Is Stare Decisis Inconsistent with the Original Meaning of the Constitution?: Exploring the Theoretical and Empirical Possibilities

For some time, a scholarly debate has raged over whether a commitment to the original meaning of the Constitution allows for the doctrine of stare decisis, whereby courts defer to precedent simply because it is precedent. This Essay explains the range of theoretical possibilities for this seemingly incompatible duo, as put forth by originalism’s leading scholars, and situates these various theories on a continuum. The Essay ends with a preview of the difficulties and possibilities that follow from the various empirical answers regarding the relationship between stare decisis and the Constitution at the Founding

Legal Quanta: A Mathematical Romance of Many Dimensions

Article published in the Michigan State Law Review

Three Modalities of (Originalist) Fiduciary Constitutionalism

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike

Using Empirical Data to Investigate the Original Meaning of Emolument in the Constitution

The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress. In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ However, in trying to determine the “normal” meaning of “emolument” in the Founding Era we are confronted with a term that might as well be a foreign word from an unknown language. The word emolument has virtually vanished from contemporary American English. A search for either “emolument” or “emoluments” in the Corpus of Historical American English (COHA), a digital database containing more than 400 million words of text from the 1810s–2000s, produced only four occurrences since 1990. In this article, we investigate the mysterious meaning of emolument by using computer-assisted search and analysis of a massive database of texts from the time of the Constitution and find strong patterns of usage that reveal how the word was used at the time the Constitution was drafted and ratified