Originalism 101 (Part II)

Yesterday, I started my reaction to Larry Solum’s Legal Theory Lexicon entry on Originalism.  In that post, I discussed The Origins of Originalism and Positive and Normative Approaches to Originalism.  Today I will complete my discussion by addressing The New Originalism and Constructionist Originalism, and Precedent.

3.  The New Originalism and Constructionist Originalism

In a section entitled “Original Public Meaning, Larry discusses both the original public meaning approach and the emergence of the new originalism.

While Larry’s discussion is accurate, I would break up the matters differently.  First, I don’t like the term “the new originalism,” even though it is a very popular term.  Part of the problem is that it is a vague.  Sometimes it refers to the original public meaning approach as opposed to the original intent approach.  Other times it refers to people who embrace construction as a distinct enterprise from interpretation.

But some people who endorse original public meaning, do not endorse (or do not appear to endorse) construction.  Similarly, some people endorse construction, but do not endorse original public meaning (such as Keith Whittington).  One might talk of original public meaning as the new originalism and construction as the new new originalism.  But this all gets confusing and it is better to use a finer grained terminology.

Let me try to clarify matters.  There are two issues: whether one factors original intent or original public meaning, and whether one favors construction or not.  One might therefore break this into a two by two matrix with four possibilities, except I can’t figure out how to do this on the blog.  So let me describe it with four lines:

a.  Original intent plus construction –Whittington

b.  Original public meaning plus construction – Solum, Barnett, Balkin

c.  Original intent plus no construction – Raould Berger?

d.  Original public meaning plus no construction – McGinnis & Rappaport, Scalia

Finally, I should note that there are even newer versions of originalism.  For example, there is original methods originalism, the position that John McGinnis and I defend, which has been endorsed by other originalists, such as Steve Calabresi.  I suppose we could be considered the new new new originalists, but that is just silly.

4.  Precedent

Larry also discusses the question of precedent, noting that some originalists accept precedent while others argue that the original meaning should be followed rather than precedent.  One can analyze this issue further.  Some originalists have analyzed this issue in terms of general jurisprudence, claiming that originalism necessarily precludes precedent.  Others, however, look at the question by analyzing the constitutional text.  Some, such as Gary Lawson, argue that the Supremacy Clause requires that the constitutional text rather than precedent be followed.  Others, such as John Harrison, John McGinnis, and myself, argue that the constitutional text allows precedent but (for the most part) does not require it.  Instead, the Constitution treats precedent as general common law that is revisable by congressional statute.  Still others such as Lee Strang argue that the judicial power incorporates into the Constitution a particular precedent approach.

If the Constitution does allow precedent, then the question is what type of precedent approach should be employed.  John McGinnis and I advocate generally follow the original meaning except in certain limited situations, such as when a precedent has been widely and strongly accepted or when overturning it would create enormous costs.  I believe that Larry Solum has endorsed following precedent pretty strictly, but his version of precedent involves a much narrower understanding of what precedent covers than the modern version of the doctrine, which largely identifies the precedent with what the court says it is holding.

Reader Discussion

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on March 29, 2012 at 13:23:06 pm

Professor Rappaport,

If you would be so kind, I am a little unclear as to whether your take on originalism is concerned only with what, or whether it also considers the why. That is, are originalist inquiries satisfied by what the founders meant or what the interpretive rules were, or does it also demand to know why, for example Congress was authorized to create lower courts, or why the drafters limited appropriations for the army to two years, why bills regarding the raising of revenue should originate in the House but not the Senate, why only the Senate need consent to presidential appointments, etc.?

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on April 03, 2012 at 12:42:19 pm

I found this site through the Library of Liberty site. Revisiting our beginning is what a citizen should do from time to time. Refresh the memory and check for drift. Drift is the Republic killer. Drift is the death of freedom. Drift is what my fellow citizens keep doing. Drift is wrong.

Of course, drift does not apply to the Federal government and its assistants. No, they can trash the system without penalty. They've been trashing the system for a very long time.

They get help from the educational entities to indoctrinate a stupidity in both the political and legal areas. However, this process begins at the beginning of schooling, so that by the time the student enters higher education, emptiness is waiting for drift to enter. It's a rather tidy setup, and better so with the quickening pace of modern life. There's no time for reflection - checking and balancing.

Been reading these papers on Originalism. Lots of them --- Lots. I've got a better handle on this notion, and while good people are working on it, it's trying to retard drift. Good. Judicial creation robs proper procedures from occurring. Judicial creation is harmful from not allowing the regular ways to function. Judicial creation is just more drift.

