The Fallacy of the "New Originalism"

Earl Maltz emaltz at camden.rutgers.edu
Sat Sep 2 08:27:38 PDT 2006


I've looked at the decisions in detail (see my book, The Fourteenth 
Amendment and the Law of the Constitution, or the predecessor AJLH article 
Fourteenth Amendment Concepts in the Antebellum Era) and my impression of 
the state of the law is quite different than yours.  To be sure, like most 
legal concepts, the reach of the due process clause was unclear at the 
margins. But in any event (to paraphrase Heidi Klum) some things were 
clearly in and some were clearly out.

But even if one takes the view that the due process language had been 
interpreted as nothing more than a general command to be fair, the question 
is whether fairness was to be measured by the standards of 1868 or the 
standards of current morality.  None of the debates suggest  an 
understanding that the members of the 39th Congress thought they were 
constitutionalising evolving standards of decency or any similar concept.

At 07:48 AM 9/2/2006 -0700, Rosenthal, Lawrence wrote:
>Senator Sherman and his colleagues presumably understood that they were 
>producing a legal document when he wrote the Sherman Act, but given the 
>language he used, it was nearly impossible to interpret it other than as a 
>command to produce a common law of antitrust.  In his article of 
>translation, Larry Lessig makes what I regard as a quite elegant argument 
>that fidelity to original meaning could require the courts to treat the 
>Sherman Act as common law that would evolve as economic conditions and the 
>courts' understanding thereof evolved.  Title VII was similar.  The term 
>"discriminate" could mean any number of things; and courts were forced to 
>flesh out its meaning pragmatically with little help from the original 
>understanding to guide them.  Some statutes -- and constitutional 
>provisions -- may well have an "original public meaning" that embraces 
>only a broad (and therefore politicall unobjectionable) principles and 
>anticipates that the courts will evolve a common law to give it 
>substance.  The "original meaning" of the due process clause under the 
>decions to which Bingham alluded was not much more than "be fair."  Courts 
>could only "interpret" this general command by treating it as an 
>authorization to make a common law of due process.  Given the state of due 
>process jurisprudence in 1868, courts really had no way of "interpreting" 
>the due process clause to address, for example, the question of how a 
>defendant located in one state could be haled into court in another.  A 
>statute or constitutional text that elaborates only a very general 
>principle to be developed through common law adjudication is still a legal 
>document -- indeed in Federalist 78 and Madison's statements in the House 
>in support of the Bill of Rights, the Constitution is described as just 
>that kind of document.
>
>Larry Rosenthal
>Chapman University School of Law
>
>________________________________
>
>From: Earl Maltz [mailto:emaltz at camden.rutgers.edu]
>Sent: Sat 9/2/2006 4:26 AM
>To: Rosenthal, Lawrence; conlawprof at lists.ucla.edu
>Subject: Re: The Fallacy of the "New Originalism"
>
>
>
>The fact that Bingham may have misunderstood the applicable law is not
>relevant to my point, nor is the possiblity (which I would dispute) that
>due process jurisprudence was in a "primitive" state in 1868.  The fact
>remains that Bingham (and everyone else) understood that they were
>producing a LEGAL document, to be interpreted by reference to distinctively
>legal principles, rather than evolving principles of equality and fairness
>or some similar concept.
>
>At 10:48 PM 9/1/2006 -0700, Rosenthal, Lawrence wrote:
> >Moreover, when Bingham said that "the courts have settled that long ago,"
> >Bingham was quite engaging in quite wishful thinking.  The scope and
> >meaning of due process was entirely unclear in 1868.  The Supreme Court
> >had departed from the British understanding (most notably in Murray's
> >Lessee) but had not replaced it with anything very clear.  Given the
> >primitive state of due process jurisprudence in 1868, the courts were
> >inevitably going to have to flesh out the concept through a nonoriginalist
> >process of common law adjudication, as I will argue in an article I am
> >about to complete about procedural due process.
> >
> >Larry Rosenthal
> >Chapman University School of Law
> >
> >
> >Message: 3
> >Date: Thu, 31 Aug 2006 21:49:29 -0400
> >From: "michael curtis" <curtism at bellsouth.net>
> >Subject: Re: The Fallacy of the "New Originalism"
> >To: "Frank Cross" <crossf at mail.utexas.edu>,     "Keith E. Whittington"
> >         <kewhitt at princeton.edu>,        "Earl Maltz"
> > <emaltz at camden.rutgers.edu>
> >Cc: CONLAWPROF at lists.ucla.edu
> >Message-ID: <015001c6cd68$dd243bb0$1805fea9 at MCurtis>
> >Content-Type: text/plain; format=flowed; charset="iso-8859-1";
> >         reply-type=response
> >
> >But of course Bingham thought due process required equal protection and that
> >the due process clause outlawed slavery in the territories and the District
> >of Columbia. So he clearly was not embracing a reading based purely on past
