Non-originalist opinions
Miguel Schor
mschor at suffolk.edu
Tue Apr 21 15:49:00 PDT 2009
I agree with Lori and thought Jamal Greene's paper
very interesting as well. I have a different take
on why originalism is such a divisive issue in the
US and of little moment abroad in a paper (please
excuse the shameless self-promotion, :) I will soon
post on SSRN entitled "The Strange Cases of Marbury
and Lochner in the Constitutional Imagination." The
argument is that Lochner exposed the problem of
judicial power not only in the US but abroad as
well. Polities abroad generally dealt with this
problem by crafting stronger mechanisms of political
accountability for courts. The US, on the other
hand, is stuck with a court that is remarkably free
of political restraints compared to other national
high courts. Thus, we turned to judicial
self-regulation. At best, originalism is a second
best (and highly divisive) solution to the problem
of power as external constraints are generally
better than internal ones.
Miguel Schor
Associate Professor of Law
Suffolk University Law School
120 Tremont St.
Boston, MA 02108
617-305-6244
SSRN Webpage http://ssrn.com/author=469730
---- Original message ----
Date: Tue, 21 Apr 2009 14:26:23 -0400
From: Lori Ringhand <ringhand at uga.edu>
Subject: Re: Non-originalist opinions
To: "Nareissa L. Smith" <nsmith at fcsl.edu>
Cc: "'CONLAWPROFS professors'"
<conlawprof at lists.ucla.edu>
>Jamal Greene has a very interesting paper up on
SSRN regarding the
>question of why it is that the US, somewhat
uniquely among
>constitutional democracies, embraces originalist
arguments. I've copied
>the abstract and link below.
>
>http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1357541
>
>For all its proponents' claims of its necessity
as a means of
>constraining judges, originalism is remarkably
unpopular outside the
>United States. Recommended responses to judicial
activism in other
>countries more typically take the form of
minimalism or textualism. This
>Article considers why. I focus particular
attention on the political and
>constitutional histories of Canada and Australia,
nations that, like the
>United States, have well-established traditions
of judicial enforcement
>of a written constitution, and that share with
the United States a
>common-law adjudicative norm, but whose judicial
cultures less readily
>assimilate judicial restraint to historicist
claims. I offer six
>hypotheses as to the influences that sensitize
our popular and judicial
>culture to such claims: the canonizing influence
of time; the
>revolutionary character of American sovereignty;
the rights revolution
>of the Warren and Burger Courts; the
politicization of the judicial
>nomination process in the United States; the
accommodation of an
>assimilative, as against a pluralist, ethos; and
a relatively
>evangelical religious culture. These six
hypotheses suggest, among other
>things, that originalist argument in the United
States is a form of
>ethical argument, and that the domestic debate
over originalism should
>be understood in ethical terms
>
>Nareissa L. Smith wrote:
>>
>> I’ve been following this thread with interest
and a few points strike
>> me. I guess these are questions for those that
consider themselves
>> true originalists.
>>
>> 1. As Professor Schor said, and I do not
believe this has been
>> addressed, why are we as a nation so tied to
the concept of
>> originalism? This is something I have
difficulty understanding,
>> especially since originalists seem to believe
that any constitutional
>> argument can be won simply by saying “this is
what the framers
>> intended.” The problems with this approach
are manifold, but include,
>> inter alia: 1) the fact that the founders were
human; 2) the fact that
>> on some points, the historical evidence and
even the plain meaning of
>> the words can be disputed; and 3) the
constitution was a limited
>> document, and could not and did not foresee
much of what happened in
>> American history, thus the 20-odd amendments
that followed. So, my
>> question is, even if one could determine that
“X” was the original
>> intent of the framers, why should we be bound
by that as if it is the
>> ultimate trump card? I’m not saying it
shouldn’t be considered, but
>> why MUST this evidence carry the day, rather
than being one factor?
>>
>> 2. I don’t think that the originalists have
fully decided how to deal
>> with the Fourteenth Amendment. My old Crim Pro
professor Andy Taslitz
>> has written about how the Fourteenth Amendment
“mutated” the Fourth
>> Amendment into something the Founders could not
have foreseen. Why is
>> this not so with the rest of the document?
>>
>> 3. Women were completely excluded from the
document (See Abigail Adams
>>
<http://www.thelizlibrary.org/suffrage/abigail.htm>)
and many of the
>> Founders owned slaves. For me, that makes much
of the Founder’s intent
>> on these issues at best non-existent, and at
worst evinces the clear
>> intent that these groups were to be excluded
from the body politic for
>> all time. I actually had the opportunity to ask
Justice Scalia if an
>> originalist interpretation could garner rights
for these groups, and
>> he told me how he thought an originalist might
decide Brown, but it
>> wasn’t the same. Can someone here address
this question?
>>
>> For my two cents, I definitely think
originalism has its place. But
>> why can’t it be a more limited place? Can we
agree that originalism
>> should carry more weight when say, we are
talking about qualifications
>> to hold office, which change little over time,
and less weight when we
>> discuss current social issues? Again, why must
originalism be the
>> alpha and omega of the discussion?
