Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce. Critics have accused the modern Supreme Court of inventing some rights the Framers never intended while ignoring other—express—provisions. Failing to give meaning to clear constitutional text is as great a judicial dereliction as making up bogus…
A reader asked for more discussion of the Charles River Bridge decision, which I cited as a precedent against claims that taxis displaced by Uber were legally entitled to compensation. Charles River Bridge is a fascinating Supreme Court case that is largely unknown to this generation of lawyers. I remembered it only from discussions in American history class as a high school student.
The case marks the transition from the Marshall Court to the Taney Court. In fact, it was first argued under the Great Chief Justice but decided under Taney. It shows how Jacksonian democracy shifted the course of constitutional law.
The case revolved around bridges and the anti-monopoly principle. The bridges at issue spanned the Charles River in Massachusetts. That first bridge builder, the Charles River Bridge Company, argued that the state had given it a monopoly in return for building its bridge. Thus a subsequent charter to another company for building another bridge violated the provision of the Constitution which bars states from “impairing the obligation of contracts.”
Justice Taney’s opinion based his reading on the original charter for Charles River Bridge company, which he interpreted as not granting any monopoly right. But his interpretation was heavily influenced by his democratic and indeed Democratic ideals.