> >precedent.
> >
> >Michael Curtis
> >----- Original Message -----
> >From: "Earl Maltz" <emaltz at camden.rutgers.edu>
> >To: "Frank Cross" <crossf at mail.utexas.edu>; "Keith E. Whittington"
> ><kewhitt at princeton.edu>
> >Cc: <CONLAWPROF at lists.ucla.edu>
> >Sent: Monday, August 28, 2006 8:54 PM
> >Subject: RE: The Fallacy of the "New Originalism"
> >
> >
> > > The claim that "due process" was meant to be adaptive is wrong as a 
> matter
> > > of historical fact.  When asked during the debates what "due process"
> > > meant, John Bingham replied "the courts have settled that long ago, and
> > > the gentleman can go and read their decisions."
> > >
> > > At 06:59 PM 8/28/2006 -0500, Frank Cross wrote:
> > >
> > >>To me, the important issue has been ignored.
> > >>That is the meaning of originalism, when the current meaning of the text
> > >>seems to differ from its original meaning.
> > >>I have spoken with some supporters of originalism who seem to accept that
> > >>the current meaning prevails.  In many cases, use of the current meaning
> > >>might well prevail out of original imeaning -- when the document was
> > >>written, the choice of vague language (due process, cruel and 
> unusual) was
> > >>meant to be adaptive.
> > >>
> > >>But this would seem to considerably reduce the practical significance of
> > >>originalism, to put current meaning ahead of original meaning in case of
> > >>conflict.
> > >>
> > >>
> > >>At 06:46 PM 8/28/2006, Keith E. Whittington wrote:
> > >>>Content-class: urn:content-classes:message
> > >>>Content-Type: multipart/alternative;
> > >>>         boundary="----_=_NextPart_001_01C6CAFC.3F845C2F"
> > >>>
> > >>>I think originalist theory has been pretty explicit about this for the
> > >>>past, oh, 20 years or so (I must confess I think too much can be made of
> > >>>the distinction between original meaning and orignal intent, but
> > >>>"expectations" v. "meaning" is an important distinction).  But there are
> > >>>prominent theoretical statements and constitutional law pronouncements
> > >>>from earlier on that are not just unclear but actually emphasize
> > >>>"original expectations."  Berger often did, and assertions about the
> > >>>death penalty and the Eighth Amendment sometimes took this form.
> > >>>
> > >>>As I've written elsewhere, I think there are important points of
> > >>>convergence between originalist and non-originalist theorizing in recent
> > >>>years, but there are still important differences between 
> originalists and
> > >>>others.  Some of the differences are practical -- how should we go about
> > >>>the task of interpreting? From that perspective, someone like Dworkin
> > >>>just might be a really bad originalist, far too willing to assume that
> > >>>the original text embodies whatever principle the reader thinks would be
> > >>>normatively attractive rather than the principle that it originally had.
> > >>>No need to do the historical work, I'll just read the text!  Some of the
> > >>>differences are theoretical -- Dworkin is clear, for example, that he
> > >>>would be willing to ignore the original meaning of the text if the
> > >>>current semantic meaning of the text could support something he found
> > >>>more attractive than the original meaning.
> > >>>
> > >>>Keith Whittington
> > >>>
> > >>>
> > >>>----------
> > >>>  On 8/28/06, LAWRENCE SOLUM wrote:
> > >>>
> > >>>In fact, I think that it is simply not the case that "'original public
> > >>>meaning' originalists  rely (for the most part) on original expectations
> > >>>as to application" in the relevant sense.  Certainly Barnett does not &
> > >>>he has been quite explicit about this.  Of course, original expectations
> > >>>about application are relevant to original public meaning--as evidence.
> > >>>Original intentions are relevant in the same way--as evidence.  Of
> > >>>course, there is a good deal of originalist work that doesn't invvolve
> > >>>explicit theorizing & some of that work may not be clear as to the role
> > >>>of original expectations.  But a lack of reflection is not the same as a
> > >>>position.
> > >>>
> > >>>
> > >>>On 8/28/06, MARK STEIN
> > >>><<mailto:markstein at prodigy.net>markstein at prodigy.net> wrote:
> > >>>Both the "original intent" originalists and the "original public 
> meaning"
> > >>>originalists  rely (for the most part) on original expectations as to
> > >>>application.  So I don't think that this variegation of the theory is a
> > >>>good enough reason to claim that living constitutionalism, which rejects
> > >>>original expectations, is now the best interpretation of originalism.
> > >>>
> > >>>_______________________________________________
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> > >>>
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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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> > >>
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> > >
> > > _______________________________________________
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> > >
> >
> >
> >
> >
> >
> >
> >_______________________________________________
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