to 2017 support for the Constitution fell from 74% to around 50%—a drop of 24 points in seven years (AP/NCC 8/12; Rasmussen 2017). These figures suggest that if Americans continue to believe that their government isn’t working, they’ll eventually …

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. …

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

Response To Bruce Frohnen’S Review Of Fidelity To Our Imperfect Constitution: For Moral Readings And Against Originalisms, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

Critical Dialogue, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Asymmetric Constitutional Hardball, Joseph Fishkin, David E. Pozen

Faculty Scholarship

Many have argued that the United States' two major political parties have experienced "asymmetric polarization" in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar – and causally related – trajectory. Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. Both sides have done these things. But contrary to the apparent assumption of some legal …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Limits(?) Of Originalism, Gary S. Lawson

Faculty Scholarship

Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When …

Reflections Of An Empirical Reader (Or: Could Fleming Be Right This Time?), Gary S. Lawson

Faculty Scholarship

Professor Jim Fleming’s new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, purports to critique all forms of originalism from the perspective of Professor Fleming’s “moral reading” of, or “philosophic approach” to, the Constitution. I propose a somewhat different opposition: empirical reading versus moral reading. Empirical reading is necessarily originalist, but it focuses directly on the need to ground interpretation in theories of concepts, language, and communication. In this short comment, I outline the research agenda for a theory of empirical reading, explore the extent to which empirical readings and moral readings of the Constitution are …

The Moral Reading As A Practice: A Response To Three Comments On Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

In recent years, many originalists have claimed a monopoly on concern for fidelity in constitutional interpretation. In my book, Fidelity to Our Imperfect Constitution, 1 I reject originalisms—whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a “moral reading” of the United States Constitution, or a “philosophic approach” to constitutional interpretation. I refer to conceptions of the Constitution as embodying abstract moral and political principles—not codifying concrete historical rules or practices—and of interpretation of those principles as requiring normative judgments about how they are best understood—not merely historical research to discover relatively …

A Nonoriginalism For Originalists, Jamal Greene

Faculty Scholarship

Originalism is an ideology, not a practice. It is a brand, an affiliation, a set of background principles, an often unstated set of restorative commitments. As James Fleming says in his book, Fidelity to Our Imperfect Constitution, originalism is an "ism." As an "ism," Fleming writes, originalism did not exist before the 1970s: "Constitutional interpretation in light of original understanding did exist, but original understanding was seen as merely one source of constitutional decision-making among several-not as a general theory of constitutional interpretation, much less the exclusive legitimate theory."

This brief Comment on Fleming's book takes the practice Fleming identifies---"constitutional …

Rule Originalism, Jamal Greene

Faculty Scholarship

Constitutional rules are norms whose application depends on an interpreter's identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assumption that the Constitution's more specifw or structural provisions support straightforward interpretive inferences. Normatively, this Article offers a partial defense of what it calls "rule originalism," grounded in the fact of its …

The Moral Reading All Down The Line, James E. Fleming

Faculty Scholarship

Michael W. McConnell has written an elegant and illuminating article about constitutional interpretation.' He seeks to show how five major methodological approaches fit together. The five approaches he discusses are: "originalism, precedent, longstanding practice, judicial restraint, and living constitutionalism (here called the normative approach)."'2 He distinguishes two camps with respect to these approaches. One camp, he notes, "advocates for (or against) a particular approach ... on the assumption that these approaches are mutually inconsistent and that the task is to determine which is best . . . .3 The other camp "treats the various common approaches as mere tools in …

Interpretation, Jamal Greene

Faculty Scholarship

Interpretation is the means by which the Constitution and its clauses are brought to bear on actual cases and controversies. Although much of the Constitution appears self-explanatory, as with its requirement that the president be at least thirty-five years old, much is subject to reasonable disagreement. The approaches to interpretation that form this chapter’s subject are the main tools scholars and judges have developed to resolve that disagreement. Those tools encompass five domains of argumentation, broadly conceived: text, history, structure, precedent, and consequences. As a general matter, interpretation that draws on resources wholly outside these five domains — via an …

