Wednesday, November 01, 2017

Writing About Law in an Avalanche: What is a Scholar to Do?

By Eric Segall

How people research and write about law has changed dramatically during the course of my academic career. Twenty years ago, although there was an abundance of relevant scholarship on most hard legal questions, there were reasonable ways of dealing with the quantity of relevant work. Today, there is virtually no way to keep up with the avalanche of high-level scholarly output devoted to most legal topics and current cases.

In 1997, I published a law review article on originalism examining the first article ever found that used the phrase "living Constitution." That 1900 essay in the Harvard Law Review examined how judges should apply a fixed Constitution to changing circumstances. I argued that this author discussed that question as well as anyone since, and that there really wasn't much more to say about the originalism debate (okay I was wrong). I found that piece by physically looking through all the paper law reviews that were in existence from the late nineteenth century to 1905. There was no computer database at that time up to the task.

My research for that piece (after I found the key article) included reading law review articles, political science essays, and a few books. I spent about a year researching and writing. The relevant sources did not change much during that year. Although there was a lot of literature on the topic, it was not hard to identify the most influential and important sources and scholars. The task was daunting but realistically containable.

I just finished the first draft of my book "Originalism as Faith." To research this book, I had to cull through law review articles, books, essay, op-eds, blogs, and non-legal publications like SLATE, the Atlantic, Vox, and the National Review. I read important pieces in the Volokh Conspiracy, LawFare, Balkinazation, SCOTUSBlog, and a number of other on-line legal fora before even starting the writing process, and I have had to keep up with those sources throughout the process.

Moreover, academics now routinely submit amicus briefs on high-profile issues that contain substantive arguments that need to be addressed if one is writing in that area. For example, if you plan on writing about the intersection of first amendment law and non-discrimination statutes (the topic of this term's Masterpiece Cakeshop case), you'd best set aside substantial time on the various amicus briefs submitted by, among many others, constitutional law Hall of Famers Doug Laycock, Eugene Volokh, Ira Lupu, Steve Shriffin (with Seana Shiffrin and Mike Dorf), and Michael McConnell, advocating numerous different perspectives on the appropriate law governing the case.

The literature changes every day. Last week the second most cited legal scholar of this generation (Cass Sunstein) posted a draft essay on SSRN called "Originalism" discussing at length a draft essay by leading originalists Randy Barnett and Evan Bernick, that is also posted on SSRN. Neither piece has yet been accepted for publication, and both are works in progress. Larry Solum's book length treatment of originalism is also an evolving treatment of the issue posted on his blog and SSRN.

I read Barnett's and Bernick's essay months ago and wrote a response in my draft book. A few weeks ago they put a new version on SSRN, and my guess is they will update it again to respond to Sunstein's analysis which may cause Sunstein to post a new draft of his version after that. This is all before either piece has been published. Back in the old days of 1997, there were only completed books, articles, and maybe a handful (at most) of relevant non-law review treatments. The ability of scholars to post draft pieces for world-wide view has dramatically altered the legal research landscape.

The other major change for legal scholars is the all-too-real news cycle problem, which is a consideration that barely existed twenty years ago. To be heard over the din today, not only does one need to be smart at both substance and marketing, but one needs to be fast, very very fast. That skill is quite different than being comprehensive, careful, and thoughtful. It used to be that one had at least a year from a the date of a major Supreme Court case to contribute to the scholarly discussion of that case. The only real place to put the case in perspective was the law reviews. Very few professors wrote op-eds or magazine pieces. Today, a week is probably too long.

So is all of this good or bad, and what is a scholar to do? I have no strong opinion on the first question. I am pretty sure that with all the increased avenues of scholarship comes a greater democratization of the legal field. Folks like me at non-elite law schools can get our voices heard and scholarship read without relying exclusively on students at the top law reviews to take a chance on us. On the other hand, with the news cycle pressure taking up significant time, it is quite possible the overall quality of legal scholarship has deteriorated.

