Emergencies, constitutions, Milligan and Padilla

isomin at gmu.edu isomin at gmu.edu
Fri Sep 9 15:41:41 PDT 2005


Originalism may have a "consequences be damned flavor," but the real argument for it is that it leads to superior systemic consequences than allowing judges to use other jurisprudential approaches.

I also don't agree that the only choices are to ignore reliance interests completely or to throw out originalism completely. The law is full of situations where we try to balance competing values against each other rather than say one automatically trumps the other. An originalist court can have a strong presumption in favor of following the text and original meaning, but leave open the possibility that extreme situations could override that presumption. Courts use such presumptions all the time in statutory interpretation and in common law cases.

As for what would happen in the wake of a Supreme Court decision overruling the Legal Tender Cases, much would depend on the appproach the Court took in such a hypothetical case. The Court need not order the immediate withdrawal of paper money from circulation, just as the Brown Court did not order that schools be desegregated by the very next day. I'm no expert in monetary policy, but there are probably a wide range of intermediate options it could choose in order to assure a more orderly transition that would also give time for the passage of a constitutional amendment. I do admit that there would probably be SOME serious problems, but they would probably fall well short of the cataclysmic consequences some critics of originalism imagine.

In any event, as I have indicated before, the need to deal with reliance interests is not a problem unique to originalism. ANY theory that claims there are serious mistakes embedded in existing jurisprudence must address the question of whether there are some mistakes that are just too costly or dangerous to correct.


Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/

----- Original Message -----
From: Frank Cross <crossf at mail.utexas.edu>
Date: Friday, September 9, 2005 5:44 pm
Subject: Re: RE: Emergencies, constitutions, Milligan and Padilla

> At 04:12 PM 9/9/2005, isomin at gmu.edu wrote:
> 
> >3. On the Legal Tender Cases. Based on my limited, nonexpert 
> knowledge, I 
> >think that paper money may well be unconstitutional as an 
> original matter. 
> >Would I urge courts to so rule today? Probably not because of the 
> massive 
> >built-up reliance interests. One can argue that this is a problem 
> with or 
> >an inconsistency in originalism. But other interpretative 
> methodologies 
> >face the same issues. Certainly, believers in various forms of 
> "living 
> >constitution" theories encounter situations where the decision 
> they 
> >consider legally correct would impose tremendous social costs 
> that they 
> >would prefer to avoid.
> 
> Exactly.  But originalism has a "consequences be damned" flavor, 
> so that it 
> sits poorly here.  Allowing consideration of those social costs 
> lets the 
> camel's nose into the tent.  What is "tremendous"?  Why really 
> must they be 
> so great as to be "tremendous"?  Pretty soon we have a living 
> Constitution
> >At the same time, I think the problem of paper money is less of a 
> >challenge for originalism than many suppose. If the Supreme Court 
> were to 
> >hold paper money unconstitutional, it's virtually certain that an 
> >amendment would swiftly be passed to overrule that decision. The 
> stronger 
> >criticism of originalism arises not in cases where virtually 
> everyone 
> >admits that something that might be unconstitutional is a good 
> thing but 
> >in cases where a strong MAJORITY believes so, but not quite 
> enough to 
> >force an amendment through the Article V process.
> 
> I don't think "swiftly" would quite cut it.  I think you'd have a 
> pretty 
> disastrous economic situation (not to mention some interesting 
> legal 
> issues) in even a brief interim.
> 
> 
> 
> 
> 
> >Ilya Somin
> >Assistant Professor of Law
> >George Mason University School of Law
> >3301 Fairfax Dr.
> >Arlington, VA 22201
> >ph: 703-993-8069
> >fax: 703-993-8202
> >e-mail: isomin at gmu.edu
> >Website: http://mason.gmu.edu/~isomin/
> >Content-type: multipart/alternative;
> >         boundary="Boundary_(ID_DUW56+QnwCahzmr9E8JdNw)"
> >Content-class: urn:content-classes:message
> >
> >One other point on legal tender.  By 1884, in Julliard v. 
> Greenman, 110 
> >U.S. 421, the legality of Congress's making paper money legal 
> tender had 
> >become "normalized," as it were, so that no assertion of 
> "emergency" 
> >appeared to be necessary.
> >
> >I would be interested in the views of our ostensible originalists 
> on this 
> >list about the continuing legality of paper money, given the 
> fairly hard 
> >evidence, at least according to Kenneth Dam, that the framers 
> were 
> >generally appalled by the idea.  And should Julliard lead us to 
> express 
> >some reservations about the optimistic views of Posner and 
> Vermuele (and 
> >many others) that incursions on civil liberties during times of 
> emergency 
> >generally recede, like the flood waters in New Orleans, come more 
> halcyon 
> >days?  (I actually have no well-formed views about the merits of 
> paper 
> >money, given that I can no more imagine a world without it than I 
> can 
> >imagine a world without telephones or airplanes.)
> >
> >sandy
> >_______________________________________________
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> **********************************************************
> 
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
> 


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