What originalists supposedly look to

[Scarberry, Mark]

I consider myself to be mostly a textualist/originalist, and I spill a lot of ink on the history of the 14th amendment in my Alabama L Rev article on the DC House Voting Rights Bill. It seems that proponents of trying to grant DC a voting member in the House by a simple statute have now given in to inclusion in the bill of a repeal of the strict DC gun control laws, which may allow the bill to pass (and President Obama was a supporter while in the Senate and thus is likely to sign it). See http://www.nytimes.com/2010/04/16/opinion/16fri4.html.
 
But the text and history of section 2 of the 14th Amendment make it impossible, in my view, to take seriously the only otherwise somewhat plausible argument for constitutionality of the bill (the argument that the failure to provide representation for the District was an oversight by the original Founders). See Mark S. Scarberry, Historical Considerations and Congressional Representation for the District of Columbia: Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the Fourteenth Amendment and the History of the Creation of the District, 60 Ala. L. Rev. 783 (2009), available at http://ssrn.com/abstract=1345744.
 
The article notes two other ways to give DC the House representation that it ought to have: a simple constitutional amendment to give DC a voting member in the House (which I think is quite politically feasible), and a likely constitutional renegotiation by the US and Maryland of the cession of the current District (all of which was ceded by Maryland), under which DC residents would have the right to vote in Maryland house elections as if they were still Maryland citizens. (Of course retrocession of the District to Maryland is another possibility, but it is probably a political nonstarter.) 
 
Mark Scarberry
Pepperdine

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From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Fri 4/16/2010 9:11 AM
To: 'CONLAWPROFS professors'
Subject: What originalists supposedly look to



               Before we make generalizations about what originalists supposedly look to, and whether they ignore the Civil War Amendments, we might want to look closely at what actual originalists do.  For instance, many originalists - both scholars and some activists - have been looking very closely at the Fourteenth Amendment as to the most recent Fourteenth Amendment controversy, which is whether the right to keep and bear arms should be incorporated against the states.  Likewise, many originalist scholars (including conservative ones) have spilled much ink over the Fourteenth Amendment.  

 

I'm sure there are plenty of originalist scholars who focus on the Framing era because that's what they find especially interesting.  Likewise, I'm sure that some people reasonably think that as to particular issues, the 1787-1791 original meaning is more relevant than the 1866-1870 original meaning, since those issues strike them as outside the scope of the Civil War Amendments.  (I take it that much of the arguments that people in the Tea Party movement are making fall into that category.)

 

Likewise, plenty of laypeople who vaguely sympathize with originalism but just don't know any better - much as, for instance, there are plenty of laypeople who vaguely sympathize with the "living Constitution" model but just haven't thought carefully about what it means in various areas, such as the right to keep and bear arms.  But none of this tells us about what "Originalists" generally do or think.

 

Eugene

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