As to the second question, my experience over the last few years in the areas of originalism, standing, constitutional interpretation generally, free exercise of religion, second amendment, and free speech tells me that trying to comprehensively address the existing literature on those subjects in advance of writing on them is a fool's errand. I think the best one can do is try to identify a set of sources that represent thoughtful and diverse components of the larger debates and hope that does the trick. There really is no other way.

Last week I sent out the first draft of my originalism book to half-a-dozen academic friends. By the time I receive their comments and critiques, there will be a plethora of new contributions to the topic. By the time I address those, there will be many more. What is a scholar to do?


Shag from Brookline said...

Eric, have you seen:

"It’s a Wonde rful Originalism! Lawrence Solum
and the Thesis of Immaculate Recovery"
by Frederick Mark Gedicks

It's a short 8 pages. Mike (I'm not Rappaport) Ramsey critiques it at the Originalism Blog whereas Larry Solum at the Legal Theory Blog recommended it, even though Larry disagrees with some of the article. It's available at SSRN. The "Thesis of Immaculate Recovery" may tie into the title of your new book.

Some obscure originalists are in denial that originalism continues to evolve though King Barnett continues with his work in progress as does Larry Solum who is pleased when he is cited even in disagreement. The search for the Holy Grail of interpretation/construction of the Constitution continues. Keep in mind the originalist team of Don Quixote and Pancho tilting at all kinds of emoluments.

Joe said...

It's like shoveling snow in an ever continuing snowstorm, huh?

Guess a Shag-like love of the subject helps.

John Barron said...

Joe: "Guess a Shag-like love of the subject helps."

Guilty as charged. :)

I can't figure out whether LC types genuinely don't understand originalism, or simply don't want to. (I'd likely put "Bugsy" Segall in the latter camp, based on his fetish for banning opponents on Twitter.)

Originalism is a principled process for analyzing a text, founded upon axioms that in the abstract, no one would seriously question. First, it is presumed that words have meaning, which are fixed at the time they are used. Second, one presumes that authors of a text meant what they said and said what they meant in that text. Finally, as no man "is good enough to rule another without his consent" [A. Lincoln], the parties who are to be governed by it would have to have been able to give their informed consent.

As a matter of law, COTUS is a treaty between co-sovereigns. Contract law rules apply, as does the doctrine of pacta sunt servanda. The latter was 200-year-old law, even at that early date. Heydon's Case [1584] 76 Eng. Rep. 637 (Exch.). COTUS wasn't a perfect document: there's no glossary of terms, and no provision for dissolving the agreement. The Framers relied on pre-existing English law for their glossary, but state documents appeared to presume that individual states could withdraw at any time.

Like any good treaty, COTUS specifies a process by which the agreement can be changed: Amendments, treaties, and valid legislation can alter the social contract. But there is no provision by which a judge can alter or even veto a provision.

Think of law as a game of cards, and originalism as a aces-high full house. It's not the best hand possible, but it's going to beat the two eights of your LC. Why? Because it limits the discretion of unelected, unaccountable, and often corrupt judges better than your alternative.

A florid example was Prof. Dorf's mortifying assertion that "if the courts need to re-construe the pardon power to get that result, so be it." The problem with "the Ruler of 320 million Americans coast-to-coast ... [being] a majority of the nine lawyers on the Supreme Court" [Scalia]--apart from there being no colorable evidence of a grant of such despotic power to judges in either COTUS or the Framers' writings--is that you might be on the short end of the stick for 40 years. And to make matters worse, every judicial fiat is ex post facto law.

To the originalist, the pardon power is all but unlimited (as it was in British law). Your remedies are impeachment and amending COTUS. But to the LC advocate, "law" is whatever a judge found in his Depends last Wednesday. As "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14 (1954), and "justice must not only be done but must manifestly be seen to be done...." Rex v. Justices of Bodmin [1947] 1 K.B. 321, 325 (1947), a post hoc decree borne of naked expediency is undeserving of our acquiescence.

