Originalism
Scarberry, Mark
Mark.Scarberry at pepperdine.edu
Thu Feb 11 12:34:03 PST 2010
Most of us, and many office-holders, have taken oaths as lawyers (not
required by the Const.) which are not time limited.
Mark S. Scarberry
Pepperdine University School of Law
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, February 11, 2010 12:00 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: Originalism
I assume that oath is just for sitting government officials,
though, right? Or is the theory that once an official takes an oath, he
may not for the rest of his life endorse (for instance) a new
extra-article-V constitutional convention, a la Philadelphia 1787, that
is not consistent with the current Constitution?
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Christopher Green
> Sent: Thursday, February 11, 2010 8:47 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Originalism
>
> We've probably had this conversation before, but of course the
> Founders can bind us, if they can convince us to take an oath to be
> "bound" by "this Constitution," per Article VI. See
> http://ssrn.com/abstract=1227162. If my op-ed today were somehow able
> to command the oaths of the denizens of 2240, that'd do the trick, I
think.
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
> Sent: Thursday, February 11, 2010 9:54 AM
> To: Eric Segall; conlawprof at lists.ucla.edu
> Subject: Originalism
>
> I dont think Founders can bind us. They were trying to solve the
> critical problems of summer of 1787, which they knew well, but they
> did not even know January 1788 because it had not happened yet. They
> appealed eternal verities all the stime: the blessings of heaven on
> slavery, the wisdom mercantalist economc restrtictions on imports, the
> necessirty that women were like children within the household, and the
> truth that if you allowed people without property to vote, they would
> sell their vote to foreign pwoer at too low a price because they had
> no stake. None of these eternal verities have much appeal.
> Anything they cared about was dead by the time of the 11th
> Amendment when they decided that not all the debts of the
> Revolutionary War had to be paid, and honest suppliers including the
> Angel of Savannah could be stiffed (Chisholm), and by the Jay Treaty
> which we could not regulate commerce with the British, although that
the concrete program underneath the
> commerce clasue. Once Hamilton and Madison broke their alliance,
there was
> no Constitutional Movement.
> Try your hand. Write on op-ed page on the most critical issues of
today.
> Appeal to tradition, eternal verities, econonomics or whatever. Now
while
> you are at it, settle the problems of 2240, whatever they are. Hard
> isnt it?
> The Court is doing a lot of Barbie Dolls in the archeological
dig:
> putting their values into the history and then pretending the Barbie
Doll is
> binding on u. The Constitution overall for instance is a visciously
> anti-state document, so taht if you are doing deductions from teh
> original design or between the lines, the decision should go against
> the state. The states rights are the right to veto border changes and
> the 2d Amendmetn and this court hypocritically seems to be set to undo
the second one.
>
> ________________________________________
> From: Eric Segall [esegall at gsu.edu]
> Sent: Thursday, February 11, 2010 8:30 AM
> To: Calvin Johnson; CONLAWPROF at lists.ucla.edu;
> Mark.Scarberry at pepperdine.edu
> Subject: RE: McDonald v. Chicago
>
> You said, "But I thought this was not an evolutionary court but rather
> an originalist one." I assume you were being sarcastic because of
> course the Court has never been an originalist one and this last one
> or two is no exception. Five Justices joined Kennedy's "living
> Constitution" passage at the end of Lawrence, prohibitions on
> affirmative action are anti-originalist, and the idea that
> corporations have the same first amendment rights as citizens . . .
> well . . . you know. There are of course numerous other examples from
> this and every other Supreme Court since at least Reconstruction and
probably before.
>
> This is not meant as a criticism of your post but maybe someday the
> Academy will never have to use the word originalism again as a
> descriptor of a decision generating device (and that goes for all
> those on the left who all of a sudden feel they must or can justify
> Roe, etc., on originalist grounds).
>
> Sorry for the Rant,
>
> Eric
>
>
> >>> Calvin Johnson <CJohnson at law.utexas.edu> 02/10/10 7:53 PM >>>
> I suppose we could say the same thing about search and seizure.
> States had a right to prosecute criminals with ill gotten evidence
before Map v. Ohio.
> It does better to call it an mmunity to allow prosecution, because it
> is not that we allowing the states to do it with pride as a RIGHT but
rather that
> we tolerated under preMap 4th A. The Fourth Amendment was not
written
> to allow the states to prosecute with ill gotten evidence.
> So on establishment, the A is written to prevent the Federal
> Governmetn from paying for Episcopalian ministers, even though it
> tolerated Establishment in the States.
>
> The preservation of state militias, which is what Madison
is
> responding to in the 2d is a state right. To impose the 2d against
the
> state is to rip open the 1787-89 purpose of it. Now if this court is
> willing to let the Constitution evolve away from the sacred moment,
> then I can think of many rights that they need to be protected by
> evolution. But I thought this was not an evolutionary court but
rather an originalist one.
>
> Calvin H. Johnson
> Andrews & Kurth Centennial Professor of Law The University of Texas
> School of Law
> 727 E. Dean Keeton (26th) St.
> Austin, TX 78705
> (512) 232-1306 (voice)
> FAX: (512) 232-2399
> Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
> For reviews, chapters, discounts and news on Johnson, Righteous Anger
> at the Wicked States: The Meaning of the Founders Constitution
> (Cambridge University Press 2005) see
> http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
> From: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu]
> Sent: Wednesday, February 10, 2010 12:03 PM
> To: Calvin Johnson; CONLAWPROF at lists.ucla.edu
> Subject: RE: McDonald v. Chicago
>
> In response to Professor Johnson:
>
> The Establishment Clause (pre-incorporation) did not just prohibit a
> federal establishment of religion; it prohibited Congress from
> legislating with respect to ("respecting") an establishment of
> religion. That protected the states from congressional interference
> with whatever they might choose to do with regard to establishment or
> nonestablishment of religion. That seems to me to be rather clearly a
> matter of preserving the right of the states to do as they might
> choose. Of course you can argue that such a right should be
> categorized as an "immunity," but if we are going to start
> distinguishing Hohfeldian "immunities" from Hohfeldian "claim rights,"
> we'll be doing an awful lot of analysis. In any event, a provision
> that provides an immunity to a state or person who is seeking the
immunity could properly be said to have been "written for" that state or
person.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
>
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
> Sent: Wednesday, February 10, 2010 9:04 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: FW: McDonald v. Chicago
>
> To: William Funk
> Subject: RE: McDonald v. Chicago
>
> The Establishment clause certainly had an immunity for states, but it
> was not written for states. Cant think of any way in which the
> prohiition on establishment was a state's right. By sharp contrast,
preservation of the
> state militia is a state's right. Quite odd to interpret the 2d
amendment
> against its primary intended beneficiaries.
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu
> [conlawprof-bounces at lists.ucla.edu]
> On Behalf Of William Funk [funk at lclark.edu]
> Sent: Tuesday, February 09, 2010 7:54 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: McDonald v. Chicago
> That the 2d Amendment originally was at least in part, if not totally,
> to protect state interests, rather than individual interests is not
> likely to stop its incorporation. After all the Establishment Clause
> was originally to protect state interests, assuring that the three
> states with established churches would not have them disestablished by
> the federal government as well as assuring the remaining states that
> the federal government would not establish a church. But this didn't
> stop the Establishment Clause from being incorporated.
> Bill Funk
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