orginalism

June 23, 2015|Conservatism, Eric Posner, Fusionism, Ideology, jurisprudence, Libertarianism, orginalism, Supreme Court

Why Democratic Justices are More United than Republicans

It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.

We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.

The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.

April 4, 2014|Akhil Amar, Anthony Bellia, Brad Clark, Caleb Nelson, orginalism, original methods originalism, Stephen Sachs

Thickening Originalism

by John O. McGinnis|

The most important recent development in originalism has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law. This recognition has led to at least four different ways in which originalism has been thickened.

First, whole clauses in the Constitution are not comprehensible without understanding a complex body of preexisting domestic law, including rules of interpretation, of which most modern readers would be oblivious. A fine example of the importance of this approach is the article Preemption by Caleb Nelson. Here Nelson shows that the phrase “anything in the law notwithstanding” which appears at the end of the Supremacy Clause in Article VI, is not just verbal filler but a familiar kind of legal signal called “non-obstante” clause. It was added to the Constitution to block a rule of interpretation that required courts to harmonize prior statutes with subsequent statutes even if on their face there was an appearance in conflict. This discovery has real bite: it indicates that there is no general presumption against preemption.

Second, it is not only domestic rules that form the background for fixing constitutional meaning. In The Law of Nations as Constitutional Law, Anthony Bellia and Brad Clark suggest that provisions, like the President’s power to send and receive ambassadors, and the Congress’s authority to declare war, can be understood only by reference to background principles of the law of nations. This article too has much contemporary relevance since it justifies application of the settled principles of the law of nations to override state law to protect such Article I and Article II powers of the federal government.

Two other examples of thickening originalism may even have more far reaching consequences because they are not focused on specific clauses, but are of general application.

March 10, 2014|Akhil Amar, intepretation, orginalism, Philip Bobbitt

America’s Unwritten Constitution

by John O. McGinnis|

I recently finished Akhil Amar’s America’s Unwritten Constitution and strongly recommend it to anyone interested in constitutional law. That is not because I agree with all of it. As I get older, I find the most important aspect of a great book is its capacity to enlarge the ideas I can entertain as interesting and plausible rather than to compel my agreement.

America’s Unwritten Constitution sets forth a variety of ways that an interpreter of the Constitution can look beyond the text’s words to interpret and implement it today. Some are ways that are always compatible with originalism. As Mike Rappaport and I do in our own book, Amar shows that context and the methods of interpretation at the time of its enactment are indispensable to understanding the Constitution. Others are also compatible with originalism if properly done, as when Amar looks to the early practices of the republic to clarify meaning or takes account of precedent. Other methods, as I will argue in a follow up post, are less compatible with originalism, but they also describe as matter of fact how the Court has given effect to constitutional law.

The book shows a lifetime of constitutional study on every page. Its tone is a model of what scholarship should be. If Yeats is right that prose is arguing with others and poetry is arguing with oneself much of this is poetry. Different sides of argument are given their due before Amar comes to judgment. And it is wonderfully written.

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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