Non-originalist opinions

[Rosenthal, Lawrence]

Brown v. Board of Education may not have expressly and unambiguously the rejected original meaning of the Fourteenth Amendment, but it came pretty close.

 

Larry Rosenthal

Chapman University School of Law

 

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Richard Dougherty
Sent: Monday, April 20, 2009 1:38 PM
To: griffin, stephen m; Mitch Berman; CONLAWPROF at lists.ucla.edu
Subject: Re: Non-originalist opinions

 

A couple of people have mentioned Blaisdell.  But I'm not sure if the original question allows that answer -- if I have the question right.  The question, I take it, is where the Court has avowedly rejected original meaning.  But in Blaisdell the Court seems to go to great lengths to argue that it is supplying the original meaning.  E.g.: "But where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details. That is true of the contract clause. The necessity of construction is not obviated by [p427] the fact that the contract clause is associated in the same section with other and more specific prohibitions. Even the grouping of subjects in the same clause may not require the same application to each of the subjects, regardless of differences in their nature."
I think the same might be said of Brown.

Not that either interpretation is correct, but the examples might not respond to the question asked.  I would be very interested in a reply that did so (thought I can't think of a case myself).

Richard Dougherty


-----Original Message-----
From: "Griffin, Stephen M" <sgriffin at tulane.edu>
Sent 4/20/2009 2:52:54 PM
To: "Mitch Berman" <MBerman at law.utexas.edu>, CONLAWPROF at lists.ucla.edu
Subject: RE: Non-originalist opinions

This is similar to something Keith Whittington said in his book on originalism.  I thought then the question doesn’t get to the point because wouldn’t this be against the conventions of judicial opinion writing?  Consider a generalization of the question – how many decisions of the Court acknowledge there are powerful arguments against the holding but then shrug and decide the case with an “oh well, we don’t buy those arguments, case decided?”  Doesn’t strike me as very realistic.  Judicial opinions are constructed to persuade and do not necessarily concern themselves with refuting all arguments against the holding.

 

What we should look for are opinions where the circumstances show that the Court knows there is substantial evidence of original meaning against the holding.  Then you have some candidates – probably Blaisdell, Adamson (especially Frankfurter’s reaction to Black’s dissent), and, of course, Brown.

 

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mitch Berman
Sent: Monday, April 20, 2009 2:22 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Non-originalist opinions

 

Larry Alexander has asked me to ask this question of y’all:

 

Can anyone point us to Supreme Court opinions that acknowledge that the original meaning (authorially intended, public meaning, etc.) of some provision or clause was in fact X, or very probably was X, and yet end up endorsing some competing interpretation, Y?

 

Thanks in advance.

 

Mitch Berman

The University of Texas at Austin

 

 

 

 

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