Justice Kennedy’s Use of Sources of the Original Meaning of the Constitution

The essay concerns one aspect of Justice Kennedy’s jurisprudence, namely, his use of some of the principal sources of the original meaning of the Constitution in his written opinions. By the term “sources of the original meaning of the Constitution,” I refer to the records from the Federal Constitutional Convention of 1787, the records of the state ratifying conventions, the Federalist Papers, dictionaries showing usage of language during the Founding period, and the acts of the First Congress. The goals of this essay are first to identify, quote, and describe passages in which Justice Kennedy has cited these sources, and second to draw conclusions about what these passages show. Although I clerked for Justice Kennedy in the October 1989 term, and have spoken with him regularly since then, he and I have not discussed this particular subject. My assessment is based solely on his written opinions. My observations lead me to three conclusions: First, Justice Kennedy believes that sources of the original meaning of the Constitution are important, but he does not rely on them frequently. I found only 22 opinions written by Justice Kennedy that cite the Federalist Papers, the records of the Constitutional Convention, the records of the state ratifying conventions, or the Acts of the First Congress. Second, when Justice Kennedy cites sources of the original meaning of the Constitution, he usually uses the sources to confirm background principles rather than to resolve the specific issues before the Court. Third, Justice Kennedy is not opposed to using sources of the original meaning of the Constitution to resolve specific issues, but he has done it in very few cases

Justice Kennedy’s Use of Sources of the Original Meaning of the Constitution

The essay concerns one aspect of Justice Kennedy’s jurisprudence, namely, his use of some of the principal sources of the original meaning of the Constitution in his written opinions. By the term “sources of the original meaning of the Constitution,” I refer to the records from the Federal Constitutional Convention of 1787, the records of the state ratifying conventions, the Federalist Papers, dictionaries showing usage of language during the Founding period, and the acts of the First Congress. The goals of this essay are first to identify, quote, and describe passages in which Justice Kennedy has cited these sources, and second to draw conclusions about what these passages show. Although I clerked for Justice Kennedy in the October 1989 term, and have spoken with him regularly since then, he and I have not discussed this particular subject. My assessment is based solely on his written opinions. My observations lead me to three conclusions: First, Justice Kennedy believes that sources of the original meaning of the Constitution are important, but he does not rely on them frequently. I found only 22 opinions written by Justice Kennedy that cite the Federalist Papers, the records of the Constitutional Convention, the records of the state ratifying conventions, or the Acts of the First Congress. Second, when Justice Kennedy cites sources of the original meaning of the Constitution, he usually uses the sources to confirm background principles rather than to resolve the specific issues before the Court. Third, Justice Kennedy is not opposed to using sources of the original meaning of the Constitution to resolve specific issues, but he has done it in very few cases

A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution

This article was published by the University of Illinois Law Review in 2009. The citation is: Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457. Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates and discussions about the proposed Constitution. Accordingly, writers often cite these records as evidence of the original meaning of the Constitution. Thousands of articles and hundreds of cases have cited the records of the state ratifying conventions to support claims about the original meaning of the Constitution. This Article offers a concise guide to these records, providing the basic information that lawyers, judges, law clerks, and legal scholars ought to have before advancing, contesting, or evaluating claims about the original meaning of the Constitution based on the records of the state ratifying conventions. It explains theories of how the records might help to prove the original intent of the Framers, the original understanding of the ratifiers, and the original objective meaning of the Constitution\u27s text. The Article also considers eight possible grounds for impeaching assertions made about the original meaning, recommending that anyone making or evaluating a claim about the original meaning take these eight arguments into account and that anyone using these arguments to impeach claims about the original meaning consider the possible counterarguments. This article is one of a series of articles on sources of the original meaning of the Constitution. See also Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution, 81 Geo. Wash. L. Rev. (forthcoming 2012); and Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007)

A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution

This article was published by the University of Illinois Law Review in 2009. The citation is: Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457. Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates and discussions about the proposed Constitution. Accordingly, writers often cite these records as evidence of the original meaning of the Constitution. Thousands of articles and hundreds of cases have cited the records of the state ratifying conventions to support claims about the original meaning of the Constitution. This Article offers a concise guide to these records, providing the basic information that lawyers, judges, law clerks, and legal scholars ought to have before advancing, contesting, or evaluating claims about the original meaning of the Constitution based on the records of the state ratifying conventions. It explains theories of how the records might help to prove the original intent of the Framers, the original understanding of the ratifiers, and the original objective meaning of the Constitution\u27s text. The Article also considers eight possible grounds for impeaching assertions made about the original meaning, recommending that anyone making or evaluating a claim about the original meaning take these eight arguments into account and that anyone using these arguments to impeach claims about the original meaning consider the possible counterarguments. This article is one of a series of articles on sources of the original meaning of the Constitution. See also Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution, 81 Geo. Wash. L. Rev. (forthcoming 2012); and Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007)