John Barron said...

shag: "Mike (I'm not Rappaport) Ramsey critiques it at the Originalism Blog"

He sticks a fork in it! "For originalism to have substantial weight, it needs to be able to claim that we can find the historical meaning of constitutional phrases a good bit of the time."

FG: "No theory of constitutional interpretation is viable in the United States unless it accounts for Brown."

Why? Because that clown says so? As Brown turns on interpretation of "equal protection of the law" and more specifically, the philosophical question of whether an education can be separate and still equal, originalism is neutral. The text says "equal protection of the law," and that phrase is what is to be parsed through. Originalism is neutral on the question of Brown, but the LC approach already precipitated Plessy.

At essence, FG (and, Shag!) relies upon an absurd false equivalence: "Originalism isn't perfect; therefore, our theory is as good as yours." We admit that it isn't perfect, but it is a structured procedure and thus, less susceptible to abuse. (And no, we don't own Scalia; even Cass Sunstein agrees that he was not an originalist on the bench.) We get it right most of the time, and where we don't, the real culprit is fuzzy drafting (e.g., "cruel and unusual punishment").

I'll ask again: What did the Framers mean when they conditioned judicial sinecures on "good Behaviour"? I can answer that question with reference to a quarter-millenium of British law, its use in state constitutions, and contemporary remarks by the Framers. What do you say it means, Joe, Shag, and Prof. Segall? And why do you say that?

This is the core problem with the LC: I can't know what the law is beforehand, nor can I rely on existing statements of the law, as they are always subject to radical change.

Shag from Brookline said...

Before moderation sets in, can we expect John to provide the answer to his question on "good Behaviour" that he poses?

"I can answer that question with reference to a quarter-millenium of British law, its use in state constitutions, and contemporary remarks by the Framers."

John, do so. It may hasten your rehab. Sounds like you're getting help from Monty Python with that Holy Grail, at least for that quarter -milenium of British law" that was being taught at the law schools the lawyer Framers attended that is in some manner incorporated into the Constitution. I'm waiting. And, John, please answer with "good Behaviour" or you won't get your meds.

Joseph said...

"I argued that this author discussed that question as well as anyone since, and that there really wasn't much more to say about the originalism debate (okay I was wrong)."

Your law review articles poses a good challenge to originalism and while there is always more that can be said on any topic, why has your view changed that there is more to say?

One possibility that comes to mind is the kind of scholarship offered by Prof. Bray that "cruel and unusual" is a hendiadys and Prof. Volokh's work on the meaning of the freedom of the press. But then again, though that scholarship challenges certain modern interpretations, such work seems part and parcel of Machen's view that we should seek out the original meanings.

In reading your article, it sparked the thought that the hobgoblin of consistency threatens any method of interpretation. For example, Machen's advocacy for reaching different decisions in seemingly identical cases (pp 417-418). Machen rightly seeks to differentiate law and facts but there is little concrete guidance on that score when each case goes before a court. Either an originalist or a living constitutionalist could - and the Court often does - try to resolve a case based on a homogenizing principle (thereby bypassing the legislative role, in the case-by-case sense discussed by Machen). I appreciate your view - hopefully I don't misstate it too badly - that we should tolerate greater disparity in the resolution of cases and the Supreme Court should be more restrained.

I think you give the best answer possible about how to navigate the contemporary publishing environment. It is much more of a conversation now (where even the rabble can take part in comment sections) and even to be influential there must be pressure to be more prolific.

John Barron said...

Shag: “can we expect John to provide the answer to his question on "good Behaviour" that he poses? … John, do so.”

With pleasure. (The essay will be shorter than Gedicks’s tome.)

Section 1 of Article III provides, in pertinent part: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." U.S. Const. art. III, § 1.

In the Shaggy Constitution, constitutional phrases mean “whatever a judge finds in his Depends on any given day,” and it comes as no surprise that judges treat that condition as a nullity. After all, despots like Kim Jong-Un and John Roberts don’t believe in restrictions on their power.

