On the hypotheses that lie at the foundations of originalism

Harvard Journal of Law and Public Policy

Volumn 31, Issue 2, 2008, Pages 473-483

  Harrison, John ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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[No Author keywords available]

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EID: 46149103664     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (38)

1. ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 159-60 (1990).
2. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801 (1997).
3. One example involves an issue that is still with us today: whether Congress may designate its own officers, including the Speaker of the House and President Pro Tempore of the Senate, to act as President when both the President and Vice President are unavailable. As Currie explains, views on that question were strongly influenced by the Senators' and Representatives' views on Secretary of State Thomas Jefferson, who likely would have been first in line if the congressional officers were excluded. Id. at 139-44.
4. On January 31, 1865, the House joined the Senate in voting, with a two-thirds majority, to propose the Amendment to the States for ratification. MICHAEL VORENBERG, FINAL FREEDOM: THE CIVIL WAR, THE ABOLITION OF SLAVERY, AND THE THIRTEENTH AMENDMENT 205-07 (2001). Ratification followed promptly, and on December 18th, the Secretary of State issued a proclamation that the necessary three-fourths had ratified and the Amendment had become part of the Constitution. Id. at 233.
5. Id. at 234.
6. Id. at 234-36.
7. Id. at 234.
8. Id.
9. Id. at 233-39.
10. 1 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES, at ii (1953).
11. See, e.g., id. at 391.
12. Id. at 352-57
13. 2 CROSSKEY, supra note 10, at 1089-95.
14. See, e.g., id. at 1007.
15. 750 F.2d 970 (D.C. Cir. 1984) (en banc).
16. Id. at 971, 973.
17. Id. at 987, 993.
18. Id. at 973.
19. Id. at 971.
20. Id. at 975 n.8.
21. Id. at 987-92.
22. Id. at 993 (Bork, J., concurring).
23. Id. ("Any such rigid doctrinal framework is inadequate to resolve the sometimes contradictory claims of the libel laws and the freedom of the press.").
24. Id. at 997 ("The only solution to the problem libel actions pose would appear to be close judicial scrutiny to ensure that cases about types of speech and writing essential to a vigorous first amendment do not reach the jury. This requires a consideration of the totality of the circumstances that provide the context in which the statement occurs and which determine both its meaning and the extent to which making it actionable would burden freedom of speech or press. That, it must be confessed, is a balancing test and risks admitting into the law an element of judicial subjectivity. To that objection there are various answers. A balancing test is better than no protection at all." (citation and footnote omitted)). It is hard to miss Judge Bork's ironic glee in rejecting "old categories which, applied woodenly, do not address modern problems," id. at 995, and especially in clashing with then-Judge Scalia, who dissented. According to Judge Bork, Judge Scalia's dissent implies that the idea of evolving constitutional doctrine should be anathema to judges who adhere to a philosophy of judicial restraint. But most doctrine is merely the judge-made superstructure that implements basic constitutional principles. There is not at issue here the question of creating new constitutional rights or principles, a question which would divide members of this court along other lines than that of the division in this case. When there is a known principle to be explicated the evolution of doctrine is inevitable. Judges given stewardship of a constitutional provision - such as the first amendment - whose core is known but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. Id.
25. As Judge Bork explained: We know very little of the precise intentions of the framers and ratifiers of the speech and press clauses of the first amendment. But we do know that they gave into our keeping the value of preserving free expression and, in particular, the preservation of political expression, which is commonly conceded to be the value at the core of those clauses. Perhaps the framers did not envision libel actions as a major threat to that freedom. I may grant that, for the sake of the point to be made. But if, over time, the libel action becomes a threat to the central meaning of the first amendment, why should not judges adapt their doctrines? Why is it different to refine and evolve doctrine here, so long as one is faithful to the basic meaning of the amendment, than it is to adapt the fourth amendment to take account of electronic surveillance, the commerce clause to adjust to interstate motor carriage, or the first amendment to encompass the electronic media? I do not believe there is a difference. Id. at 996. The relevant change in circumstances was an increased threat to freedom of the press from large defamation awards: Instead, in the past few years a remarkable upsurge in libel actions, accompanied by a startling inflation of damage awards, has threatened to impose a self-censorship on the press which can as effectively inhibit debate and criticism as would overt governmental regulation that the first amendment most certainly would not permit. See [Anthony] Lewis, New York Times v. Sullivan Reconsidered: Time to Return to "The Central Meaning of the First Amendment," 83 Colum.L.Rev. 603 (1983). It is not merely the size of damage awards but an entire shift in the application of libel laws that raises problems for press freedom.
26. See [Rodney A.] Smolla, Let the Author Beware: The Rejuvenation of the American Law of Libel, 132 U.Pa.L.Rev. 1 (1983). Taking such matters into account is not, as one dissent suggests, to engage in sociological jurisprudence, at least not in any improper sense. Doing what I suggest here does not require courts to take account of social conditions or practical considerations to any greater extent than the Supreme Court has routinely done in such cases as Sullivan. Nor does analysis here even approach the degree to which the Supreme Court quite properly took such matters into account in Brown, 347 U.S. at 492-95." Id. at 996-97 (footnotes omitted).
27. Id. at 996 ("A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, I repeat, is to ensure that the powers and freedoms the framers specified are made effective in today's circumstances. The evolution of doctrine to accomplish that end contravenes no postulate of judicial restraint.").
28. It is not clear whether Bork understands the outcome state as a set of incentives concerning expression or as the actual production of expression. More likely it is the former.
29. See James W. Ely, Jr., "To Pursue Any Lawful Trade or Avocation": The Evolution of Unenumerated Economic Rights in the Nineteenth Century, 8 U. PA. J. CONST. L. 917, 932 (2006) (describing the importance of economic rights to the framers of the Fourteenth Amendment).
30. See Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).
31. See Grutter, 539 U.S. at 306 (approving use of racial considerations in law school admissions); Gratz, 539 at 276-80 (O'Connor, J., concurring).
32. 47 IND. L.J. 1 (1971). In the first paragraph of that article, Professor Bork foreshadowed the importance of the decision the Senate would make in 1987, and offered an explanation: Because of a lack of a theory of constitutional law, "courts are without effective criteria and, therefore we have come to expect that the nature of the Constitution will change, often quite dramatically, as the personnel of the Supreme Court changes." Id. at 1.
33. Id. at 2-4.
34. Id. at 4. ("If it does not have and rigorously adhere to a valid and consistent theory of majority and minority freedoms based upon the Constitution, judicial supremacy, given the axioms of our system, is, precisely to that extent, illegitimate.").
35. This is on display in the subtitle of a work published at the end of the decade in which Bork wrote and that remains profoundly influential today: JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
36. JAMES GLEICK, ISAAC NEWTON, at vi, 193 (2003).
37. Id.
38. Id.