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Today in the Community: October 11, 2011

Our first topic of the week is Florence v. Board of Chosen Freeholders of the County of Burlington , which is scheduled for oral argument tomorrow.  At issue is whether the Fourth Amendment forbids a jail from conducting a suspicionless strip search whenever an individual is arrested, including for minor offenses.  For a preview of the case, check out Lyle Denniston’s coverage here; additional coverage is available here  and here.

Click here to participate in this ongoing Community discussion. For information and instructions on how to register and add your voice to the topic, check out Tom’s guide.

Tomorrow’s topic will be Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; in that case, which was argued last week, the Court considered the scope of the “ministerial exception” to federal antidiscrimination laws.

Disclaimer: Goldstein & Russell, P.C. serves as counsel to the petitioner this case.

Finally, here are five first-rate comments submitted since we started last Friday’s thread on originalism:


Andrew Coan 

Should originalism guide constitutional interpretation in the Supreme Court? Rather than take sides here, I prefer to use this space to survey the arguments that might support an affirmative answer. They are surprisingly few in number. And because originalism is a political phenomenon as much as a constitutional theory, they are often lost in the crossfire.

Before I begin, it is necessary to clear up a persistent confusion. Proponents of originalism sometimes speak and write as if their position needed no justification. A judge’s job is to interpret the Constitution. Textual interpretation entails the search for original meaning. Ergo, judges should be originalists. QED. This cannot be right. As leading originalists concede, nonoriginalism is the norm in American constitutional practice. It is certainly the norm in most other constitutional systems around the world. That does not mean that nonoriginalism is correct or inevitable. It does mean that originalism is a choice. As such, it requires justification.

There are four arguments that might do the trick:

First, originalism might be compelled by respect for popular sovereignty. The Constitution derives its democratic pedigree from the state conventions that ratified it. And what those conventions endorsed was the document’s original meaning. On the other hand, the members of these conventions are all long dead and lived in circumstances radically different from our own. It is hardly obvious that popular sovereignty requires their views to prevail over those of contemporary elected officials, which is just what originalism entails.

Second, originalism might be necessary to preserve the rule of law and in particular to constrain discretionary judicial authority. On this view, the essential purpose of a constitution is to subject the power of judges—and, through them, other government officials—to fixed legal constraints. Only originalism is consistent with this purpose because only originalism treats the meaning of constitutional constraints as fixed. On the other hand, in actual practice, original meaning is frequently and notoriously indeterminate. More fundamentally, every mainstream theory of constitutional interpretation constrains in some way. The question is which constraints we should prefer.

Third, originalism might produce better consequences than competing approaches. This is the usual sort of justification for setting up government institutions in one way rather than another, and some leading originalists have embraced it. On the other hand, good consequences are in the eye of the beholder. For those who dislike the substance of original meaning, this argument is a reason to reject rather than embrace originalism. Moreover, once consequences are admitted to be the relevant measuring stick, originalism begins to seem superfluous. Why should interpreters follow original meaning as a reasonable but obviously imperfect mechanism for achieving good results rather than pursuing such results directly?

Fourth, and finally, originalism might follow logically from our commitment to a written constitution. Why in the world should we care about marks on a page—much less treat them as binding law—if we do not care about their meaning to those who put them there? On the other hand, why do dozens of other countries consider themselves committed to written constitutions while openly disavowing originalism?

There you have it. If you find one or more of these four arguments persuasive, you should be an originalist. If not, you should not. Wherever you come down, remember that originalism is a choice. Like any other choice, it requires justification.


Doug Kendall 

At a remarkable Senate Judiciary Committee hearing yesterday featuring two Supreme Court Justices – Antonin Scalia and Stephen Breyer — Justice Scalia drew laughter with his predictable line that he wished the “living Constitution would die.”

The funny thing is that, to a large degree, it already has. Dead or dying, too, is the version of originalism that came into flavor in the 1980s with the writings of Robert Bork and the cheerleading of Attorney General Edwin Meese. While political debates and media accounts largely remain stuck in the 1980s deathmatch between living constitutionalism and original intent originalism, constitutional theorists across the political spectrum have moved on.

That is the point of an article entitled Laying Claim to the Constitution: the Promise of New Textualism (, written by University of Virginia Law Professor Jim Ryan, which Constitutional Accountability Center has released recently as a discussion draft.

New textualism is the name we have given to a growing consensus among scholars across the political spectrum about what is right about originalism and what is right about living constitutionalism. Like originalists, new textualists believe that constitutional interpretation must start with a determination, based on evidence from text, structure, and enactment history, of what the language in the Constitution actually means. Like living constitutionalists, new textualists believe that while the meaning of the Constitution does not change, application of those principles can lead to different outcomes as circumstances change.

New textualists also reject the parts of originalism and living constitutionalism that deserve to be permanently discarded. Living constitutionalists are wrong to the extent they argue that the Constitution’s text has no fixed meaning and that judges have the power to remake the Constitution to meet the demands of the day. Originalists are wrong to the extent they let the intent of the Framers and ratifiers trump the meaning of the words they ratified. New textualists look carefully at history—both the enactment history of particular provisions and the broader historical events that produced the need for the text—to understand the meaning of the Constitution’s text. But they do not let history or original intent trump text.

None of this is or should be very controversial. But there is a stubborn resistance among many progressives about admitting that the Constitution’s text and history actually provide clear guidance about important constitutional questions. And there is a stubborn resistance among many conservatives about following the Constitution’s original meaning when it points to a progressive outcome.

The promise of new textualism is that it offers both conservatives and progressives an apples to apples conversation about the law and the Constitution. We all need to stop fighting about labels – living constitutionalism, originalism, judicial activism and the like – and start debating what the Constitution actually says and means.