1. The Framers tell us how to interpret their Constitution.

As Madison observes, there is one and only one proper way to interpret the Constitution:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910); accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2. There is no contrary authority.

And every word has value. "It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." Marbury v. Madison, 5 U.S. 137, 174 (1803). Also, whenever “a technical word is used [in the Constitution], all the incidents belonging to it necessarily attended it.” 3 J. Elliot, Debates on the Federal Constitution 531 (1836). This understanding was freely accepted by Judge Pendleton, John Marshall, and Edmund Randolph in subsequent debate. Id. at 546, 558-59, 573. The Court adopted this line of reasoning in United States v. Wilson, 32 U.S. 150 (1833), wherein the very same John Marshall found that the scope of the President’s pardon power was determined by reference to English law:

The Constitution gives to the President, in general terms, "the power to grant reprieves and pardons for offenses against the United States." As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.

Id. at 160. [1 of 3?]

John Barron said...

2. Good Behaviour is a term of art well-established in English law

Good behavior tenure, and use of the writ of scire facias to enforce it, is almost as old as Magna Carta. The writ itself can be traced to the early fourteenth century; it was used to punish abuses of office since the reign of Edward VI. 2&3 Edw. 6, c. 8,
§13 (ca. 1540). A quarter-millenium may not be time immemorial, but it is the closest thing. And even a single transgression was sufficient to warrant removal: “Every voluntary act done by an officer contrary to that which belongs to his office is a forfeiture of that office.” Henry v. Barkley [1596] 79 Eng. Rep. 1223, 1224 (K.B.).

Although most agents of the Crown served "at the pleasure of the King," public officials in England were frequently given a freehold in their offices, conditioned on "good behavior." See e.g., 4 E. Coke, Institutes of the Lawes of England 117 (1644) (re: Baron of the Exchequer). Lesser lords were also given authority to bestow freeholds, creating an effective multi-tiered political patronage system, where everyone from paymasters to parish clerks enjoyed job security. See e.g., Harcourt v. Fox [1692] 1 Show. 426 (K.B.) (clerk of the peace).

At common law, an official’s good behavior tenure was originally enforced by the sovereign through the writ of scire facias. But since this power concerned only the interests of his subjects, and the King exercised it purely in parens patriae, he was bound by law to allow the use of it to any subject interested. Blackstone explains:

WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias.

3 Blackstone, Commentaries *260-61 (1765); see, United States v. Amer. Bell Tel. Co. , 28 U.S. 315, 360 (1888) (explaining process). (Offices were bestowed via letters patent, subject to this condition. E.g., 4 Coke, Institutes of the Lawes of England 117 (in re: Baron of the Exchequer—a judge); Harcourt v. Fox [1692] 1 Show. 426 (K.B.) (clerk of the peace)).

The upshot of the condition of good behavior is that if an 18th century English judge didn’t do his job, he lost his job, and the threat of losing his job motivated him to do his job. Both a willful refusal by an official to exercise the office, e.g., R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378 (K.B.) (corporate recorder forfeits his office if he fails to attend corporate meetings) and "oppression and tyrannical partiality …. in the administration and under the colour of their office," 3 Blackstone at 140-41, are violations of this tenure, justifying an immediate removal from the bench.

[2 of 3?]

John Barron said...

Even cursory review of English law proves this reading out. The Act of Settlement [1701], 12 & 13 Will. 3, c. 2, §3, provided that "Judges Commissions be made Quamdiu se bene gesserint; … but on the Address of both Houses of Parliament, it may be lawful to remove them." Think about this carefully. On the one hand, English judges were given lifetime sinecures subject to the condition of good behavior … but on the other, Parliament could literally remove them from the bench for any reason or no reason at all. If the condition of good behavior was intended to protect English judges from the caprice of Parliament, it would be useless by definition. Ergo, Parliament had something else in mind. Thus, Harvard’s legendary Raoul Berger wrote that "the decided preponderance of authority, Lord Chancellor Erskine, Holdsworth, and others, consider that this provision did not exclude other means of [judicial] removal, that is, by impeachment, scire facias, or criminal conviction." Raoul Berger, Impeachment: The Constitutional Problems 157 (Harvard U. Pr. 1974). See generally, Berger, Impeachment of Judges and "Good Behavior" Tenure, 79 Yale L. Rev. 1475 (1970).

