In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach. Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning. I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document. The Convergence Thesis The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted. For many…
Archives for May 2017
Scholars regularly assert that America’s Founders were deists who desired the strict separation of church and state.
Frank Lambert, for example, writes that “the significance of the Enlightenment and Deism for the birth of the American republic, and especially the relationship between church and state within it, can hardly be overstated.” Similarly, his fellow historian Richard Hughes claims “most of the American founders embraced some form of Deism, not historically orthodox Christianity.” Although many more examples could be given, I’ll close by quoting law professor Geoffrey R. Stone, who contends that “deistic beliefs played a central role in the framing of the American republic . . . . [The] founding generation viewed religion, and particularly religion’s relation to government, through an Enlightenment lens that was deeply skeptical of orthodox Christianity.”
What to do with populations in which we can identify threats ex ante only probabilistically? This is a central issue in the U.S. debate over gun rights and gun control, and, in many respects, this debate parallels the argument over refugee admissions policy.
Going back to the tumultuous reign of Abraham Lincoln, political scientists have long been fascinated with the “Imperial Presidency,” and this interest was heightened further by the executive overreach that characterized the administration of Barack Obama. Some scholars contend that the modern presidency has morphed into a de facto monarchy, wielding power far in excess of what the Framers contemplated in Article II of the Constitution.
But that is only part of the problem. The republican form of government envisioned by the Founding Fathers rested on several essential principles that—unfortunately—became highly attenuated during the 20th century, including robust state sovereignty (federalism), the separation of powers, and the checks and balances inhering in each branch jealously guarding its power from “encroachments” by another. As James Madison memorably stated in Federalist 51, in order to keep the branches in check, “ambition must be made to counteract ambition.” It turns out that all three branches have been overly ambitious—some more than others.
In France the President cannot appoint a cabinet of his own choosing, if the legislature is controlled by a majority of the opposition party. Instead, cohabitation results, where the prime minister and most of the cabinet members reflect the views of the party with a legislative majority as much as they do the President. Thus, newly elected President Emmanuel Macron is running very hard to get a majority for his party, En Marche!, in the French General Assembly in the coming legislative elections.
One approach to constitutional originalism is called original methods originalism, which John McGinnis and I have developed. While the theory has received significant attention, the overall relationship of the different parts of the theory have not always been understood. Therefore, I thought it would be useful in a couple of posts to discuss various aspects of the theory and how they relate. In these posts, I will explore 5 different aspects of original methods originalism: 1) the basic idea, 2) the different versions of original methods, 3) the convergence thesis, 4) the language of the law thesis, and 5) the minimization…
When a young man such as Salman Abedi, the Manchester bomber, blows himself up, killing as many others as he can take with him, it is only natural for us to ask why he acted as he did. His behavior is so extraordinary, as well as evil, and so far beyond the range of normal, that we are inclined to seek for an answer in his personal psychopathology. Only the mad would do such a thing; and since he did it, we conclude that he must have been mad.
Peter Lawler’s passing has been quite painful to me as it has to so very many people who were his students, friends, and colleagues. His death means that a source of incomparable wisdom in my life is gone. One story that sticks in my mind is the time that Peter secured a rather sizable grant from a certain foundation. He had to participate in a contest of sorts for the grant. His other competitors had put together PowerPoint presentations, binders, flow charts, deploying MBA-speak to demonstrate the vital impact the money would have if they could make use of it. Peter, who never hesitated to mock MBA-speak in deadpan tones, thought the episode illustrated technocratic practices at their best, applying corporate business techniques in the realm of non-profit outreach. Peter told me that he wrote down a few lines on a scratch paper while waiting his turn to speak to the grant-making committee. He delivered his “innovative” talk in a few minutes. He focused on—what else?—virtue and human nature. Needless to say, he was chosen to receive the funding.
The Senate is broken, but eliminating the filibuster is only likely to exacerbate the underlying causes of the institution’s dysfunction.
This is not the conventional wisdom, of course, which maintains that it’s excessive minority obstruction that makes the Senate unable to pass important legislation. Proponents of this view point to the gridlock that results from the filibuster. And behind it they see ideological and partisan polarization, geographic sorting of the electorate, and the prevalence of special interest money in campaigns.
Along with Michael Rappaport, I participated in Michael McConnell’s “Big Fix” conference, held at Stanford Law School this past week. “Should We Amend the Constitution?” was the subtitle of the fun event. You can talk me into that, provided law profs don’t get to vote. A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution (for example, by importing the European and Canadian courts’ “proportionality” tests into our ConLaw, which I had thought could not get any worse). Others sought to make the republic yet more “democratic”—an endeavor that for n reasons, some ably stated by Brother Rappaport, merits firm resistance and, in the event of success, a bulk purchase of OxyContin.