Congress. Congress is the master of drift. A lifetime is too short to cover their drift. While some may sense my concerns with Congress, there's no anger, because who could get angry with such a friendly bunch as Congress. They are a jovial lot who share their drift with the Executive, to create lots more drift too.

A thought had come to me after finishing one of these lengthy papers. With all of the work done on this topic, and being quite extensive, no one has actually written what the Constitution means or what it says, in exacting unambiguous words. I'd think that conveying so would be the purpose of the endeavor. But, hey, maybe I'm missing something?

If the Constitution is to be read in exactly one way, what is it then?
Of course, I mean in the regular words of the people.

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Eric Hodgdon
on May 01, 2012 at 15:06:41 pm

Alito opponents sholud take the rule of law seriously and respect the institution of the courts.They can't do that, and continue what they're doing.Once you start having emanations from penumbras leading to the complete abolition of laws that have been around since the beginning of the country, you've given up on the concept of "rule of law."Challenge Alito in a way that also expresses a sound theory of constitutional interpretation.Having a "sound theory" would require them to have principles. Let's define a principle here:A principle is a rule that can lead to results you don't like, and that you still follow and accept even when the results you don't like occur. (IOW, "I sholud always get my way" is not a principle. "The majority sholud always get their way" is a principle (not necessarily a good one).)The only rule the liberals have followed is "we sholud get whatever we want" (if individual liberty mattered, the "liberals" would not have all voted for the Federal Government and against Raich).Work on a way to convince ordinary people that approaches other than originalism deserve respect.But it is the only approach worthy of respect, because it's it's the only one based on valuing the rule of law, and democracy. The others are based on the whims of unelected and unaccountable would-be dictators.Help people care and believe in the individual rights you want courts to protect.If they were willing to do that, IOW if they were willing to value democracy, they wouldn't be pushing to give supreme power to people who are not accountable to the voters.Besides, it's not "individual rights" that liberals value, it's merely the avoidance of individual responsibility that liberals value. Thus their embrace of abortion as the one true sacrament.Playing from the Legal Realism side, from an assumption that law is a kind of politics, empowers your opponents to say -- as they've been saying ad nauseam -- that you only want judges who will legislate from the bench.Of course the opponents say that. It's the truth, after all.

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on May 03, 2012 at 23:46:41 pm

, though it's an awuflly elegant and thoughtful way to respond to an anonymous manure-slinger.I think the Bush v. Gore issue has become very similar to subjects like abortion rights, issues so complicated in their philosophical, legal and technical details that, as you said, are glossed over in search of a conclusion favorable to a predetermined outcome.I often wonder about what purpose people like "Armando" (or insert your favorite right-wing Armando type here) serve. They certainly don't exist to persuade people of differing viewpoints to accept their ideas. They don't exist to arm like-minded people with solid, reasonable facts with which they can better argue their position. They're not particularly entertaining or stylish in their tirades. I've decided that they must serve the same function as drill sergeants: to instill fear and numbness in their flagging troops by screaming and shouting at maximum volume. They make sure everyone is marching in line, and woe to the soldier who balks at the torrent of obscenity-laced orders. He will be shouted at and humiliated until, exhausted and blank-minded, he either submits or collapses.

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on June 09, 2012 at 21:17:13 pm

Ann: I've never understood the atctartion of legal realilsm or critical legal studies. Their adherents remind me of a group of sophists standing around listening to Euclid and then telling him that his proofs nothing more than an expression of his politics. Though these folks never learn much about geometry, their reaction does save them from a lot of hard thinking. I don't mean to suggest that law is exactly like geometry. But a good judicial decision does require that there be a rational justification for the premises relied on and that sound logical arguments are developed from these premises. I also wonder why legal realists and the crits don't come out of the closet and openly endorse the corollary that follows from their theories: that judicial candidates in a democrcy should actively campaign on what social policies they support and disclose exactly how they will rule on the issues that will come before them.

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on June 12, 2012 at 02:06:26 am

CriticalObserver:What a non sequitur. That Scalia-Thomas-Rehnquist-O'Connor-Kennedy would have voted dlirefentfy if Bush/Gore roles were reversed has nothing to do with whether they always vote together or whether they are "mindless fascists". I think you are too smart not to realize it. It is undisputable that these 5 judges have consistently taken a narrow view of the Equal Protection Clause, and there's virtually zero chance that they would have expanded it if the roles were reversed. The vote would have been 9-0 against Gore if the roles were reversed.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.