Law Commons^™

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

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Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …

Reconceptualizing Hybrid Rights, Dan T. Coenen

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In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and …

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

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In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration …

Wittgenstein's Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum

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Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia's death has created. "Public meaning" originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these "New Originalists" have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested-that is, we often do not seek semantic or legal agreement-makes particular linguistic indeterminacies highly problematic for approaches …

When Scalia Wasn't Such An Originalist, Michael Lewyn

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Although Justice Scalia generally described himself as an originalist, his opinion in Lucas v. South Carolina Coastal Council rejected originalist arguments. Why? This article suggests that pre-Lucas precedent and the ambiguity of the historical record might justify his methodology.

James Wilson In The State House Yard: Ratifying The Structures Of Popular Sovereignty, Ian C. Bartrum

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There is an excellent (and rapidly growing) literature examining the influence of James Wilson's Scottish philosophical education on his later political ideas. In this Article, Professor Ian Bartrum makes two contributions to that scholarship. First, he reexamines several of the most important Scottish moral sentimentalists with a particular focus on the specific ontological and epistemological accounts that influenced Wilson. Second, he dissolves the seeming contradictions in Wilson's political thought by showing that, while he understood that representative bodies were essential to legitimate government, he nonetheless distrusted these institutions because they work to obscure, or even subvert, their members' individual experience …

Two Dogmas Of Originalism, Ian C. Bartrum

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In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at …

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

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From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …

Originalist Ideology And The Rule Of Law, Ian C. Bartrum

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This essay contends that one of the basic tenets of the "New Originalism" -- the so-called "contribution thesis" -- compromises our underlying commitment to the rule of law. By locating some binding substantive content of constitutional language in a historical record beyond the text itself, originalism undermines the fundamental concepts of formal legality and public accessibility. With these issues in mind, the essay concludes that originalism is not a philosophical account of how the Constitution has meaning in our legal system, but is instead a judicial ideology intended to promote the constitutional policy judgments of an earlier generation.

The Death Of Suspicion, Fabio Arcila Jr.

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This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

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A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

A Response To Professor Steinberg’S Fourth Amendment Chutzpah, Fabio Arcila

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Professor David Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether …

Originalism And Indeterminacy, Thomas B. Mcaffee

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Perhaps the most universal objection to originalism is that it is impossible; that is, the materials relied upon by originalists simply do not yield determinant answers to any worthwhile questions. This indeterminacy objection lacks significant force for at least three reasons. First, the claim that the interpretive materials are always indeterminate vastly overstates the extent and importance of the uncertainties involved; consequently, originalism's critics understate the importance of the originalist canon as a tool for reducing the degree of indeterminacy in constitutional interpretation. Once it becomes clear that originalist methodology can provide some definitive answers, even if significant indeterminacy remains, …

Reed Dickerson’S Originalism — What It Contributes To Contemporary Constitutional Debate, Thomas B. Mcaffee

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In this article the author offers his personal gratitude for the work of Reed Dickerson, along with some thoughts on his important contributions to our understanding of the interpretive process. As a young scholar in need of help in grappling with the continuing debate over constitutional interpretation, the author turned, at the suggestion of colleagues, to Reed Dickerson’s impressive book on statutory interpretation. The hours spent attempting to ingest Reed’s thoughtful work were amply rewarded, and the author took the occasion of publishing an article on the original intent debate to refer in an initial footnote to his intellectual debt …