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Friday, June 27, 2008

Are we all originalists now?

Dale Carpenter asserts that we're all originalists now judging by both the majority opinion and dissent in yesterday's Heller decision.
It’s not surprising that Justice Scalia turned to the text and to originalist sources to determine the meaning of the words of the Second Amendment. And while the Stevens dissent makes noises about United States v. Miller as if it controls the outcome in favor of the constitutionality of heavy regulation of firearms, most of his dissent grapples with originalist questions. Stevens might not be a very accomplished originalist, or you might think he was wrong in this instance, but the mere fact that he and the three who joined him paid such obeisance to originalism on a matter of constitutional first impression confirms again its ascendance as a methodolgy.
When I was at the Supreme Court Institute, we had the opportunity to meet with former clerks at the Supreme Court. My group met with Christopher Landau, who had clerked for both Scalia and Thomas. Someone asked him how he thought the Court had changed in the almost 20 years since he had clerked at the Court and his answer was that, due to Scalia's emphasis on original meaning, there is a difference in how lawyers write their briefs. He thought that pre-Scalia, briefs were often based on policy and now many more briefs make at least a gesture towards the original meaning of the words in the Constitution. That's quite a shift and it can all be credited to Scalia's efforts to base judgments on the original sense of the words of the Constitution and laws.

However, there was a difference between how Scalia and Stevens attempted to use originalism. Randy Barnett, whose work was cited in both the majority and Breyer's dissent yesterday, points to the differences between how the majority and minority approached the Second Amendment.
Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.
Barnett, wrote The Lost Constitution: The Presumption of Liberty, in which he argued for a return to a jurisprudence based on the original meaning rather than the original intent of the Constitution so this contrast between Scalia and Stevens is custom-made for him. Barnett and many other commenters have noted, that once again, this decision shows that elections matter. For all that Obama has weaved and ducked on this issue, does anyone doubt that his nominations to the Supreme Court would be aligned with the minority in yesterday's decision rather than the majority?
Labels: Supreme Court

posted by Betsy Newmark permalink 7:22 AM 0 comments

Comments:

Dale Carpenter asserts that we're all originalists now judging by both the majority opinion and dissent in yesterday's Heller decision.

It’s not surprising that Justice Scalia turned to the text and to originalist sources to determine the meaning of the words of the Second Amendment. And while the Stevens dissent makes noises about United States v. Miller as if it controls the outcome in favor of the constitutionality of heavy regulation of firearms, most of his dissent grapples with originalist questions. Stevens might not be a very accomplished originalist, or you might think he was wrong in this instance, but the mere fact that he and the three who joined him paid such obeisance to originalism on a matter of constitutional first impression confirms again its ascendance as a methodolgy.

When I was at the Supreme Court Institute, we had the opportunity to meet with former clerks at the Supreme Court. My group met with Christopher Landau, who had clerked for both Scalia and Thomas. Someone asked him how he thought the Court had changed in the almost 20 years since he had clerked at the Court and his answer was that, due to Scalia's emphasis on original meaning, there is a difference in how lawyers write their briefs. He thought that pre-Scalia, briefs were often based on policy and now many more briefs make at least a gesture towards the original meaning of the words in the Constitution. That's quite a shift and it can all be credited to Scalia's efforts to base judgments on the original sense of the words of the Constitution and laws.

However, there was a difference between how Scalia and Stevens attempted to use originalism. Randy Barnett, whose work was cited in both the majority and Breyer's dissent yesterday, points to the differences between how the majority and minority approached the Second Amendment.

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

Barnett, wrote The Lost Constitution: The Presumption of Liberty, in which he argued for a return to a jurisprudence based on the original meaning rather than the original intent of the Constitution so this contrast between Scalia and Stevens is custom-made for him. Barnett and many other commenters have noted, that once again, this decision shows that elections matter. For all that Obama has weaved and ducked on this issue, does anyone doubt that his nominations to the Supreme Court would be aligned with the minority in yesterday's decision rather than the majority?

Labels: Supreme Court

posted by Betsy Newmark permalink 7:22 AM 0 comments

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Friday, June 27, 2008

Are we all originalists now?