Bradley Smith 

Originalism, and more specifically original meaning, seems to lack any political leaning whatsoever. A problem, approached through the lens of original meaning, has two possible outcomes:

1) There is an applicable part of the Constitution that can be applied to the issue, and the views of a reasonable person at the time the applicable part of the Constitution was ratified give a definite way to resolve the issue.


2) There is no applicable part of the Constitution, and as such the issue is to be resolved outside the judiciary.

Of the two possible outcomes, neither one is inherently conservative.

Option one can be better explored by using an example, such as the 8th Amendment’s protection against cruel and unusual punishments. According to this theory, the best way to resolve disputes arising about this clause is to look at what a reasonable person at the end of the 18th Century would view as cruel and unusual, and forbid such punishments as unconstitutional. Putting aside difficulties in determining a reasonable person’s thoughts from two hundred years ago, the outcome would likely allow beating, whipping, and branding at a minimum, with death being a completely permissible punishment. The death penalty is a traditionally conservative idea, and so using original meaning to permit the death penalty would be viewed as a conservative outcome.

Original meaning seems to produce conservative results only because society has, on the whole, become much more liberal than it was 200 years ago. Were society today more conservative than in the past, original meaning would tend to produce results viewed as liberal. With this in mind, Originalism does not necessitate a conservative outcome. However, as applied to the American constitution the results will likely be conservative due to the shift in public values over time.

Outcome 2 can also allow for both liberal and conservative outcomes. If the constitution has nothing to say on an issue, resolving that issue should be left to the legislature (according to my understanding of Justice Scalia’s legal philosophy. See his dissent in Romer v. Evans). This outcome will obviously change with the composition of the legislative branch attempting to resolve the issue. As such, outcome 2 does not necessitate a conservative outcome.

Originalism appears to be favored by conservatives only because it hearkens back to the ‘good ole days.’ How the outcome of its use is viewed is dependent on how society has shifted its values in the time between the constitutional provision in question being enacted and the time it is challenged in court. Keeping this mind, it seems completely plausible to me that in an alternate universe the prompt reads: “In this thread, comment on whether originalism necessarily produces liberal outcomes.”


John McGinnis and Mike Rappaport 

We have developed a theory of originalism called original methods originalism. Original methods originalism posits that the correct interpretation of the Constitution is that which would be reached by applying the methods of interpretation deemed applicable by its enactors. Original methods originalism has strong support from both a positive and normative perspective.

As a positive matter, original methods originalism provides the most accurate method for determining the meaning that people at the time of enactment would have attributed to the Constitution. The Constitution itself declares that it is law, and in the Framing period law was understood to be interpreted according to distinctive legal methods. We have argued that the legal methods employed then focused on the plain meaning of the text but supplemented that inquiry by considering structure, purpose, and canons of interpretation to resolve ambiguity and vagueness.

Normatively as well, original method originalism is attractive. Our theory argues that originalist interpretations are likely to have better results than those of living constitutionalism. In particular, the beneficence of our Constitution derives from the consensus support it gained among the enactors under relatively stringent supermajority rules. In considering whether to support the constitution, the enactors would have voted for or against the constitution based on the meaning they attributed to it, as determined by the contemporaneous interpretive rules. Thus, the meaning of the constitution that a supermajority of enactors approved as beneficial would be based on the methods that the enactors expected to apply.

The recent case of Heller v. District of Columbia, perhaps the most important originalist opinion in several generations, provides the best contemporary illustration of original methods originalism at work. Heller, of course, interpreted the Second Amendment, which provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Amendment contains both a prefatory clause and an operative clause, the combination of which could easily be a source of confusion. But the majority held that the law at the time of the Constitution’s enactment had an accepted interpretive canon that clarified the matter. The canon held that a prefatory clause could clarify an ambiguity, but could not otherwise limit or expand the operative clause. Therefore the majority held that operative clause – the right of the people to keep and bear arms – was unambiguous and therefore could not be limited by the militia preamble.

Our point here is not to defend the details of the majority’s claims, but only its general approach to constitutional interpretation. The majority looked to original interpretive methods to resolve ambiguity. If this approach became common practice at the Court, our constitutional law would look outwards toward objective evidence of meaning rather than inward to the Justices’ own preferences. Our fundamental law would both become more rule-like and generally reach better substantive results.


Scott Kieff –

Both sides of today’s debates about patents have some odd bedfellows—and the Supreme Court is no different. Those focusing on the importance of strong patents have included unions, many Republicans, small businesses, and some large pharmaceutical companies. Those focusing on the problems of over-enforcement of patents have been many Democrats joined by a number of big businesses from the high technology sector including Microsoft, Google, IBM, and Cisco, as well as some other large pharmaceutical companies. In the recent Supreme Court patent cases, both Justice Scalia and Justice Breyer have been critical of patents. And in the 2006 Supreme Court eBay decision, both Chief Justice Roberts and Justice Ginsburg spoke in favor of strong patents. Similarly, our prior patent system, 1952 Patent Act, was endorsed by leading jurists of various political stripes including Giles Rich, an Eisenhower appointee, Learned Hand, generally viewed as a centrist, and Jerome Frank, generally viewed as a populist. And the 1982 creation of the Federal Circuit to strengthen the patent system by bringing case law more into line with the 1952 Patent Act was a major domestic policy initiative of President Carter that was signed into law with much fanfare by President Reagan.

Recommended Citation: Aaron Tang, Today in the Community: October 11, 2011, SCOTUSblog (Oct. 11, 2011, 8:23 AM),