3. The Framers intended that aggrieved citizens have a remedy for judicial misconduct.

More importantly, the Framers had something in mind. In advocacy of the proposed Constitution to the people of New York, Alexander Hamilton concluded that “the standard of good behavior for the continuance in office of the judicial magistracy, … [and] the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 87, 437 (Alexander Hamilton) (I. Kramnick ed. 1987).

“When an office held ‘during good behavior’ is terminated by the grantee’s misbehavior, there must be an ‘incident’ power to ‘carry the law into execution’ if ‘good behavior’ is not to be an impotent formula.” Raoul Berger, Impeachment: The Constitutional Problems, 2d ed. (Harvard U. Press 1999), at 132. As Madison said: "‘No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized.’" Id. at 138 (quoting Federalist No. 44). As such, even if there is no express means available by which one effects a removal of a federal judge for violation of good behavior tenure, the courts are obliged to devise one. See, Marbury v. Madison, 5 U.S. at 163. Such a power must exist, as "[a] constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed." Jarrolt v. Moberly, 103 U.S. 580, 586 (1880). That the Constitution does not state one explicitly is of no moment, for as Chief Justice Marshall notes, "we must never forget that it is a Constitution we are expounding," as the alternative would have been a prolix and virtually incomprehensible "legal code." McCullough v. Maryland, 17 U.S. 316, 407 (1819).

That the good behavior clause is not merely a clumsy cross-reference to impeachment was established a century ago in the investigation of Judge Emory Speer of the District of Georgia, who was charged with “despotism, tyranny, oppression, and maladministration” in the course of judicial decision-making. Charles Geyh, When Courts and Congress Collide: The Struggle for Control of America’s Courts 160 (U. Mich. Press 2008). Specifically, the congressional committee concluded that “a series of legal oppressions [constituting] an abuse of judicial discretion” did not constitute an impeachable offense, id. at 160-61 (quotations omitted), despite being self-evident serial violations of his good behavior tenure. Besides, the Framers didn’t do “clumsy.”

[3 of 4]

John Barron said...

“In sum, no fewer than eight revolutionary state constitutions provided that good behavior would be determined in the ordinary courts or in a judicial proceeding outside of the impeachment process.” Prakash and Smith, How to Remove a Federal Judge at 113. While a detailed analysis of those provisions is beyond the scope of this essay, one item is worth noting: The Northwest Ordinance of 1787, 1 Stat. 51, conditioned judicial sinecures upon "good behaviour," even though the Continental Congress didn’t even have the power of impeachment. Prakash and Smith, Removing Federal Judges Without Impeachment , 116 Yale L.J. Pocket Part 95 (2006). Ergo, it logically follows that it was not a clumsy cross-reference to the impeachment power.

Now, let’s do a reality check. As Prakash writes, “the relative silence of the Framers with respect to the “good Behaviour” provision suggests that they harbored no intention to deviate from what that term had long been understood to mean. Id. at 167. Moreover, vestIng the power to remove judges for cause by the aggrieved citizen respects the separation of powers. And without this provision, judges have an almost unlimited power, which defeats the Framers’ intent.

There is only one coherent way to interpret the GB Clause, and only originalism gets us there. Q.E.D.

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Shag from Brookline said...

