Living Originalism

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the writtenness of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists-the framers of originalism, if you will-as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated-and continue to articulate-a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation. Our account of originalism\u27s evolution-and of the extensive disagreement among originalists today-undermines originalists\u27 normative claims about the superiority of their approach. Originalists\u27 claims about the unique and exclusive legitimacy of their theory-that originalism self-evidently represents the correct method of constitutional interpretation-founder when one considers that originalists themselves cannot even begin to agree on what their correct approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and thus that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism; because each version has the potential to produce a different constitutional meaning, the constitutional meaning that a committed originalist judge would find turns out to be anything but fixed. As originalism evolves, the constitutional meanings that it produces evolve along with it. Today\u27s originalists not only reach results markedly different from those originalists reached thirty years ago, but also produce widely divergent results amongst themselves. Judges committed to the originalist enterprise thus have significant discretion to choose (consciously or subconsciously) the version of originalism that is most likely to dictate results consistent with their own preferences. As such, originalism suffers from the very flaws that its proponents have identified in its alternatives

School Vouchers: Settled Questions, Continuing Disputes

Provides an assessment of the constitutional principles announced by the Court, following the June 2002 decision in the Cleveland school voucher case. Presents contrasting arguments on educational policy that address key issues about the decision

Integrity and Universality: A Comment on Dworkin\u27s \u3ci\u3eFreedom\u27s Law\u3c/i\u3e

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or her interests is entitled -- morally and legally -- to a reasoned decision illustrating why moral principles held constitutionally dispositive in earlier cases regarding similarly situated groups should not be equally dispositive for him or her. When done well, the result of this method is what Dworkin has called an integrity of principle, which, in turn, is a necessary, albeit not sufficient, condition for the moral justification of the constraints of constitutional law in a democratic state. Stated differently, if constitutional law is to be a part of a morally justified form of democratic self-governance, then the moral principles at its core must be applied even-handedly, and they must be applied even-handedly no matter how difficult, inexpedient, inefficient, or simply politically unpopular it may be, from time to time, to do so. Finally, commitment to such a view defines membership in the party of principle, intended as a contrast to the membership of the party of history, who defends and locates rights not by reference to general principles even-handedly applied, but rather, by reference to whether the argued right respects distinctions honed and honored by tradition. In these comments, I want first to suggest a non-relativist argument for the necessity of integrity to constitutionalism, intended, frankly, to resolve the above noted tension, and to do so by identifying the grounds for integrity and principle in neither the interpreted constitution nor in liberalism, but in a substantive value that is deeper and broader than both, and hence both informs and constrains both. The constraint of integrity, I will argue, arises not from the sail of constitutional precedent itself, which goes wherever the wind blows it, nor from liberalism per se, but from a source external to both, which accordingly constrains the direction which constitutional authority might take. The argument that I will suggest is by no means inconsistent with Dworkin\u27s arguments and indeed is strongly suggested in much of his earlier writing, particularly Law\u27s Empire. In the second part of my comments, I will suggest some limitations on this conception of integrity. Finally, I will offer a friendly amendment to Dworkin\u27s account of integrity

McKithen v. Brown: Due Process and Post-Conviction DNA Testing

When the Second Circuit decided McKithen v. Brown, it joined an ever-growing list of courts faced with a difficult and pressing issue of both constitutional and criminal law: is there a federal constitutional right of post-conviction access to evidence for DNA testing? This issue, which sits at the intersection of new forensic technologies and fundamental principles of constitutional due process, has divided the courts. The Second Circuit, wary of reaching a hasty conclusion, remanded McKithen’s case to the district court for consideration. The district court for the Eastern District of New York was asked to decide whether a constitutional right of access to evidence for DNA testing exists both broadly as well as under the defendant’s circumstances. This iBrief concludes that although a due process post-conviction right of access to evidence for DNA testing may exist under some circumstances, it does not exist under current constitutional jurisprudence in McKithen’s case