Finding the Original Meaning of American Criminal Procedure Rights: Lessons from Reasonable Doubt’s Development

[Excerpt] “The prosecution must prove every element of the crime beyond a reasonable doubt for a valid conviction. The Constitution nowhere explicitly contains this requirement, but the Supreme Court in In re Winship1 stated that due process commands it. Justice Brennan, writing for the Court, noted that the Court had often assumed that the standard existed, that it played a central role in American criminal justice by lessening the chances of mistaken convictions, and that it was essential for instilling community respect in criminal enforcement. The reasonable doubt standard is fundamental because it makes guilty verdicts more difficult. As Winship said, the requirement “protects the accused against conviction . . . .” Justice Harlan’s eloquent concurring opinion in Winship elaborated by noting that “a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Incorrect factual conclusions can lead either to the acquittal of a guilty person or the conviction of an innocent one. “Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.” Society views the harm of convicting the innocent as much greater than that of acquitting the guilty. Thus, Harlan concluded, “I view the requirement of proof beyond a reasonable doubt in a criminal cased as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” The reasonable doubt standard was constitutionalized because of the societal function it now serves. Winship did not find it constitutionally required because the original meaning of a constitutional provision required it. Indeed, the Court indicated that the standard had not fully crystalized until after the Constitution was adopted. Even so, the reasonable doubt standard provides a fertile field for examining the methodology of finding the original meaning of constitutional criminal procedure rights. First, its status seems secure No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. Its original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee. Furthermore, serious scholars have studied the reasonable doubt standard’s early development and its original meaning, purposes, and intent. An examination of those scholarly sources, methods, and conclusions provides a number of valuable insights that should affect the search for finding the original meaning of other American criminal procedure guarantees. These are first that the seeker of original meaning of evolved criminal procedure rights has to go beyond traditional legal sources and explore the broader epistemological developments in religion, philosophy, and science that affected the development of the right. Second, conclusions about original meaning drawn primarily from English and other European sources can be misleading without a consideration of American developments. What might seem like a sound conclusion when English sources are examined may look suspect when viewed in the light of American developments. Finally, the reasonable doubt scholarship reveals that definitive conclusions about the original meaning of American constitutional rights will often be impossible to find both because the necessary American record is absent and because evolved rights never really had a definitive original meaning. The starting point here is with the scholars who have concluded that the original purpose of the reasonable doubt standard was not, as the Court now has it, to protect the accused, but instead emerged to make convictions easier.

A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution

The article describes the Constitutional Convention and the various kinds of records that were kept of its proceedings. The essay then explains, with examples, how judicial opinions and academic works draw upon the records for evidence of the Constitution’s original meaning, including both the meaning that the Framers may have subjectively intended the document to have and also other possible meanings. The essay next identifies and assesses seven important potential grounds for impeaching assertions about what the records show. Each of these potential grounds has merit in some contexts, but all of them are also subject to significant limitations or counter arguments. The essay, accordingly, recommends that anyone making or evaluating claims about the original meaning of the Constitution should proceed with caution, carefully taking into account both the possible grounds for impeaching claims and the arguments against these grounds. Appendices to this essay include an annotated bibliography and a table of the deputies who participated at the Constitutional Convention.This article is one of a series of articles on sources of the original meaning of the Constitution. See also Gregory E. Maggs, A Concise Guide to The Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457; and Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007)

How Justice Thomas Determines the Original Meaning of Article Ii of the Constitution

This paper was presented at a panel on Justice Thomas and Article II at the Yale Federalist Society’s conference, Celebrating Justice Thomas: 25 Years on the Supreme Court. It addresses the question: How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution? In answering this question, I make three observations based on opinions authored or joined by Justice Thomas. First, Justice Thomas seems much more inclined to theorize about executive power than other aspects of constitutional law. Second, Justice Thomas routinely cites seven key sources of original meaning in his decisions on executive power. Third, in deciding questions under Article II, Justice Thomas adheres to his general approach of seeking the original objective meaning of the Constitution, rather than some other form of original meaning. The practical conclusions from my observations are twofold. First, a litigator who hopes to persuade Justice Thomas in an Article II case should attempt to find support in a variety of historical sources. Second, the same litigator also should consider making arguments based on theories of executive power--such as those concerning the competence and authority of the President compared to Congress and the Courts--even though Justice Thomas generally decides other kinds of constitutional questions with a focus more on the text of the Constitution than on abstract principles

Commerce in the Commerce Clause: A Response to Jack Balkin

The Constitution\u27s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island\u27s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin\u27s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution\u27s Commerce Clause a scope that virtually no one in the Founding Era believed it had