Originalism on the Blogs

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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13 Responses

  1. Shag from Brookline says:

    Gerard, it seems yet another post on originalism popped up at Balkinization late last night after your post here. Query whether originalism can be compared to the Big Bang Theory as the “universe” of originalism continues to expand? Are we dealing in particle constitutionalism?: I am well aware that the Big Bang took place – if the theory is correct – a tad more distant in time than our Constitution’s adoption. Of course the Big Bang Theory has been tested by the scientific method for quite some time, whereas originalism was “discovered” in the 1980s by Ed Meese, with his “original intent” version quickly derided by Paul Brest. What we need is a futurist constitutional scholar to tell us what originalism may look like as we get closer to the 22nd century. This should keep particle constitutionalists busy.

  2. Brett Bellmore says:

    In regards to that post, it seems to me rather absurd to attack “Goldilocks” originalism, when living constitutionalism is nothing BUT “Goldilocks”. Shouldn’t a theory be attacked on some basis where it’s actually worse, not better, than the alternative?

  3. Joe says:

    Evidence suggests that #2 is wrong & there is more to LC than that, though both terms covers so many shades of interpretatin (especially if “LC” is merely “non-originalism”), that it can just be that it amounts to an easy label to self-righteously denounce the other side.

  4. Brett Bellmore says:

    There’s more to living constitutionalism than Goldilocks, in the sense that LC has some choice among different basis for deciding which bowl of soup is too hot, and which is just right. But it’s still a way of deciding whether you like the soup’s temperature, not a thermometer. The essential gulf between living constitutionalism and originalism is, IMO, this:

    Originalism is trying to answer the question, “What does this mean?”

    Living constitutionalism is trying to answer the question, “What should this mean?”

    If you don’t look closely, they seem to be the same question, because they share a constitution as (part of) the input, and meaning as output. But they are, in fact, radically different questions, driven by radically different conceptions of what the role of the judiciary is.

  5. Gerard Magliocca says:

    Brett,

    I think part of the problem is that originalism now often asks what should this mean. Brown must be correct, so it’s originalist. Gender discrimination is wrong, so the opposite must be originalist. And so on.

  6. Joe says:

    The premise in #4 is not shown. I continue to find “LCs” a too open-ended label, but either way, having read the arguments of the so-labeled, I don’t think that’s right.

    The LCs set forth what they think the Constitution means. The complaint is that the document that results is too loose and open-ended. But, if the LCs are correct, this is just the nature of the beast. The fact originalists don’t like the fact, including the discretion it gives to the courts and government as a whole, doesn’t matter.

    The LCs aren’t saying, e.g., the Equal Protection Clause “should” protect interracial marriage and homosexuals. They are saying the basic principles behind the EPC DO protect these people.

    Disagreement on the merits repeatedly leads people to think the problem is that one or the other side is just making stuff up for personal or partisan reasons. After all, “my” side is clearly right, so the other side must just not be playing fair. It’s hard enough discussing things when people are on different wavelengths.

    When it’s assumed one or the other side isn’t even trying, well, that’s even harder.

  7. Shag from Brookline says:

    Brett’s:

    “Originalism is trying to answer the question, ‘What does this mean?’”

    fails to identify the version of originalism he relies upon. (I am trying hard to avoid picturing Brett with “Goldilocks.”) The foundation for originalism is quite recent, having been poured (politically) by Ed Meese in the 1980s based upon “original intent.” That foundation quickly crumbled with the jackhammer of Paul Brest. Efforts to build on that foundation have resulted in quite varied architectures of originalism, most recently with Jack Balkin’s “Living Originalism,” which Brett refuses to accept as a valid form of originalism. Gerard makes valid points with references to Brown. Does Brett accept Brown in conformity with originalism? Also, does Brett accept Marbury v. Madison (1803) in conformity with originalism? As the late Kurt Vonnegut said, “And so it goes.”

  8. Brett Bellmore says:

    I believe Brown to have been a reasonable response to the empirical demonstration that separate was never, in practice, going to be equal, because the people insisting on separate didn’t WANT equal. From this perspective, the rejection of separate but equal does not require attributing a new meaning to the 14th amendment, but only applying it to the facts on the ground. Fixed rules will, after all, produce different outcomes when applied to different facts.

  9. Joe says:

    Original understanding included a more restricted understanding of “equal” than we have today. But, the text in place and the overall principles behind it left an opening for more.

    The text and basic principles (“no caste” etc.) is “fixed.” The result, as different facts occur (e.g., modern practice involving women; new views on homosexuals, including practice and medical knowledge), is changing.

  10. Shag from Brookline says:

    Brett on Brown can best be described as “thin ice originalism.” Recall that Ed Meese’s “original intent” epiphany was an attack on the Warren Court, one of its earliest decisions being the unanimous Brown v. Board of Education (1954). The decision came down as I was finishing law school. I well remember the reactions to Brown and how long it took for its acceptance, however reluctantly, even by originalists (who obviously wanted to protect the theory of originalism even as the theory evolved – and continues to evolve). In this day and age, who dares openly to challenge Brown?

    At Balkinization I made reference to William P. Marshall’s “Progressive Constitutionalism, Originalism, and the Significance of Landmark Decisions in Evaluating Constitutional Theory” that focuses upon SCOTUS decisions in Barnette (1944), Brown (1954), Gideon (1963) and Reynolds (1964). The article is relatively short (26 pages) and is available at SSRN:

    http://ssrn.com/abstract=1952594

    Marshall “tests” these Landmark Decisions with originalism. “Thin ice originalists” should keep a ladder handy as they read this article – if they deign.

  11. Joe says:

    The acceptance of Brown as clearly w/i the four corners of originalism is to me somewhat akin to people saying the draft is clearly allowed as a way to “commandeer” citizens as compared to forcing people to eat broccoli because of its historical pedigree.

    But, as with Brown, the federal draft was once quite controversial, with people like Daniel Webster (and Taney for that matter) calling it into question. [See, e.g., the book Bill of Rights, by Prof. Akhil Amar.] In fact, at one point, a state court struck it down during the Civil War.

    As to originalists, Professor Earl Maltz in a panel discussion on 40th Anniversary of Reed v. Reed admitted, when challenged, his opposition to the case (sex) on originalist grounds would consistently applied challenge Brown as well. See, e.g., his chapter in “Constitutional stupidities, constitutional tragedies,” co-edited by Sanford Levinson. In the book, he challenges other originalists, such as McConnell, on the point. Others have did the same, though to show the limits of originalism, not the “tragedy” it sometimes requires.

  12. Shag from Brookline says:

    Jack Balkin’s recent post on originalism at his Blog might entice Gerard to get back in the discussion. Balkin distinguishes different versions of originalism tied to proponents. Maybe as an exercise Brett might pick a particular version that he can support. The post is somewhat like a scorecard for originalism.

  13. Shag from Brookline says:

    Regarding my comment #12, I hope that Balkin’s post results in more discussion/debate on originalism. Balkin includes in his post references to originalists John O. McGinnis and Michael B. Rappaport. My “To Read” pile includes their “The Abstract Meaning of Fallacy” available at SSRN:

    http://ssrn.com/abstract=1959668

    which is critical, inter alia, of Balkin’s originalism, perhaps sparked by Balkin’s recent books. It seems as if there is an originalism “cat-fight” underway. But the battle should not be limited to those claiming to be originalists. [I've been keeping my Internet roving eye out for Randy Barnett's reaction without success so far. Any information on this would be appreciated.] Rather, non-originalists – of various varieties – have a dog in this “cat-fight.”