California Franchise Tax Board (Image: Flint Builders).Originalism and Article III Judicial Power
(shutterstock.com)State Sovereign Immunity: Originalist Challenges and Will Baude’s New Article
The Confirmations Wars are not Partisan, but Principled
It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around or oppose policies or nominees of the sitting President, simply by virtue of his party. And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.
But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.
The Democratic judicial philosophy has also become clearer. At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.
The confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.
Once and Future Originalism
A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport. It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously. One of those critics, Richard Primus, has blogged about the conference in a friendly manner. Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists believe that originalism has never been tried before. I have never heard such a bald assertion from my colleagues.
And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.
A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.
Baude on Tillman on the Constitution’s Provisions Regarding Officers
One of Justice Scalia’s primary influences on constitutional law and theory has been the growth of originalist textualism – the view that takes close textual readings of the Constitution seriously and draws important consequences for constitutional law from the text rather than someone’s view of what is normatively desirable. One of the people who has a particular keen interest in such textual differences and their consequences is Seth Barrett Tillman, who has over the last several years sought to closely examine seemingly minor textual variations and to draw significant consequences from them.
In Jotwell, the Journal of Things We Like, Will Baude summarizes and appreciates Seth’s scholarship in this area. Will explains how Seth has looked at various terms in the Constitution — “Officer,” “Officers of the United States,” “Officer under the […] United States,” “Public Trust under the United States,” “Offices of Honor/Trust/Profit under the United States,” and “Office under the Authority of the United States.” Could each of these terms really have distinct meanings? For many years, even originalist textualists have often assumed the answer is no.
But Seth argues there are important differences between these terms. Will discusses some of the interpretations and evidence that Seth has used to justify these distinctions. And he has an extremely useful chart with all six categories and the meanings offered by Seth.
The Court’s Alleged Power to Ignore the Original Meaning
In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism. Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument. I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning…
