Further Thoughts on Halbig and Originalism

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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6 Responses

  1. Joe says:

    We can get an imperfect (historians, who are experts at this, continue to debate things closer to today and more well documented than the events of 1787 here) original understandings, but “originalists” (I admit the term is so inexact to be somewhat unhelpful akin to saying someone is a “Christian” — you have people talking about how “Christians” act in ways people who grow up taking CCD classes and are regular mass goers a bit confused) too often try to do too much.

    Cf. comments about how much we know about the debates, including as compared to the PPACA. As I noted in that thread, that comment is hard to take that seriously on some level.

    And, the ultimate understanding turns out to be a split decision and but one part of applying the law to the current day with new facts, doctrine etc. Many experts argue the Framers themselves knew this and “originalism” often isn’t really “originalist.” As Justice Souter once noted, use of originalism is fine, depending on how much you want it to do.

  2. Brett Bellmore says:

    “Originalists, in my view, just tend to be overconfident in what they think they know or can figure out.”

    Whereas living constitutionalists tend to see ambiguity where nobody else would find it. For the full blown living constitutionalist, nothing can be written clearly enough to compel an interpretation they really don’t like. They just abstract high level principles from the text, and then apply them in contradiction to what the text actually says. (Commerce clause jurisprudence is a good example of this.)

    Different approaches to interpretation have their own strengths and temptations. The temptation of originalism is certainty where none is present, its strength is a willingness to let the text be what it is, rather than what you’d like it to be. Originalism can admit that the thing being interpreted really doesn’t mean something the reader likes. And if you can’t bring yourself to do that, you’re not actually interpreting…

  3. Gerard Magliocca says:

    Suppose you don’t know what the original meaning is. Then what do you do? Presumably some version of living constitutionalism.

    • Brett Bellmore says:

      If you can’t find an original meaning, and the text itself doesn’t dictate a meaning on textual terms, perhaps it’s time to throw up your hands and call it “void for vagueness”. Rather than just inventing a congenial meaning.

      • Commenter says:

        That’s incorrect, at least in the context of The Halbig litigation and other administrative-law cases. When Congress (a) enacts a truly ambiguous text and (b) delegates authority to an agency to administer the statute, the agency’s reasonable interpretation controls. Under your view, Brett, the FTC Act would be void for vagueness.

        • Brett Bellmore says:

          And I’d be fine with that. I don’t accept that the Legislature is entitled to delegate writing laws to the Executive branch.

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