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Constitution

Deciding Unclear Originalist Cases: Towards Good-Faith Constitutional Construction

Evan Bernick December 19, 2016
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Interpreting a centuries-old document and applying it to factual circumstances unknown and perhaps inconceivable to those who ratified it into law is not an easy task. As Professor Mike Rappaport recently observed, many of the provisions of our Constitution “are simply not clear, unless one has done . . . extensive historical research.” Further, even those who maintain—as originalists do—that (1) the meaning of the Constitution’s text was fixed when each provision was framed and ratified; and (2) judges must decide cases in accordance with that fixed meaning, must acknowledge that fallible, busy judges may be unable to arrive at a single determinate answer concerning the meaning of a particular clause or how that clause applies to a particular set of facts. What are judges to do in such cases? [Read More]

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Supreme Court Justice Antonin Scalia

Justice Scalia's Influence On Display in Apple v. Samsung decision

Joshua Wolson December 07, 2016
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Most discussions about the Supreme Court’s 8-0 decision in Samsung Electronics, Ltd. v. Apple Inc. have focused and will continue to focus on the decision’s implications for patent law and innovation. The decision also highlights the impact that Justice Scalia has had on the Supreme Court specifically and on legal thinking more generally. Indeed, although the decision in the case does not mention Justice Scalia, its analysis is, in many ways, a tribute to him.  [Read More]

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Constitution

The Libertarian Case for Originalism

Evan Bernick August 10, 2016
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Amongst proponents of limited government—be they conservatives or libertarians—originalism is the theory of constitutional interpretation to beat. Thus, when Libertarian Presidential candidate Gary Johnson recently declared that he would want to appoint Supreme Court Justices “that look at the Constitution of original intent,” he surprised no one. (With the exception of those sufficiently familiar with originalist literature to recognize that “original intent” is no longer the preferred nomenclature—“original public meaning” is, although several distinguished originalist scholars identify as intentionalists.)

Over at Balkinization, Professor Richard Primus argues that libertarians should resist the gravitational force of originalism. Primus’s primary contention is that the Constitution is not “distinctly libertarian” and that the good-faith practice of originalism will thus disappoint libertarians. Primus also argues that “originalism in practice delivers enormous indeterminacy” and that progressive originalists can be counted upon to “imagine the Founders in the light of their own political values.” Thus, he claims that promoting originalism will enable progressives to marshal “some of the most potent rhetoric in constitutional law, namely the claim that their values are the values of the Founders rather than just their own.” [Read More]

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Justice Ginsburg Goes Originalist

Timothy Courtney April 06, 2016
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The Wall Street Journal reports:

The Supreme Court took the safe route Monday in declining to revisit its one-person, one-vote precedents. But in the silver-lining department, Justice Ruth Bader Ginsburg quoted Alexander Hamilton, and Justice Clarence Thomas exposed the hash that is the Court’s jurisprudence on the subject...

...[b]ut Justice Ginsburg wrote for an 8-0 Court that the Texas state Senate map “complies with the requirements of the one-person, one-vote principle” (Evenwel v. Abbott). Justice Ginsburg is a liberal who often writes what she wants into the Constitution, so it was some consolation to see her cite the Founders to make her case. Maybe she saw “Hamilton” on Broadway, and Antonin Scalia must be smiling upstairs.

Read the full article, and then check out the practice groups podcast of Monday's Teleforum Conference Call, in which our expert, Andrew Grossman, makes a similar observation, as well as more insightful commentary.