Posted by: mulrickillion | December 6, 2011

Recent Developments in Originalism

By Miles Pope, Dec 5, 2011 —

Though libertarianism does not commit one to originalism, libertarianism and originalism go hand-in-hand in the sense that many libertarians are also originalists (and some forcefully argue that originalism implies a libertarian polity). For readers who are originalists, I thought I would flag an interesting cluster of posts on originalism by Greg Magliocca, Jack Balkin and Lawrence Solum (Magliocca’s and Balkin’s posts: here, here, here, here, and here; Solum’s posts: here and here). The original motivation for Magliocca’s first post seems to be Stephen Calabresi and Julia Rickert’s new article arguing that the original meaning of Section One of the Fourteenth Amendment prohibits sex discrimination. (National Review’s Ed Whelan has a series of posts explaining and criticizing the Calabresi-Rickert article, to which Jonathan Adler helpfully links here.)

While there are lots of interesting points floating in the Magliocca-Balkin-Solum exchange, it is hard to get a read on the proposition under debate because Magliocca’s posts are a shifting target. He motivates his worry (whatever it is exactly) by observing that various constitutional scholars have argued that the original meaning of the Constitution is compatible with recent constitutional doctrine – abortion is a right, racial segregation and gender discrimination are unconstitutional – that marks a sharp break with points in our past. As he puts it:

Richard Nixon once said that “we are all Keynesians now,” and constitutional theory is approaching the point where we are will all be originalists. Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack [Balkin] defends the Court’s abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist. [NB: Magliocca is behind the times. Someone’s actually already told us that upholding the individual mandate is originalist. Balkin also defends affirmative action on originalist grounds]

This passage suggests that Magliocca’s concern is that scholars are making various ad hoc moves – either tweaking originalism at the theoretical level, or misapplying it to particular constitutional questions – to generate results that they find congenial for non-originalist reasons. In other words, it sounds like Magliocca’s charge will be that “originalism in action” lacks integrity; when applied to concrete constitutional problems, originalist theory and historical fact are opportunistically manipulated to make originalism seem more morally attractive and show that it yields constitutional decisions that are actually desirable on other grounds. (Presumably this manipulative project is worthwhile because of the rhetoric of originalism’s grip on the popular constitutional imagination, which makes it an effective means of advancing political ends. See e.g. Laying Claim to the Constitution, which argues that progressives had better become originalists, because originalism is the ascendant rhetoric of constitutional law.)

But then Magliocca changes tack. Instead of arguing that originalism in action is bankrupt, he focuses on high originalist theory. That is, he argues that even confining our attention to the development and justification of methods of constitutional decision-making (as opposed to the interpretation and application of those methods in the context of specific constitutional issues), calling an approach”originalist” no longer tells us anything about its commitments or implications. This leads him to defend the absurd proposition that Dworkin’s law as integrity and Strauss’s “common law constitutionalism” both qualify as originalist. . . .

Recent Developments in Originalism | Miles Pope | Libertarianism.org

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