The version of originalism currently at the top of the evolving pile is based upon original public meaning at the time of enactment of the Constitution and its Amendments. What is the applicable public? Certain Framers? Certain ratifiers? Scholars of the history of England and its laws? Or did that public include a broader group of the people living at the appropriate time of such enactments? The top of the evolving originalism focuses on the words in the Constitution and Amendments. Did all of that public have access to and understand the background that John presents? And as to all that old stuff from the motherland, did John use corpus lingues methods or a divining rod to ascertain in context the original public meanings of all that old motherland from the motherland?

It isn't clear that John is a charter member of the so-called New Originalism that calls for construction when interpretation is not available to determine original public meaning. John seems to ignore construction, relying more on incorporation from the past whatever John thinks is relevant to the Constitution as he understands original public meaning back at the time of such enactments. John doesn't address Randy's New Originalism spirit-method for applying construction when interpretation is not available. Maybe John isn't into spirits. That might account for John "good Behaviour." I'll drink to that.

So I await the next chapter that might incorporate from various versions of Genesis.

Shag from Brookline said...

Query: Why didn't ALL the Framers signing onto the Constitution tell us in the Constitution itself how to interpret it? What might the spirits say about this?

John Barron said...

Shag: "The top of the evolving originalism focuses on the words in the Constitution and Amendments. Did all of that public have access to and understand the background that John presents?"

Do we count the people who couldn't read? C'mON, Shag!

At least in New York, the citizenry had the Federalist Papers and the Anti-Federalist responses to weigh. There were over 3,000 copies of Blackstone printed in America--a country of less than 3,000,000 people. Debates were held in town halls throughout the young nation. As near as can be determined, Americans were engaged.

If you didn't read the fine print in the contract you signed, it's on you.

Shag: "And as to all that old stuff from the motherland, did John use corpus lingues methods or a divining rod to ascertain in context the original public meanings of all that old motherland from the motherland?"

That comment is breathtakingly stupid. How do YOU use precedent? You could go all the way back to Magna Carta--half of the state constitutions quoted it, either directly or indirectly!--but most of the precedent relied on was less than a century old. Are you saying that any case older than you is no longer precedent?

Blackstone was the Corpus Juris Secundum of its day. Find a rule there, and your work as a colonial lawyer was basically over.

Shag: "John seems to ignore construction"

"A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed." Jarrolt v. Moberly, 103 U.S. 580, 586 (1880). "It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." Marbury v. Madison, 5 U.S. 137, 174 (1803). "If a plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal." Ashby v. White [1703] 92 Eng.Rep. 126, 136 (K.B.). The “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” Marbury v. Madison, 5 U.S. 137, 163 (1803). It is “a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist.” Kendall v. United States, 37 U.S. 524, 624 (1838). Moreover, if “there be an admitted wrong, the courts will look far to supply a remedy.” DeLima v. Bidwell, 182 U.S. 1, 176-77 (1901).

Think of it as a reality check. Words have meaning, but if they precipitate an absurd result, you are probably doing it wrong.

Shag from Brookline said...

John, in your role as a Humpty-Dumpty originalist, words can and do have different meanings.

Joe said...

the spirits ...

John Barron said...

Shag: "Query: Why didn't ALL the Framers signing onto the Constitution tell us in the Constitution itself how to interpret it?"

No need. First, there was no language drift. Second, the evidence we do have shows that the Framers' view was unanimous. Third, brevity is next to godliness.

The problem with the LC is that it is a sort of legal prednisone, with a list of nasty side effects as long as your arm. Let's say that COTUS included the word "gay." Should we use the 18th century definition or the modern one? And if we use the latter, haven't we amended COTUS sub rosa?

And by what authority do judges have the power to alter or even excise COTUS provisions at will? No sane person would ever knowingly grant such unfettered discretion to anyone who is unelected and unaccountable. To even make an argument for the LC is to refute it.

Of course, the Framers didn't anticipate the election of a malignant narcissist like Donald Trump, who may have had foreign assistance in becoming President. But where is the authority granted to judges to rewrite COTUS as they see fit? Shelby County should be a cautionary tale.

