Monday, November 23, 2015

The Perils of Originalism: Notes from Zivotofsky II Primus // Balkinization

Originalism is a popular but problematic approach to constitutional law.  To decide what equal protection means  who counts as a founder?  If James Madison, Alexander Hamilton, and John Jay count, why not Abraham Lincoln, Jonathan Bingham,  Thaddeus Stevens, and Ulysses S. Grant?  And what about our own experience - when gay people and women asserted rights uncontemplated at the founding or post Civil War re-founding? 
Prof. Richard Primus points out another problem: the originalist judges - -like Antonin Scalia, are incapable of determining the original meaning ot constitutional provisions. gwc

Primus: "If a Supreme Court opinion by a leading originalist in as prominent a case as Zivotofsky II can open with an entire paragraph of historical fantasy, what hope is there for the practice of originalism in the courts more broadly? We should not think “Look, sometimes it won’t work out, but most of the time it’s fine.” We should think “Originalist interpretations are liable to be shot through with misunderstanding even under what seem like favorable conditions.”

Balkinization: The Perils of Originalism: Notes from Zivotofsky II

by Richard Primus

I tend to agree with Justice Scalia that the majority’s position inZivotofsky is unsound. But the picture of eighteenth-century British government that Justice Scalia offered to frame the point is fully make-believe. By the time of the Hanoverian Kings, Parliament was thoroughly involved in foreign policy. Indeed, the Parliamentary settlement that installed the Hanovers in the first place came with statutory limits on what these new Monarchs would be allowed to do in the domain of foreign affairs. Through the eighteenth century, Parliamentary Ministries approved and disapproved alliances, granted and refused foreign subsidies, and as a practical matter authorized war and peace, to say nothing of building the overseas Empire. George II had little interest in that last little endeavor, being much more focused on Europe, but the Crown’s disinterest didn’t matter much, because the Ministers in Parliament were driving. George III, who was more interested in the Empire than his grandfather had been, would have been shocked to learn that he had a free hand in foreign affairs, given his constant experience of having to deal with Parliament. To say nothing of the consternation that news of the King’s exclusive foreign-affairs power would have caused throughout the capitals of Europe, as governments wondered why they were spending so much money retaining London agents for the purpose of lobbying Parliament to make favorable foreign-affairs policy.

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