Fidelity, Change, And The Good Constitution, James E. Fleming

Faculty Scholarship

In thinking about fidelity and change in constitutional interpretation, many have framed the basic choice as being between originalism and living constitutionalism. Consider, for example, Jack M. Balkin’s Living Originalism, Robert W. Bennett and Lawrence B. Solum’s Constitutional Originalism: A Debate, and John O. McGinnis and Michael B. Rappaport’s Originalism and the Good Constitution. I shall argue for the superiority of what Ronald Dworkin called “moral readings of the Constitution” and what what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. By “moral reading” and “philosophic approach,” I refer to conceptions of the Constitution as …

The Means Principle, Larry Alexander

Faculty Scholarship

Michael Moore believes there are deontological constraints on actors’ pursuit of good consequences. He believes these constraints are best conceived of as agent-relative prohibitions such as “you must not intentionally kill, batter, rape, steal, etc.” I, joined in recent years by Kimberly Ferzan, believe that the best interpretation of deontological constraints — the interpretation that best accounts for our intuitions about certain stock cases — is that they are constraints on the causal means by which good consequences may be achieved. We believe those constraints can be unified under a single deontological principle, what we call the “means principle.” It …

The Inclusiveness Of The New Originalism, James E. Fleming

Faculty Scholarship

In tracing the arc of originalism from the old originalism to the new, I observe a shift from an exclusionary outlook to an inclusionary outlook, reflected in new originalists’ proclamations that “we are all originalists now.” As my title suggests, I am going to bring out the inclusiveness of the new originalism and ponder its implications. The new originalists have emphasized two developments: (1) the movement from a focus on “intention of the framers” to “original public meaning” and (2) the articulation of and emphasis on the distinction between interpretation and construction. My main points are two. First, the inclusiveness …

Fit, Justification, And Fidelity In Constitutional Interpretation, James E. Fleming

Faculty Scholarship

With this event – a Symposium on Abner Greene’s Against Obligation2 and Michael Seidman’s On Constitutional Disobedience3 – we continue our Boston University Law Review series of symposia on significant recent books in law. The distinctive format is to pick two books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty members to write an essay on one or both books.

Are We All Originalists Now? I Hope Not!, James E. Fleming

Faculty Scholarship

In recent years, some have asked: “Are we all originalists now?” My response is: “I hope not!” In the Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that …

The New Originalist Manifesto, James E. Fleming

Faculty Scholarship

Lawrence B. Solum and Robert W. Bennett's excellent book, Constitutional Originalism: A Debate, calls to mind a famous book in political philosophy, J.J.C. Smart and Bernard Williams's Utilitarianism: For and Against.' Both works pair two spirited yet fair-minded scholars in a constructive debate between two competing views prevalent in their fields. Originalism has a reasonable, programmatic, and inclusive proponent in Solum, and living constitutionalism has a capable, pragmatic, and effective champion in Bennett.

Pathetic Argument In Constitutional Law, Jamal Greene

Faculty Scholarship

Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle's classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse-think of "Poor Joshua!"- but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of …

Living Originalism And Living Constitutionalism As Moral Readings Of The American Constitution, James E. Fleming

Faculty Scholarship

With this event – A Symposium on Jack Balkin’s Living Originalism and David Strauss’s The Living Constitution – we launch a Boston University School of Law series of symposia on significant recent books in law. The distinctive format is to pick two significant books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty to write an essay on one or both books.

What are the justifications for pairing Balkin’s Living Originalism1 and Strauss’s The Living Constitution2 in …

Why The 'Originalism' In 'Living Originalism'?, Hugh Baxter

Faculty Scholarship

Jack Balkin’s "Living Originalism" (2011), together with the companion volume "Constitutional Redemption," is an extraordinary achievement that secures his position in the front rank of American constitutional theorists. In those works, Balkin develops a constitutional theory he identifies alternatively as “living originalism” and as “framework originalism.” In this latter expression, Balkin distinguishes two senses of the term “framework.” In the first sense of “framework,” the Constitution establishes a framework for governance and politics. The second sense of “framework” derives from the first. Governance, Balkin argues, involves state-building and constitutional construction by the political branches, not just by the courts. Social …