Originalism is more of a corset than a straight-jacket, but the alternative you yearn for is a judicial dictatorship. Originalism is the lesser evil.

John Barron said...

Shag: "in your role as a Humpty-Dumpty originalist, words can and do have different meanings."

You went there. Thank you!

"...there are three hundred and sixty-four days when you might get un-birthday presents —'

'Certainly,' said Alice.

'And only one for birthday presents, you know. There's glory for you!'

'I don't know what you mean by "glory",' Alice said.

Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant "there's a nice knock-down argument for you!"'

'But "glory" doesn't mean "a nice knock-down argument",' Alice objected.

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

So, who IS to be master? The absurdly biased Justice Neil Humpty [that is what the "H" is for, right?] Gorsuch? Or the Framers (who are likely to be neutral wrt controversies of the day)?

That is the essence of the Originalism/LC debate. And as someone who is generally progressive, one would think that the prospect of four Gorsuches being our master is mortifying to you.

Shag from Brookline said...

At 12:35 PM, John's comment includes this:

"Third, brevity is next to godliness."

John, I'm not going to accuse you of godlessness, but while you may not get laryngitis, you may get carpal tunnel syndrome. Eric's title for his book "Originalism as Faith" might serve as a title your self-published book-in progress on originalism. I understand your recent double-knee replacements resulted from your praying for no-doubta originalism, which goes beyond the current version of the New Originalism, as you eliminate construction, perhaps relying upon the support of the Holy Spirit in pursuit of that Holy Grail I mentioned earlier. I realized that you are in rehab, keeping you from your C.P.A. day job. But it's interfering with the praying needed by you that got you to your no-doubts originalism, the faith provided by getting down on one's knees.

With Congress considering the Trump cut, cut, cut tax bill, I can understand you are champing at the bit to get back to But the rehab comes first. It has been said "When life hands you lemons, make lemonade." So while you're rehabbing, you might consider this H-Net Notification I received today:


Legal History and Originalism: Rethinking the Special Relationship

Law and History Review, a leading journal of legal history published by Cambridge University Press for the American Society for Legal History, seeks article proposals for a special volume entitled “Legal History and Originalism: Rethinking the Special Relationship.” In the past thirty years, the method of constitutional interpretation known as originalism has taken center stage in the legal academy and the broader universe of American jurisprudence. To a great extent, originalism draws its power from its use of history as a lens to make sense of contemporary legal problems. Powerful legal opinions by originalist judges and justices write their own legal histories while leaning heavily on leading works of legal history. Because of the prominence of originalism in American law, we believe it is a proper time to critically assess the scholarly underpinnings of originalist theory and practice. We therefore seek articles of original research that explore the relationship between originalism and the field of legal history, broadly construed.

Proposals should be no more than a one single-spaced page, including footnotes, and should explain the topic and argument of an article that would be 5,000 words, including notes. The due date for proposals is December 20th, 2017. Authors will be notified of the status of their proposal by January 15th, 2017. Articles will be due in December, 2018. Proposals should be emailed as attachments (.PDF or .DOC) to the Editor-in-Chief of Law and History Review, Gautham Rao at

Read more or reply


I realize you are not fond of academics or even the late Justice Scalia. But this is an opportunity to do what MA politicians have been trained to do: "Don't get mad, get even." I don't know if you subscribe to H-Net but it should be a natural for you with your ken on English history and law. [Note: The January 15th, 2017 date seems to be an error, perhaps it should be 2018.} I trust you could work with the 5,000 words limit. You can put a stop to claims, even by academic originalists, that originalism is continuing to evolve. No need to thank me; I'm glad I can help.

John Barron said...

John: "So, who IS to be master? The absurdly biased Justice Neil Humpty [that is what the "H" is for, right?] Gorsuch? Or the Framers (who are likely to be neutral wrt controversies of the day)?"

