Originalist Ideology and the Rule of Law

This essay contends that one of the basic tenets of the New Originalism -- the so-called contribution thesis -- compromises our underlying commitment to the rule of law. By locating some binding substantive content of constitutional language in a historical record beyond the text itself, originalism undermines the fundamental concepts of formal legality and public accessibility. With these issues in mind, the essay concludes that originalism is not a philosophical account of how the Constitution has meaning in our legal system, but is instead a judicial ideology intended to promote the constitutional policy judgments of an earlier generation

Salazar v. Buono: Sacred Symbolism and the Secular State

This Colloquy piece comments on some doctrinal and theoretical implications of the Supreme Court\u27s recent decision in Salazar v. Buono

Wittgenstein\u27s Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia\u27s death has created. Public meaning originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these New Originalists have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested-that is, we often do not seek semantic or legal agreement-makes particular linguistic indeterminacies highly problematic for approaches grounded in historical public meaning. Here I highlight two underappreciated sources of such indeterminacy: intentional contemporary ambiguity and incidental evolutionary vagueness. Neither of these indeterminacies are susceptible to the New Originalist method, and, when added to the well-known problem of intentional vagueness, these issues leave public meaning originalism incapable of constraining judges in many of our most controversial cases

Justice as Fair Division

The current hyperpoliticization of the Court grows out of a feedback loop between politicized appointments and politicized decision-making. This Article suggests a change in the internal procedures by which the Court hears and decides particular cases. A three-Justice panel hears and decides each case. Appeal to an en banc sitting of the entire Court would require a unanimous vote of all non-recused Justices. This Article explores several possible approaches in selecting the three-Justice panel. This Article proposes that applying a fair division scheme to the Court\u27s decision-making process might act to reverse this loop and work to depoliticize the Court over time

Wittgenstein’s Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia’s death has created. “Public meaning” originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these “New Originalists” have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested—that is, we often do not seek semantic or legal agreement—makes particular linguistic indeterminacies highly problematic for approaches grounded in historical public meaning. Here I highlight two underappreciated sources of such indeterminacy: intentional contemporary ambiguity and incidental evolutionary vagueness. Neither of these indeterminacies are susceptible to the New Originalist method, and, when added to the well-known problem of intentional vagueness, these issues leave public meaning originalism incapable of constraining judges in many of our most controversial cases

Religion and the Restatements

This essay is a contribution to the symposium entitled Restatement of ... held at Brooklyn Law School in January of 2013. It examines the role that conceptions of religious liberty play in the various Restatements, and suggests a few places where the ALI might consider expanding its discussion of these principles

Two Dogmas of Originalism

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at a particular historical moment, does not accurately describe the bulk of our current judicial practice. And, because semantic meaning arises predominantly from practice, the text’s semantic meaning does not depend upon an interpretive act of historical fixation. I also challenge the so-called “constraint principle,” which asserts that the text’s fixed semantic meaning should constrain judicial efforts to construct legal rules. I suggest that we should think of this principle as embodying a particular normative theory of adjudication—one that would radically reduce both the number and kind of interpretive tools we have developed through centuries of practical experience. Thus, in the end I side with Edmund Burke and the English conservatives, who caution against replacing the collected wisdom of lived experience with the supposed certainties of abstract theory

The People\u27s Court: On the Intellectual Origins of American Judicial Power

This article enters into the modern debate between constitutional departmentalists -who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called judicial supremacists. After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp. This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we must expand the traditional conception of the separation of powers to include not just distinct institutional functions, but also the structured division of the sovereign prerogative itself, both within and without the institutions of government. It then becomes possible to read Article III as part of a larger effort to unbundle the metaphorical sticks of traditional sovereign power, and to vest what I call the revolutionary prerogative in an independent judicial branch. This prerogative establishes an institutional form through which the Court might invoke John Locke\u27s famous revolution principle on behalf of the sovereign People. It thus allows for what James Wilson celebrated-and what Sir William Blackstone could not conceive-the possibility of legalized revolution. In other words, the revolutionary prerogative allows for formal, independent appeal of the terms of the constitutional contract, by which the People delegated limited and contingent authority to their legislative and executive agents. Indeed, it is the final legal step before constitutional amendment or dissolution. Of course, the People retain the ultimate sovereign prerogative to declare the state of exception, but once constituted, the meaning of our fundamental law remains firmly, and solely, a matter of judicial discretion