>>
>> Nareissa
>>
>> Nareissa L. Smith
>>
>> Assistant Professor
>>
>> Florida Coastal School of Law
>>
>> 8787 Baypine Rd.
>>
>> Jacksonville, FL 32256
>>
>> (904) 680-7674
>>
>> *From:* conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] *On
Behalf Of *Steven Jamar
>> *Sent:* Tuesday, April 21, 2009 12:32 PM
>> *Cc:* 'CONLAWPROFS professors'
>> *Subject:* Re: Non-originalist opinions
>>
>> I agree entirely that there is "a lot of
material to sift through" to
>> understand the meaning of the Constitution.
This little side dispute
>> between Prof. Green and me started when he took
issue with my
>> assertion that we today are not bound to an
understanding of the
>> Constitution as it existed in a far different
time from today by
>> citing his interesting article on
interpretation and claiming that in
>> fact we are bound by the Constitution because
of the oath provision.
>>
>> My point was and is on the substantive one that
we are and cannot be
>> bound by precisely what was meant 230 years
ago. From Prof. Green's
>> latest post, I think he was and is talking
about something else.
>>
>> Steve
>>
>> --
>>
>> Prof. Steven D. Jamar vox: 202-806-8017
>>
>> Associate Director, Institute of Intellectual
Property and Social
>> Justice http://iipsj.org
>>
>> Howard University School of Law fax:
202-806-8567
>>
>> http://iipsj.com/SDJ/
>>
>> "The aim of education must be the training of
independently acting and
>> thinking individuals who, however, see in the
service to the community
>> their highest life achievement."
>>
>> Albert Einstein
>>
>> On Apr 21, 2009, at 12:14 PM, Christopher Green
wrote:
>>
>>
>>
>> "The binding clause says nothing whatsoever
about [the] meaning of the
>> constitution." I don't think that Article VI on
its own tells us the
>> nature of the Constitution, but it does give us
a phrase for what is
>> binding--"this Constitution"--and looking at
how that phrase is used
>> elsewhere can tell us what it means. There's a
lot of material to sift
>> through. See here
>>
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1227162>
at 37-55.
>>
>> As to the reductio-ad-anarchy, I would
distinguish between issues
>> about what is /interpretively binding/--i.e.,
what we are doing when
>> we interpret the Constitution, and what sort of
entity the
>> Constitution presents itself as--from issues
about the /occasions/ of
>> constitutional interpretation--at issue in
cases like _Marbury_,
>> executive-branch interpretation, precedent, and
so on. I'm talking
>> about what we should do once we decide that
we're in the
>> interpretation business, not the precise
contours of when we should be
>> in that business. See here
>>
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1227162>
at 10-11.
>>
>>
------------------------------------------------------------------------
>>
>> *From:* conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] *On
Behalf Of *Steven Jamar
>> *Sent:* Tuesday, April 21, 2009 10:49 AM
>> *To:* CONLAWPROFS professors
>> *Subject:* Fwd: Non-originalist opinions
>>
>> Of course we are bound to its meaning. But to
say we are bound to its
>> meaning again does not say anything at all
about how to determine that
>> meaning or what that meaning is. The binding
clause says nothing
>> whatsoever about meaning of the constitution.
>>
>> Under but the most modest extension of Prof.
Green's strained
>> interpretation, U.S. officials would be bound
to ignore precedent and
>> /Marbury/ and all else but their own
interpretation of the meaning
>> because all meaning comes from the binding
clause oath and nothing
>> else matters. There is nothing at all in the
constitution that says
>> anything about judicial supremacy and nothing
about being bound by
>> supreme court precedent and interpretation.
>>
>> That level of anarchy cannot be what the
founders intended, or said.
>> Binding or not.
>>
>> Steve
>>
>> On Apr 21, 2009, at 11:15 AM, Christopher Green
wrote:
>>
>>
>>
>> What does it mean to be bound by a
Constitution, if not to be bound by
>> its meaning? It doesn't mean to tie a copy of
the Constitution to
>> one's wrist. See here
>>
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1227162>
at 21-22.
>> Of course, we need to do more work to find out
what exactly "this
>> Constitution" refers to--i.e., what the
Constitution makes binding.
>> See the rest of the article for that.
>>
>>
------------------------------------------------------------------------
>>
>> *From:* conlawprof-bounces at lists.ucla.edu
>> <mailto:conlawprof-bounces at lists.ucla.edu>
>> [mailto:conlawprof-bounces at lists.ucla.edu] *On
Behalf Of *Steven Jamar
>> *Sent:* Tuesday, April 21, 2009 10:05 AM
>> *Cc:* conlawprof at lists.ucla.edu
<mailto:conlawprof at lists.ucla.edu>
>> *Subject:* Re: Non-originalist opinions
>>
>> Prof. Green makes my point more elegantly than
I could. Of course we
>> are bound by the Constitution. But to say that
is to say nothing at
>> all about the meaning of the constitution or
its interpretation.
>>
>> Steve
>>
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------------------------------------------------------------------------
>>
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