The Authoritarian Impulse in Constitutional Law

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the principle of judicial exclusivity in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we should all engage in constitutional debate. We should stop relying on the courts to shoulder the burden of resolving the constitutional consequences of our political decisions. According to this argument, our methods of resolving moral issues in this country are deeply flawed. The flaw is that we have delegated to the courts, rather than kept for ourselves, the moral responsibility for our decisions. By protecting, cherishing, and relying upon judicial review, we have essentially alienated our moral public lives to the courts. I agree with Brest that our methods of resolving issues of public morality in this culture are deeply flawed, but I view with skepticism both the diagnosis--insufficient community participation in constitutional processes--and the cure--increased community participation in constitutional processes--suggested by the participation theorists. The call for increased participation in constitutional thought rests on the assumptions that constitutional questions are moral questions, and that constitutional debate is the forum in which we engage in moral decision-making. From these assumptions it follows that all citizens, not just courts, should take up issues of constitutionalism. If we take very seriously the text of the opinions in a significant number of recent constitutional cases, however, it is clear that as a descriptive matter, the assumption that constitutional questions are moral questions is flatly false. According to the Justices themselves, constitutional issues are by definition legal issues, as opposed to moral issues. Countless neutral principles constitutional theorists as well insist upon making a distinction between constitutional issues and moral issues. Thus, according to a well-respected strand of constitutional theory, as well as an increasing number of recent cases, constitutional questions are definitionally amoral, as are the answers they propose

Constitutional Pluralism and Democratic Politics: Reflections on the Interpretive Approach of Baker v. Carr

Baker v. Carr is one of the Supreme Court\u27s most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court\u27s numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court\u27s decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as constitutional pluralism, for thinking about Baker and other cases involving judicial supervision of democratic politics. Using constitutional pluralism as an interpretive tool, he argues that the aim of judicial involvement in democratic politics ought to be to vindicate specific democratic principles. To the extent that a challenged democratic practice serves multiple and legitimate democratic ends, the federal courts should respect the judgment of democratic actors

The Canon(s) of Constitutional Law: An Introduction

Any discipline has a canon, a set of themes that organize the way in which people think about the discipline. Or, perhaps, any discipline has a number of competing canons. Is there a canon of constitutional law? A group of casebook authors met in December 1999 to discuss the choices they had made - what they had decided to include, what to exclude, what they regretted excluding (or including), what principles they used in developing their casebooks. Most of the authors were affiliated with law schools, but some had developed coursebooks for use in undergraduate political science and constitutional history courses. Each participant was asked to write a short paper describing the canon of constitutional law, either as reflected in his or her choices, or in the range of materials available in the field. What do coursebook authors\u27 reflections on their choices show about the canon(s) of constitutional law? In my view, three themes pervaded our discussions, and many of the papers that follow. A crude classification is that one theme involves the focus of the constitutional law canon, another involves the canon\u27s substance, and the third involves the audience for constitutional law studies

Mencermati Ratio Decidendi Mk Dalam Putusan Nomor 122/Puu-Vii/2009 Tentang Penderogasian Norma Hukum Dan Sifat Putusan PTUN

Ratio decidendi of the Constitutional Court that said he was not an organ that has an authority to review constitutional rights loss of applicant, beside contrary to constitutional protection principles, also contrary to functions of the Constitutional Court as the guardian of the constitution, the protector of citizen\u27s constitutional rights dan the protector of human rights. The Constitutional Court should avoid to put his legal reasoning (in his ratio decidendi) that verdict of administrative court has not a legal nature – erga omnes. He should become aware that an administrative dispute is a public dispute bound under public law principles

The Normality of Constitutional Politics: an Analysis of the Drafting of the EU Charta of Fundamental Rights

Constitutional politics is often contrasted with normal politics as being more deliberative and so able to produce a principled consensus rather than a compromise. This article qualifies this view. The authors argue that the potential exists for reasonable disagreement even over such basic constitutional principles as rights. As a result, a constitution can only be agreed by employing the art of compromise typical of normal politics. Indeed, a prime role of constitutional politics lies in showing how conflicts can be normalised. The authors illustrate their argument via a detailed analysis of the various political compromises employed by the convention to draft the EU Charter of Fundamental Rights.constitution building; EU Charter of Fundamental Rights; fundamental/human rights