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HOME Betsy neither necessarily uses, nor endorses, the products advertised on this site. The truth about Avesil Cheap Hosting Atlanta Bankruptcy Attorney Dallas Bankruptcy Attorney Wikio Get exclusive travel deals and book discount cheap flights Online Bachelors Degree Comments from an AP history and government teacher in Raleigh, NC. e-mail betsynewmark AT gmail.com Commissions earned from selling items through Amazon will go towards buying materials for my classes. Thank you. Site Feed		Friday, June 27, 2008 Are we all originalists now? Dale Carpenter asserts that we're all originalists now judging by both the majority opinion and dissent in yesterday's Heller decision. It’s not surprising that Justice Scalia turned to the text and to originalist sources to determine the meaning of the words of the Second Amendment. And while the Stevens dissent makes noises about United States v. Miller as if it controls the outcome in favor of the constitutionality of heavy regulation of firearms, most of his dissent grapples with originalist questions. Stevens might not be a very accomplished originalist, or you might think he was wrong in this instance, but the mere fact that he and the three who joined him paid such obeisance to originalism on a matter of constitutional first impression confirms again its ascendance as a methodolgy. When I was at the Supreme Court Institute, we had the opportunity to meet with former clerks at the Supreme Court. My group met with Christopher Landau, who had clerked for both Scalia and Thomas. Someone asked him how he thought the Court had changed in the almost 20 years since he had clerked at the Court and his answer was that, due to Scalia's emphasis on original meaning, there is a difference in how lawyers write their briefs. He thought that pre-Scalia, briefs were often based on policy and now many more briefs make at least a gesture towards the original meaning of the words in the Constitution. That's quite a shift and it can all be credited to Scalia's efforts to base judgments on the original sense of the words of the Constitution and laws. However, there was a difference between how Scalia and Stevens attempted to use originalism. Randy Barnett, whose work was cited in both the majority and Breyer's dissent yesterday, points to the differences between how the majority and minority approached the Second Amendment. Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning. Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago. Barnett, wrote The Lost Constitution: The Presumption of Liberty, in which he argued for a return to a jurisprudence based on the original meaning rather than the original intent of the Constitution so this contrast between Scalia and Stevens is custom-made for him. Barnett and many other commenters have noted, that once again, this decision shows that elections matter. For all that Obama has weaved and ducked on this issue, does anyone doubt that his nominations to the Supreme Court would be aligned with the minority in yesterday's decision rather than the majority? Labels: Supreme Court posted by Betsy Newmark permalink 7:22 AM 0 comments Comments: Dale Carpenter asserts that we're all originalists now judging by both the majority opinion and dissent in yesterday's Heller decision. It’s not surprising that Justice Scalia turned to the text and to originalist sources to determine the meaning of the words of the Second Amendment. And while the Stevens dissent makes noises about United States v. Miller as if it controls the outcome in favor of the constitutionality of heavy regulation of firearms, most of his dissent grapples with originalist questions. Stevens might not be a very accomplished originalist, or you might think he was wrong in this instance, but the mere fact that he and the three who joined him paid such obeisance to originalism on a matter of constitutional first impression confirms again its ascendance as a methodolgy. When I was at the Supreme Court Institute, we had the opportunity to meet with former clerks at the Supreme Court. My group met with Christopher Landau, who had clerked for both Scalia and Thomas. Someone asked him how he thought the Court had changed in the almost 20 years since he had clerked at the Court and his answer was that, due to Scalia's emphasis on original meaning, there is a difference in how lawyers write their briefs. He thought that pre-Scalia, briefs were often based on policy and now many more briefs make at least a gesture towards the original meaning of the words in the Constitution. That's quite a shift and it can all be credited to Scalia's efforts to base judgments on the original sense of the words of the Constitution and laws. However, there was a difference between how Scalia and Stevens attempted to use originalism. Randy Barnett, whose work was cited in both the majority and Breyer's dissent yesterday, points to the differences between how the majority and minority approached the Second Amendment. Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning. Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago. Barnett, wrote The Lost Constitution: The Presumption of Liberty, in which he argued for a return to a jurisprudence based on the original meaning rather than the original intent of the Constitution so this contrast between Scalia and Stevens is custom-made for him. Barnett and many other commenters have noted, that once again, this decision shows that elections matter. For all that Obama has weaved and ducked on this issue, does anyone doubt that his nominations to the Supreme Court would be aligned with the minority in yesterday's decision rather than the majority? Labels: Supreme Court posted by Betsy Newmark permalink 7:22 AM 0 comments Comments: Post a Comment