Shag: [crickets chirping]

Old saw: "If you don't have the facts, argue the law. If you don't have the law, argue the facts. If you don't have either, attack your opponent."

Poor Shaggy. He has no answer. He can't explain why it is right and good that Justice Neil Humpty-Dumpty Gorsuch and his confederates be allowed to constitutionalize their personal preferences. Nor can he find any support in COTUS for a grant of such broad and unchecked power.

Shag: "I understand your recent double-knee replacements resulted from your praying for no-doubta originalism,"

This is a tragic testament to Shag's lack of mental prowess and/or positive arguments for his position. Sad. Bigly.

All I have said here is that "originalism" is a principled process by which a contract or similar document (COTUS is a treaty) is interpreted, and that there is overwhelming evidence that the Framers' generation expected that it would be interpreted in that manner. They even came up with ways to change it!

As for disagreement between originalists, think of it like hurricane prediction models: There are some minor disagreements, but the models are getting better. Unlike those who have become living fossils, I embrace change and scholarly advancement.

As for my persistent reliance upon precedent and the observations of the Framers, that might not have been necessary in the traffic court which was Shag's apparent bailiwick. As I often tell judges, "you don't want my personal opinion."

Shaggy's faith is as blind as his bad eye. "We need to be able to change COTUS for it to do what we want it to do!" Courts can rewrite the pardon power, abolish the Seventh Amendment, disembowel the Bill of Rights through expanding immunity, and basically rule us in an arbitrary and capricious manner, and it's all good to the Shagster, as long as we can grab their guns. Guess what? Four Neil Gorsuches means that we'll soon be able to own automatic weapons.

Shag: "With Congress considering the Trump cut, cut, cut tax bill,"

Not in the biz these days, but on my first reading, it is designed to rape the middle class. Not a fan of Mr. P90X. Old coot, thinking Belize. F*** this country!

Shag: "I realize you are not fond of academics or even the late Justice Scalia."

What are you talking about, Shag? I lost respect for Segall on account of his practices on Twitter, but I have a much higher opinion of academicians like Barnett, Solum, Jordan Paust, and Suja Thomas. My beef with Scalia surrounded his hypocrisy; would have loved to have deposed him.

I'd love to argue the controversy on the merits, but Shag-man doesn't seem to have any arrows in his quiver.

Shag from Brookline said...

Gee, I guess I wasn't clear when I referred to John's role as a Humpty-Dumpty originalist in my 11:37 AM. I meant that John was Humpty-Dumpty, not Justice Gorsuch. I was under the impression that the originalism community highly praised the nomination and appointment of Grouch because of his strong originalism creds. Why Larry Solum even testified about originalism in the Senate process to help pave the way to Gorsuch's approval. Perhaps all those originalists were out of step about Gorsuch? [Note: Being one-eyed and still learning to use TextEdit, typing in Gorsuch gets changed to Grouch requiring me to backtrack to make the correction.]

John, regarding my having no arrows in my quiver, that's because I rely upon the merits of the 1st A and not the 2nd A. But what is the controversy? Perhaps if you responded to H-Net and got published, you could make your originalism bones as have Randy, Larry, Moe and Curly, going beyond their evolving originalism with your own brand of no-doubt originalism. Me, I'm a non-originalist. SCOTUS has how many originalists? You've raised some doubts about Gorsuch and I have doubts about Thomas in the long run.

I accept your withdrawal. Hopefully I have helped your rehab. But couldn't you have waited until moderation set in, or are you just plain immoderate? Get better and hit the links and putts around. Maybe Trump will let you ride in his golf cart as you two have something in common.

John Barron said...

Think about it. Five RW LC guys can do a lot more damage than five originalists.

What "withdrawal"? Sounds like you are hearing voices.

Shag from Brookline said...

Might those voices I'm hearing be Randy's spirits emanating from the constitutional sinkholes in the New Originalism's evolving construction zone? Maybe it's time for a constitutional seance/intervention with Randy, Larry, Moe and Curly.