Constitutional Law Commons^™

Profiling Originalism, Jamal Greene, Nathaniel Persily, Stephen Ansolabehere

Faculty Scholarship

Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identfy as originalists. We conclude that rule of law concerns, support for politically conservative issue positions, and a cultural orientation toward moral traditionalism and libertarianism are all significant predictors of an individual preference for originalism. Our analysis …

The Anticanon, Jamal Greene

Faculty Scholarship

Argument from the "anticanon," the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to …

A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray

Faculty Scholarship

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these …

Originalism And Summary Judgment, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Over the last several years, the Supreme Court has revolutionized modern criminal procedure by invoking the Sixth Amendment right to a jury trial to strike down several sentencing innovations. This revolution has been led by members of the Supreme Court who follow an "originalist" method of constitutional interpretation. Recent work by the legal historian Suja Thomas has raised the question whether a similar "originalist" revolution may be on the horizon in civil cases governed by the Seventh Amendment’s right to a jury trial. In particular, Professor Thomas has argued that the summary judgment device is unconstitutional because it permits judges …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Cornell Law Faculty Publications

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Michigan Law Review

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook

Nevada Law Journal

Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that comprise the due process clause of the Fourteenth Amendment. Drafted by the Reconstruction Congress in the aftermath of the Civil War, these words have been used to strike down maximum-hours legislation, permit the instruction of foreign languages in schools, and even establish the right of minors to purchase contraceptives. In light of its linguistic incongruity and the versatility of its judicial precedents, one could fairly state that the meaning of the Fourteenth Amendment's due process clause has been the subject …

The Death Of Suspicion, Fabio Arcila Jr.

Scholarly Works

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 …

Commandeering The People: Why The Individual Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims.

First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of …

Originalism, John Marshall, And The Necessary And Proper Clause: Resurrecting The Jurisprudence Of Alexander Addison, Patrick J. Charles

Cleveland State Law Review

However, to give Marshall full credit for the “choice of means” doctrine is unfair, he was not the first to lay claim to the doctrine when interpreting the Necessary and Proper Clause. Indeed, the philosophical and legal influences of John Marshall have been the speculation of scholarly discourse for some time. For instance, many legal commentators and historians have attributed the influence of Marshall's opinions to being a strong Federalist because many of his opinions echo the Federalist interpretation of the Constitution. However, Marshall's opinions were also influenced by factors that sometimes conflicted with Federalist thought. This Article does not …

Commerce, Jack M. Balkin

Michigan Law Review

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified "commerce" with the trade of commodities; originalists defending broad readings of federal power …

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Faculty Scholarship

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of …

Guns, Originalism, And Cultural Cognition, Jamal Greene

Faculty Scholarship

In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

Our Twenty-First Century Constitution, Peter L. Strauss

Faculty Scholarship

Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes – whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity …

The Limits Of Executive Power, Robert J. Reinstein

American University Law Review

Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to …

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl

Law Faculty Articles and Essays

This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and …

Originalism As Jujitsu, Kurt T. Lash

Law Faculty Publications

The Ninth Amendment presents an irresistible mystery. It speaks of "other rights" retained by the people and it prohibits interpretations which "deny or disparage" those rights. The Amendment, however, tells us nothing about what these rights are or how they can be enforced. On the one hand, this makes the Ninth rather difficult to apply. On the other hand, the lack of definitional clarity also makes the Ninth Amendment something of a desideratum for those seeking expanded judicial protection of previously unrecognized individual rights. Accordingly, the Ninth Amendment has been cited in support of everything from Dial-a-Porn to freedom from …

Heller High Water? The Future Of Originalism, Jamal Greene

Faculty Scholarship

Has originalism won? It's easy to think so, judging from some of the reaction to the Supreme Court's recent decision in District of Columbia v. Heller. The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court's history that a gun control law violated the Second Amendment, Justice Scalia's opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he …

Constitutional Borrowing, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …

Supreme Neglect Of Text And History, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Supreme Neglect: How to Revive Constitutional Protection for Private Property by Richard A. Epstein (2008).

In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the …

Selling Originalism, Jamal Greene

Faculty Scholarship

Justice Scalia has described an originalist approach to interpretation as a prerequisite to faithful application of a written Constitution. If, says he, constitutional judicial review is implicit in the notion that the Constitution is paramount law, as has been settled in this country at least since Marbury v. Madison, then that review must be guided by the ordinary tools of legislative interpretation. In a democracy, serious legislative interpretation requires that judges keep faith with the meaning of the text as understood at the time of enactment, not as desired by those judges or by anyone else who does not, …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Faculty Scholarship

A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps.

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir …

Limits Of Interpretivism, Richard A. Primus

Articles

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

An Originalism For Foreign Affairs, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …