The new originalism and the uses of history

Fordham Law Review

Volumn 82, Issue 2, 2013, Pages 641-719

  Balkin, Jack M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84893131473     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (228)

1. See, e.g., LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996);
2. Hans W. Baade, "Original Intent" in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 1001 (1991);
3. Randy E. Barnett, The Relevance of the Framers' Intent, 19 HARV. J. L. & PUB. POL'Y 403 (1996);
4. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B. U. L. REV. 204, 213-17 (1980);
5. Michael C. Dorf, A Nonoriginalist Perspective on the Lessons of History, 19 HARV. J. L. & PUB. POL'Y 351 (1996);
6. Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L. J. 1765 (1997)
7. [hereinafter Dorf', Integrating Normative and Descriptive Constitutional Theory];
8. Christopher L. Eisgruber, The Living Hand of the Past: History and ConstitutionalJustice, 65 FORDHAM L. REV. 1611 (1997);
9. Paul Finkelman, The Constitution and the Intentions of the Framers: The Limits of Historical Analysis, 50 U. PITT. L. REV. 349 (1989);
10. Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523 (1995);
11. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L. J. 1725 (1996);
12. Martin S. Flaherty, The Practice of Faith, 65 FORDHAM L. REV. 1565 (1997)
13. [hereinafter Flaherty, Practice of Faith];
14. Mitchell Gordon, Adjusting the Rear-View Mirror: Rethinking the Use of History in Supreme Court Jurisprudence, 89 MARQ. L. REV. 475 (2006);
15. Jamal Greene, The Case for Original Intent, 80 GEO. WASH. L. REV. 1683 (2012);
16. James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 TEX. L. REV. 1 (1986);
17. Laura Kalman, Border Patrol: Reflections on the Turn to History in Legal Scholarship, 66 FORDHAM L. REV. 87 (1997);
18. Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119;
19. Larry Kramer, Fidelity to History- and Through It, 65 FORDHAM L. REV. 1627 (1997);
20. Larry D. Kramer, When Lawyers Do History, 72 GEO. WASH. L. REV. 387 (2003);
21. Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997);
22. Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMMENT. 77 (1988);
23. David McGowan, Ethos in Law and History: Alexander Hamilton, The Federalist, and the Supreme Court, 85 MINN. L. REV. 755 (2001);
24. Buckner F. Melton, Jr., Clio at the Bar: A Guide to Historical Method for Legists and Jurists, 83 MINN. L. REV. 377 (1998);
25. Robert Post & Reva Siegel, Originalism As a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545 (2006);
26. H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659 (1987);
27. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985)
28. [hereinafter Powell, Original Understanding];
29. Jack N. Rakove, Fidelity Through History (or to It), 65 FORDHAM L. REV. 1587 (1997);
30. John Phillip Reid, Law and History, 27 LOY. L. A. L. REV. 193 (1993);
31. Neil M. Richards, Clio and the Court: A Reassessment of the Supreme Court's Uses of History, 13 J. L. & POL. 809 (1997);
32. Cass R. Sunstein, The Idea of a Usable Past, 95 COLUM. L. REV. 601 (1995);
33. Mark Tushnet, Heller and the New Originalism, 69 OHIO ST. L. J. 609 (2008);
34. Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-in-Law, 71 CHI.-KENT L. REV. 909, 918 (1996)
35. [hereinafter Tushnet, Interdisciplinary Legal Scholarship];
36. Mark Tushnet, The Concept of Tradition in Constitutional Historiography, 29 WM. & MARY L. REV. 93 (1987);
37. G. Edward White, The Arrival of History in Constitutional Scholarship, 88 VA. L. REV. 485 (2002);
38. William M. Wiecek, Clio As Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988);
39. Paul Horwitz, The Past, Tense: The History of Crisis- and the Crisis of History-in Constitutional Theory, 61 ALB. L. REV. 459 (1997) (reviewing Kalman, supra);
40. Joshua Stein, Note, Historians Before the Bench: Friends of the Court, Foes of Originalism, 25 YALE J. L. & HUMAN. 359 (2013).
41. JACK M. BALKIN, LIVING ORIGINALISM (2011).
42. Lawrence B. Solum, Originalism and Constitutional Construction, 82 FORDHAM L. REV. 453, 455-58 (2013) (explaining that the distinction between interpretation and construction is characteristic of the new originalism).
43. Jack M. Balkin, Must We Be Faithful to Original Meaning?, 7 JERUSALEM REV. LEGAL STUD. 57, 61 (2013).
44. See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 13-15 (2012) ("[T]he supposed distinction between interpretation and construction has never reflected the courts' actual usage.");
45. John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. REV. 751, 773 (2009) (rejecting the distinction between interpretation and construction and arguing that using original methods resolves almost every controversy). For a rebuttal to Scalia and Garner's historical claim, see Solum, supra note 3, at 483-88.
46. Justice Scalia has argued that this approach helps to constrain judges. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 863-64 (1989) (noting that "the main danger in judicial interpretation of the Constitution⋯ is that the judges will mistake their own predilections for the law", and that "[o]riginalism⋯ establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself). But many contemporary originalists do not emphasize judicial restraint as the primary justification for originalism.
47. See, e.g., Keith E. Whittington, The New Originalism, 2 GEO. J. L. & PUB. POL'Y 599, 608 (2004) ("The new originalism is less likely to emphasize a primary commitment to judicial restraint⋯. [and features] less emphasis on the capacity of originalism to limit the discretion of the judge.").
48. For examples of this kind of argument, see Balkin, supra note 2, at 55; Balkin, supra note 4, at 59; Randy E. Bamett, The Gravitational Force of Originalism, 82 FORDHAM L. REV. 411, 412 (2013) ("The New Originalism stands for the proposition that the meaning of a written constitution should remain the same until it's properly changed.").
49. E.g., Antonin Scalia, Response, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 129, 139-40 (Amy Guttman ed., 1997) (arguing for retaining nonoriginalist precedents as a "pragmatic exception" in the interests of stability).
50. Some originalists allow the practical meaning of some parts of the Constitution to change as a result of longstanding traditions, customs, and political conventions. See, e.g., Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH. L. REV. 1127, 1128 (1998) (arguing for originalism tempered by tradition and judicial restraint). They also treat these parts of the Constitution as raising questions of constitutional construction because they are interested in the meaning and practical application of tradition, custom, and convention. See generally id.
51. Jamal Greene has argued that originalist argument is a species of ethical argument. See Jamal Greene, On the Origins of Originalism, 88 TEX. L. REV. 1, 64, 82-88 (2009); Greene, supra note 1, at 1697; see also McGowan, supra note 1, at 757-59, 825-35 (arguing that regardless of theoretical commitments, the actual practices of original meaning jurisprudence are often appeals to ethos);
52. Robert Post, Theories of Constitutional Interpretation, 30 REPRESENTATIONS 13, 29 (1990) (explaining that the claim that the Framers speak for present generations "is neither more nor less than a characterization of the national ethos");
53. Richard Primus, The Functions of Ethical Originalism, 88 TEX. L. REV. SEE ALSO 79, 80 (2009) ("[T]he deeper power of originalist argument sounds in the romance of national identity."). Michael Dorf has argued that originalist argument appeals either to political traditions (which he calls "ancestral originalism") or honored authorities (which he calls "heroic originalism").
54. Dorf, Integrating Normative and Descriptive Constitutional Theory, supra note 1, at 1770, 1800-05.
55. See, e.g., Robert H. Bork, The Constitution, Original Intent, and Economic Rights, 23 SAN DIEGO L. REV. 823, 823 (1986) ("I wish to demonstrate that original intent is the only legitimate basis for constitutional decisionmaking."); Scalia, supra note 13, at 854 ("The principal theoretical defect of nonoriginalism⋯ is its incompatibility with the very principle that legitimizes judicial review of constitutionality.").
56. See Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1737-41, 1750 (2010) (observing that one can hardly understand the constitutional legacy of the twentieth century and the enormous changes it produced from studying the text of the amendments passed during that period).
57. 554 U. S. 570 (2008).
58. Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145, 173-74 (2008) (criticizing Justice Scalia's opinion for anachronism).
59. See, e.g., AKHIL REED AMAR, AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY (2012);
60. LOGAN BEIRNE, BLOOD OF TYRANTS: GEORGE WASHINGTON & THE FORGING OF THE PRESIDENCY (2013);
61. STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008);
62. Saikrishna Prakash, A Two-Front War, 93 CORNELL L. REV. 197, 212 (2007) ("Consider the Washington Administration, the most crucial administration because it was closest in time to the Constitution's creation and because its views best reflect the Constitution's original meaning.");
63. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L. J. 231, 295-96 (2001) (using examples from the Washington Administration to explain the Constitution's original meaning).
64. See STEPHEN M. GRIFFIN, LONG WARS AND THE CONSTITUTION (2013).
65. PHILIP C. BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 26 (1982)
66. [hereinafter BOBBITT, CONSTITUTIONAL FATE];
67. see also PHILIP C BOBBITT, CONSTITUTIONAL INTERPRETATION 13 (1991)
68. [hereinafter BOBBITT, CONSTITUTIONAL INTERPRETATION] ("A[] historical modality may be attributed to constitutional arguments that claim that the framers and ratifiers [of a constitutional provision] intended, or did not intend⋯."); id. ("Historical, or 'originalist' approaches to construing the text⋯ are distinctive in their reference back to what a particular provision is thought to have meant to its ratifiers."). Similarly, Richard Fallon's list of constitutional arguments refers to "[arguments of historical intent", which he identified with "the intent of the framers."
69. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1244, 1254 (1987). Both Bobbitt and Fallon wrote at a time when the focus of originalist theory was shifting from original intention and understanding to original meaning.
70. BOBBITT, CONSTITUTIONAL FATE, supra note 35, at 7-8;
71. BOBBITT, CONSTITUTIONAL INTERPRETATION, supra note 35, at 12-13.
72. BOBBITT, CONSTITUTIONAL INTERPRETATION, supra note 35, at 12 ("[Constitutional modalities [are] the ways in which legal propositions are characterized as true from a constitutional point of view.").
73. James Madison, U. S. Representative, Speech on the Bank Bill (Feb. 2, 1791), in LIBERTY AND ORDER: THE FIRST AMERICAN PARTY STRUGGLE 73 (Lance Banning ed., 2004), available at http://oll.libertyfund.org/?option=com- staticxt&staticfile=show.php%3Ftitle=875&chapter=63865&layout= html&Itemid=27.
74. The classic discussion of structural argument is CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).
75. BAUW, supra note 2, at 17, 46, 89, 129, 205, 256-57, 333, 341-42 (explaining that interpreters should use all of the traditional modalities of constitutional argument); Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. ILL. L. REV. 815, 824 ("In Living Originalism, I argue that lawyers can and should use all of the traditional resources of lawyers both in ascertaining original meaning and in creating constitutional constructions that implement original meaning."). Lawyers might use some of the same tools to resolve ambiguities about original meaning when linguistic evidence runs out; these are also questions of constitutional construction. See Solum, supra note 3, at 481 (arguing that all of the modalities are relevant to constitutional construction, and that historical, textual, and structural modalities are also especially relevant to constitutional interpretation).
76. See Balkin, supra note 2, at 142, 261-63 (distinguishing between structural arguments and arguments from original meaning and original intention); cf. Martin S. Flaherty, Post-originalism, 68 U. CHI. L. REV. 1089, 1107 (2001) (noting a distinctive form of argument that looks to what succeeds or fails historically as opposed to what the original designers expected would happen). Ironically, as Flaherty points out, some of the best explanations for why structural argument is not originalist come from the Founding period itself. Id, at 1107-08.
77. See Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 789 (1999) (arguing that intratextual argument is not an appeal to original meaning and is "distinct from standard forms of argument based on history and original intent").
78. Cf. William N. Eskridge, The New Textualism and Normative Canons, 113 COLUM. L. REV. 531, 542-43 (2013) (reviewing Scalia & Garner, supra note 10) ("[C]anons 'valid' in one era may become 'invalid' in the next."); id. at 538, 543 (noting that Congress's assumptions about what canons are valid may change over time and differ from those of judges).
79. ENCYCLOPEDIA OF RHETORIC AND COMPOSITION: COMMUNICATION FROM ANCIENT TIMES TO THE INFORMATION AGE 223 (Theresa Enos ed., 1996) ("[E]nthymeme generally refers to claims in arguments that are supported by probable premises assumed to be shared by the audience."). Laura Kalman has noted how lawyers use history as an enthymeme and has criticized the ways that this leads to unreflective practice: The enthymeme here seems designed to confer authority and be dispositive-to foreclose choice and surrender authority to the past. In the context of contemporary constitutional law, it may be a move from rhetorical to logical syllogism, and perhaps from rhetoric to authoritarianism. It replaces interpreter with author in a vain attempt to invest authority in author, rather than in interpreter, and to bypass persuasion and interpretation. Kalman, supra note 1, at 114. This Article responds to Kalman's complaint by showing the many different kinds of suppressed premises in historical argument.
80. For arguments that legal uses of history may involve different criteria than those of professional historians, see Sunstein, supra note 1, at 605 ("[T]he historically-minded lawyer need not be thought to be doing a second-rate or debased version of what the professional historians do well, but is working in a quite different tradition with overlapping but distinct criteria."), and Tushnet, Interdisciplinary Legal Scholarship, supra note 1, at 934-35 ("Lawoffice history is a legal practice, not a historical one. The criteria for evaluating it, for determining what is a successful performance, must be drawn from legal practice rather than from historical practice.").
81. See Flaherty, The Practice of Faith, supra note 1, at 1575-80 (arguing that lawyers should strive to ensure that their historical work is consistent with the best available professional historical scholarship of the day, even though the interpretations of professional historians may change over time).
82. 343 U. S. 579 (1952).
83. See, e.g., Jack M. Balkin & Sanford Levinson, Constitutional Dictatorship: Its Dangers and Its Design, 94 MINN. L. REV. 1789, 1798, 1800-02, 1844, 1863, 1865 (2009) (drawing structural lessons from the design of the Roman dictatorship).
84. See, e.g., Bowen v. Gilliard, 483 U. S. 587, 601-02 (1987);
85. Cleburne v. Cleburne Living Or., Inc., 473 U. S. 432, 441 (1985);
86. Mass. Bd. of Ret. V. Murgia, 427 U. S. 307, 313-14 (1976) (per curiam);
87. Frontiero v. Richardson, 411 U. S. 677, 683-84 (1973) (plurality opinion).
88. 130 S. Ct. 3020 (2010).
89. 554 U. S. 570 (2008).
90. McDonald, 130 S. Ct. at 3027.
91. Id. at 3071-77. In general, Justice Thomas describes himself as an original meaning originalist, but his account of original meaning is thick rather than thin, because he often treats original expected applications as part of original meaning. See, e.g., Morse v. Frederick, 551 U. S. 393, 410-11 (2007) (Thomas, J., concurring) ("In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.");
92. Mclntyre v. Ohio Elections Comm'n, 514 U. S. 334, 358-59 (1995) (Thomas, J., concurring) ("We should seek the original understanding when we interpret the Speech and Press Clauses, just as we do when we read the Religion Clauses of the First Amendment.").
93. McDonald, 130 S. Ct. at 3038-42 (plurality opinion).
94. Id. (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)).
95. McDonald, 130 S. Ct. at 3036
96. (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)).
97. see also McDonald, 130 S. Ct. at 3033 n. 9.
98. Cf. Gerard N. Magliocca, Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?, 94 MINN. L. REV. 102, 124 (2009) ("[Enthusiasm for extending the substantive protections of the Bill of Rights to the states evaporated during the 1890s because of the sharp increase in agrarian radicalism and labor protests.").
99. See David B. Kopel & Clayton Cramer, State Court Standards of Review for the Right To Keep and Bear Arms, 50 SANTA CLARA L. REV. 1113, 1157 (2010) ("In the twentieth century, gun control ceased to be a peculiar Southern institution. Fear of labor unrest and massive waves of immigrants, as well as the emigration of Southern blacks, brought gun control north. Many gun control laws were upheld, and many others were not even constitutionally questioned." (footnote omitted)).
100. See, e.g., Reva B. Siegel, Dead or Alive: Originalism As Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 207-12 (2008) (noting that the modern movement for gun rights began in the 1970s).
101. McDonald, 130 S. Ct. at 3062 (Thomas, J., concurring) ("This Court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption⋯.").
102. 83 U. S. (16 Wall.) 36 (1872).
103. 92 U. S. 542 (1875).
104. McDonald, 130 S. Ct. at 3060-63.
105. Id. at 131 ("In search of some adequate guiding principle upon which to support their libertarian interventionism in the social order, the reformist activists on the Court initiated a new era of historically oriented adjudication. "); see also BOBBITT, CONSTITUTIONAL FATE, supra note 35, at 56 (explaining that Justice Hugo Black's turn to text and history allowed him "to restore to judicial review the popular perception of legitimacy which the New Deal crisis had jeopardized").
106. See Amar, supra note 33, at 198 (explaining that the reason why the Warren Court overturned so many precedents is that it was returning to "the deepest ideals of the written Constitution"). Justice Black, the most famous liberal originalist, exemplified liberals' turn to history both before and during the Warren Court era; indeed, in Bruce Ackerman's words, he is "the original originalist on the modern Supreme Court." Ackerman, supra note 29, at 1799; see also Akhil Reed Amar, Hugo Black and the Hall of Fame, 53 ALA. L. REV. 1221, 1242 (2002) (arguing that Justice Black was the true intellectual leader of the Warren Court).
107. See FRANK B. CROSS, THE FAILED PROMISE OF ORIGINALISM 136-43 (2013) (collecting statistics). Cross notes, for example, that the Warren Court used The Federalist "more than any previous Court [in] American history", although usage increased even further in the Burger and Rehnquist Courts' years. Id. at 136; see also id. at 92-96 (describing use of adoption history in Warren Court school prayer, reapportionment, and criminal procedure opinions). The regular and frequent use of adoption history in Supreme Court opinions began with the Warren Court, not the conservative courts that succeeded it. Id. at 96.
108. See Saul Cornell, Heller, New Originalism, and Law Office History: "Meet the New Boss, Same As the Old Boss", 56 UCLA L. REV. 1095, 1098 (2009)
109. (arguing that District of Columbia v. Heller "is not the triumph of a new methodology, but really just the latest incarnation of the old law office history-a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion" (footnote omitted)); Kalman, supra note 1, at 94-95 (describing historians' criticisms of Reagan-era originalism).
110. 274 U. S. 357 (1927).
111. See BOBBITT, CONSTITUTIONAL INTERPRETATION, supra note 35, at 20 ("This form of argument denotes an appeal to those elements of the American cultural ethos that are reflected in the [U. S.] Constitution. ").
112. Id.; see also BOBBITT, CONSTITUTIONAL FATE, supra, note 35, at 162 ("Ethical arguments arise from the ethos of limited government and the seam where powers end and rights begin. ").
113. Philip Bobbitt, Reflections Inspired by My Critics, 72 TEX. L. REV. 1869, 1937 (1994) ("I do not in fact think that the commitment to limited government is the only ethical commitment of the Constitution. "). His original formula was probably influenced by the context in which Constitutional Fate was written: Bobbitt used ethical argument to demonstrate the right to abortion recognized in Roe v. Wade.
114. See BOBBITT, CONSTITUTIONAL FATE, supra note 35, at 225-38 (arguing that the result in Roe follows from the ethical principle that a government of limited powers may not coerce intimate acts, which include carrying a child within one's body and giving birth).
115. BOBBITT, CONSTITUTIONAL FATE, supra note 35, at 144.
116. See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 45-50, 106-10 (2005) (arguing that the Constitution and its enumerated powers flowed from geostrategic imperatives for a stronger centralized government with ample powers to protect liberty and security);
117. MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT: ORIGINS OF THE U. S. CONSTITUTION AND THE MAKING OF THE AMERICAN STATE (2003);
118. RAY RAPHAEL, CONSTITUTIONAL MYTHS: WHAT WE GET WRONG AND HOW TO GET IT RIGHT 114-23 (2013).
119. Cf. Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J, dissenting) ("The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.").
120. See JAMES MORTON SMITH, FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (1956) (describing the Federalist campaign for the Alien and Sedition Acts and their subsequent enforcement by Federalist judges).
121. See Whitney v. California, 274 U. S. 357, 375 n. 2 (1927)
122. (quoting Letter from Thomas Jefferson to Elijah Boardman (July 3, 1801)
123. and Thomas Jefferson, First Inaugural Address (March 4, 1801)).
124. See, e.g., Michael P. Downey, Note, The Jeffersonian Myth in Supreme Court Sedition Jurisprudence, 76 WASH. U. L. Q. 683, 684 (1998) ("Jefferson's myth has enshrined him as a great advocate of individual liberties, but [in] reality [Jefferson] seems to have been a more pragmatic, and consequently a more repressive, figure." (footnote omitted)).
125. See, e.g., Gitlow v. New York, 268 U. S. 652, 666-68 (1925) (rejecting First Amendment claims);
126. Schenck v. United States, 249 U. S. 47, 52 (1919);
127. Abrams v. United States, 250 U. S. 616, 628 (1919) (Holmes, J., dissenting).
128. In Whitney itself, the Court upheld Anna Whitney's conviction under California's Criminal Syndicalism Act for being a member of the Communist Labor Party. Whitney, 274 U. S. at 366-71. Despite his famous argument, Justice Brandeis's opinion is technically a concurrence because he believed that Whitney did not properly raise her federal constitutional objections in the lower courts. Id. at 380 (Brandeis, J., concurring).
129. JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 44, 55-56 (2011) ("An appeal to the past [by social movements]⋯ is a way of convincing others that we should be true to a larger set of common commitments to liberty, equality, and justice that we have compromised or forgotten. ").
130. Id. at 44 ("Members of the political community [use narrative arguments] in order to make sense of current controversies and the proper direction of political/legal change."); Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297, 342-43 (2001) (arguing that history supplies both a sense of collective identity and "the field of collective experience through which we make pragmatic judgments about how to realize constitutional commitments and values in practice").
131. See Balkin, supra note 111, at 25-32, 51-60 (explaining and defending the practice of narrative justification); Akhil Reed Amar, The Supreme Court 1999 Term: Foreword: The Document and the Doctrine, 114 HARV L. REV. 26, 29 (2000) (arguing that done properly, textual argument requires understanding the meaning of key events in American history, and "good historical narrative, in both a broad (epic-events) sense and a narrow (drafting/ratification) sense, should inform good textual analysis").
132. Cf. Gordon S. Wood, No Thanks for the Memories, N. Y. REV. BOOKS, Jan. 13, 2011, at 40, available at http://www.nybooks.com/articles/archives/2011/jan/ 13/no-thanksmemories
133. (reviewing JILL LEPORE, THE WHITES OF THEIR EYES: THE TEA PARTY'S REVOLUTION AND THE BATTLE OVER AMERICAN HISTORY (2010)) (explaining that social mobilizations like the Tea Party find it important to articulate the normative lessons of history, even if such groups inevitably understand history in simplified ways, and remarking that "[m]emory is as important to our society as the history written by academics").
134. See DAVID LEEMING, THE OXFORD COMPANION TO WORLD MYTHOLOGY 88 (2005) (noting that often the culture hero "establishes the community's institutions and traditions").
135. LIHUI YANG, DEMING AN & JESSICA ANDERSON TURNER, HANDBOOK OF CHINESE MYTHOLOGY 120-21 (2005) (describing the many inventions attributed to Emperor Fuxi).
136. MAKE OERGEL, THE RETURN OF KING ARTHUR AND THE NIBELUNGEN: NATIONAL MYTH IN NINETEENTH-CENTURY ENGLISH AND GERMAN LITERATURE 200 (1997) (noting King Arthur's use as a symbol of Englishness and chivalry during the nineteenth century).
137. See, e.g., Barack Obama, U. S. Senator, A More Perfect Union (Mar. 18, 2008), available at http://my.barackobama.com/page/content/hisownwords/ ("The document [the Framers] produced was⋯ ultimately unfinished. It was stained by this nation's original sin of slavery, a question that divided the colonies and brought the convention to a stalemate until the founders chose to allow the slave trade to continue for at least twenty more years, and to leave any final resolution to future generations.").
138. J. M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 967 (1998) (using an 1860 speech by Douglass as an example of constitutional interpretation by members of social movements).
139. Michael Dorf calls this style of argument "heroic originalism." Dorf, Integrating Normative and Descriptive Constitutional Theory, supra note 1, at 1803. The idea of honored authorities, however, applies beyond adoption history. See id. at 1811 ("If we appeal to the Framers because we believe that their unusual place in history as well as their wisdom make their views especially authoritative, should we not also consult the views of other historically well-situated, wise actors?").
140. Cf. Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 3, 4-14 (Daniel Kahneman et al. eds., 1982);
141. Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES, supra, at 163-65 (noting heuristics that confuse salience with representativeness).
142. SACVAN BERCOVTTCH, THE AMERICAN JEREMIAD 7 (1978) (contrasting the European jeremiad, with its "lament over the ways of the world" and the sins of the people, with the American jeremiad, which featured a call for action and renewal);
143. Jack M. Balkin, The Distribution of Political Faith, 71 MD. L. REV. 1144, 1152-54 (2012) (noting the use of the jeremiad in constitutional and political argument, and identifying the argument of Constitutional Redemption with "the jeremiad of renewal");
144. Timothy P. O'Neill, Constitutional Argument As Jeremiad, 45 VAL. U. L. REV. 33, 40-41 (2010) (arguing that American "constitutional argument has absorbed th[e] structure of the American jeremiad").
145. Vasavan Kevasan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L. J. 1113, 1152 (2003) ("The Federalists won, whereas the Anti-Federalists did not.").
146. 198 U. S. 45 (1905).
147. 60 U. S. (19 How.) 393 (1856).
148. 163 U. S. 537 (1896).
149. 323 U. S. 214 (1944);
150. See, e.g., Balkin, supra note 111, at 188 (describing use of canonical and anticanonical cases to bestow and withhold authority); John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L. J. 920, 939-40, 944 (1973) (coining the term "Lochnering" and comparing Roe to Lochner).
151. 347 U. S. 483 (1954).
152. 551 U. S. 701 (2007) (plurality opinion).
153. Id. at 867 (Breyer, J., dissenting) ("The lesson of history⋯ is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950's to Louisville and Seattle in the modem day."); id. at 799 (Stevens, J., dissenting) ("The Chief Justice rewrites the history of one of this Court's most important decisions."); id. at 803 ("The Court has changed significantly since it decided School Comm[ittee] of Boston [v. Board of Education, 389 U. S. 572 (1968),] in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision. ").
154. See Christopher W. Schmidt, Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203 (2008)
155. (discussing the controversy over the uses of Brown in Parents Involved and the ways that colorblindness was invoked in the Brown litigation).
156. Compare Parents Involved, 551 U. S. at 746-47 (plurality opinion) (declaring that Brown is about prohibiting differential treatment of students because of their race), and id. at 772 (Thomas, J., concurring) (arguing that Brown supports the view of a colorblind Constitution), with id. at 803, 804 (Breyer, J., dissenting) (arguing that Brown is about the achievement of an integrated society and "setfting] the Nation on a path toward public school integration. "). Justice Kennedy's concurrence also argues that Brown reflects a national commitment to an integrated society. See id. at 797 (Kennedy, J., concurring in part and concurring in the judgment) ("This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. ").
157. This is one purpose of what Michael Dorf calls "ancestral originalism." Dorf, Integrating Normative and Descriptive Constitutional Theory, supra note 1, at 1770;
158. see also Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947, 968 (2002) ("By reconstructing the debates that link the Fourteenth and Nineteenth Amendments, we can identify the institutions, practices and understandings that have played a key role in controversies about women's status in our constitutional order.").
159. Generally speaking, theoretical authorities give us reasons to believe something, while practical authorities give us reasons to do things. JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION: ON THE THEORY OF LAW AND PRACTICAL REASON (2009);
160. JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY (1979). The originalist theory of authority treats Framers and adopters as possessing both theoretical authority about the meaning of the Constitution and practical authority about how we should apply it.
161. See, e.g., Michael Kent Curtis, John A. Bingham and the Story of American Liberty: The Lost Cause Meets the "Lost Clause", 36 AKRON L. REV. 617, 620 (2003) ("[F]or years our national story largely ignored our second group of framers who gave the nation the new birth of freedom in the post-Civil War amendments.");
162. Tom Donnelly, Our Forgotten Founders: Reconstruction, Public Education, and Constitutional Heroism, 58 CLEV. ST. L. REV. 115 (2010) (noting lack of attention to Reconstruction-era founders in public education).
163. See DAVID W. BLIGHT, RACE AND REUNION: THE CIVIL WAR IN AMERICAN MEMORY 2 (2009) (describing the "story of how the forces of reconciliation overwhelmed the emancipationist vision in the national culture, how the inexorable drive for reunion both used and trumped race");
164. PAMELA BRANDWEIN, RECONSTRUCTING RECONSTRUCTION: THE SUPREME COURT AND THE PRODUCTION OF HISTORICAL TRUTH 61-68 (1999) (noting how Supreme Court opinions since the Civil War have portrayed Reconstruction and downplayed its egalitarian and transformative aspects);
165. Robert Meister, Forgiving and Forgetting: Lincoln and the Politics of National Recovery, in HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG TO BOSNIA 135, 163-64 (Carla Hesse & Robert Post eds., 1999);
166. Norman W. Spaulding, Constitution As Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory, 103 COLUM. L. REV. 1992, 2033 (2003) ("Respect for state sovereignty (and the twin theory that the War was fundamentally about preserving the Union) thus became a powerful, publicly acceptable, and legally authoritative framework for expressing the rather perverse desire to abandon the principles of equality implicated in the War for the sake of reconciliation with southern whites.").
167. See ELIZABETH JELIN, STATE REPRESSION AND THE LABORS OF MEMORY 33-34 (2003) ("[MJemory entrepreneurs⋯ seek social recognition and political legitimacy of one (their own) interpretation or narrative of the past." (internal quotation marks omitted));
168. cf. Gary Alan Fine, Reputational Entrepreneurs and the Memory of Incompetence: Melting Supporters, Partisan Warriors, and Images of President Harding, 101 AM. J. Soc. 1159, 1159 (1996) ("Reputational entrepreneurs attempt to control the memory of historical figures through motivation, narrative facility, and institutional placement.").
169. Consider, for example, Madison's statement in The Federalist No. 47, "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." THE FEDERALIST No. 47, at 293 (James Madison) (Gary Wills ed., 2003). A lawyer might quote this passage to criticize a particular development in the administrative state or in government surveillance practices, even though (1) the principle applies far more generally, and (2) Madison would not have comprehended the situation-much less the modem administrative and national security state-in his 1788 essay. By treating the statements of the Framers as general principles, we allow ourselves to wrench them out of their historical contexts and apply them to contemporary situations.
170. For a pronounced example of how original meaning trumps tradition, see Noel Canning v. NLRB, 705 F.3d 490, 502-03 (D. C. Cir. 2013)
171. cert, granted, 133 S. Ct. 2861 (2013). In Noel Canning, the D. C. Circuit jettisoned longstanding presidential appointment practices (which had existed since 1921 and 1823, respectively) on the authority of the original public meaning in 1787. See id. at 502 ("[W]e conclude that practice of a more recent vintage is less compelling than historical practice dating back to the era of the Framers.").
172. See, e.g., Baze v. Rees, 553 U. S. 35, 97 (2008) (Thomas, J., concurring) (consulting a dictionary as to the meaning of the word "cruel" in the Cruel and Unusual Punishments Clause);
173. Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L. REV. 847, 856-65 (2003) (examining every use of the term "commerce" in the Pennsylvania Gazette that appeared from 1728 to 1800).
174. See, e.g., Morse v. Frederick, 551 U. S. 393, 410-11 (2007) (Thomas, J., concurring).
175. See Jack M. Balkin, "Wrong the Day It Was Decided": Lochner and Constitutional Historicism, 85 B. U. L. REV. 677, 681 (2005) ("Anti-canonical cases serve as examples of how the Constitution should not be interpreted and how judges should not behave."); Balkin & Levinson, supra note 119, at 1018-19 (explaining that the anticanon consists of "cases that any theory worth its salt must show are wrongly decided" and which help normalize belief about law);
176. Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 384 (2011) (explaining that anticanonical cases are a device of ethical argument because they "symbolize a set of generalized ethical propositions that we [as a nation] have collectively renounced.");
177. Richard A. Primus, Canon, Anti-canon, and Judicial Dissent, 48 DUKE L. J. 243, 245 (1998) (explaining that the anticanon consists of "the set of texts that are important but normatively disapproved").
178. See Brest, supra note 1, at 213-17 (noting difficulties that the Framers themselves did not recognize intentionalism as a valid form of argument; that there may not be a original intention or understanding on a wide range of certain questions, that intentions and understandings may have differed among the relevant adopters, that intentions and understandings may be indeterminate, or that they cannot be made determinate "unless those intentions are understood at a level of generality too high to give practical guidance"); Greene, supra note 1, at 1687-88 (citing Randy E. Bamett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 611-12, 620 (1999));
179. Powell, Original Understanding, supra note 1, at 886-88;
180. see also Baade, supra note 1 (noting that general acceptance of arguments from intention appear well after the Founding period); Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Cm. L. REV. 519, 585-86 (2003) (noting that a theory of original understanding "has trouble handling disagreements among the ratifiers about the meaning of the Constitution⋯. [I]t is hard enough to identify consensus interpretations within a single state's convention. The difficulties are only magnified when one tries to identify consensus interpretations across different states" that ratified at different times in the debate).
181. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW, supra note 17, at 38.
182. See id. at 1691 ("From 1986 to 2002, according to Professor Melvyn Durchslag, the Supreme Court referenced The Federalist in forty-two percent more cases (ninety-eight cases) than during the preceding sixteen years, with Justice Scalia writing nearly one-fifth of those opinions." (citing Melvyn R. Durchslag, The Supreme Court and the Federalist Papers: Is There Less Here Than Meets the Eye?, 14 WM. & MARY BILL RTS. J. 243, 295, 297 (2005)));
183. id. ("The Federalist was cited more often in the nineteen years from 1980 to 1998 than in the eighty previous years combined." (citing Ira C. Lupu, Time, the Supreme Court, and The Federalist, 66 GEO. WASH. L. REV. 1324, 1328 (1998))); id. ("Justice Scalia cited to the Convention debates in eight Supreme Court opinions from 1986 to 2009, and Justice Thomas did so in seven opinions from 1991 to 2009. For each Justice, that number of citations is the highest of any member of the Court during that Justice's tenure."
184. (citing Louis J. Sirico, Jr., The Supreme Court and the Constitutional Convention, 27 J. L. & POL. 63, 70-71 (2011)));
185. see also id. ("The Federalist and Farrand's Records are the two most significant sources of original understanding in our constitutional tradition. The Supreme Court⋯ has referenced The Federalist in 236 opinions from 1965 to 2005 alone." (citing Pamela C. Corley, Robert M. Howard & David C. Nixon, The Supreme Court and Opinion Content: The Use of the Federalist Papers, 58 POL. RES. Q. 329, 330 (2005))).
186. See Raphael, supra note 104, at 114-23 (noting that Alexander Hamilton's essays probably did not reflect his own views on a number of subjects). Madison, who had strongly opposed the compromise that gave the small states equal votes in the Senate, was nevertheless required to defend it in The Federalist No. 62. Madison had wanted a stronger national government than the convention ultimately produced, and he had repeatedly pushed for a national power to veto all state legislation. He even expressed to Jefferson his fears that the new government might fail without the powers he sought for it. Id. at 84-90; Letter from James Madison to Thomas Jefferson, October 24, 1787, in 1 THE FOUNDERS' CONSTITUTION, ch. 17 document 22 (Philip B. Kurland & Ralph Lerner eds., 2000), available at http://press-pubs.uchicago.edu/founders/documents/vlchl7s22.html. Nevertheless, in public, Madison lauded the careful balance of federal and state powers in the new Constitution and emphasized the states' retention of sovereignty in The Federalist No. 39 and The Federalist No. 45. Raphael, supra note 104, at 89-91.
187. See Raphael, supra note 104, at 112 (noting that by the time New York voted, New Hampshire and Virginia had already ratified). Moreover, "[fjollowing The Federalist No. 21, only one of the remaining sixty-four essays appeared in any of the state's papers north of the city." Id. at 275 n. 23; see also John P. Kaminski, New York: The Reluctant Pillar, in THE RELUCTANT PILLAR: NEW YORK AND THE ADOPTION OF THE FEDERAL CONSTITUTION 71-72 (Stephen L. Schechter ed., 1985) ("Despite the significant place The Federalist has assumed in American political thought, its impact on New York's reception of the Constitution was negligible.").
188. See Greene, supra note 1, at 1702 ("[O]riginal intent as such, invoked for its inherent authority value, has been a significant part of constitutional practice since the beginning of the republic and remains significant today."); Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. REV. 703, 704 (2009) ("The idea that judicial interpretation of the Constitution should be governed by the real subjective intentions of the human beings who established it as governing law was, for a long time, so natural as to require no name.").
189. Greene, supra note 1, at 1696-97 (noting that originalist arguments "are authoritative not because they specify the semantic meaning of a text, but because they reflect a set of values that are offered by proponents as uniquely or especially constitutive of American identity"); McGowan, supra note 1, at 757-59, 825-35 (noting that in practice original meaning arguments
190. The recently created Founders Online website, part of the National Archives, includes the complete papers of these six figures. FOUNDERS ONLINE, http://founders.archives.gov/ (last visited Oct. 21, 2013).
191. See, e.g., Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271, 273 (2005) (arguing for "a strong theory of precedent in constitutional law" even when it might conflict with originalism because "it would promote judicial restraint.");
192. Henry Paul Monaghan, Supremacy Clause Textualism, 110 COLUM. L. REV. 731, 794 (2010) ("Unless we are prepared to condemn our existing constitutional practice as illegitimate, the propriety of other modes of argument besides originalism, particularly those based upon precedent, must be acknowledged."); Scalia, supra note 13, at 861 ("[A]lmost every originalist would adulterate [the theory] with the doctrine of stare decisis."); Scalia, supra note 17, at 139-40 (defending use of nonoriginalist precedents as a "pragmatic exception" in the interests of stability);
193. cf. Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's "Moral Reading" of the Constitution, 65 FORDHAM L. REV. 1269, 1292 (1997) (noting the roles of text, original understanding, the presumption of constitutionality, tradition, and precedent as appropriate constraints on judicial decisionmaking that produce humility). Other originalists, by contrast, argue that original meaning should generally control. See, e.g., Amar, supra note 32, at 157-62 (arguing that "a proper consideration, consistent with the Constitution's general structure of coordinate branches, should not treat the Supreme Court's past constitutional errors as categorically different from the past constitutional errors of other branches"; nevertheless, liberty-expanding precedents that are incorrect when decided should survive when there has been popular ratification);
194. Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J. L. & PUB. POL'Y 23, 24 (1994) ("[T]he practice of following precedent is not merely nonobligatory or a bad idea; it is affirmatively inconsistent with the federal Constitution. ");
195. Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289, 291 (2005) ("Stare decisis not only impairs or corrupts proper constitutional interpretation. [It] is unconstitutional, precisely to the extent that it yields deviations from the correct interpretation of the Constitution!").
196. See, e.g., Michael H. V. Gerald D., 491 U. S. 110, 127 n. 6 (1989) (Scalia, J.) (noting that traditions can be described at various levels of generality and arguing that judges must "adopt the most specific tradition as the point of reference" in order to avoid "arbitrary decisionmaking");
197. J. M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 CARDOZO L. REV. 1613, 1615 (1990) (noting that traditions can be characterized multiply, are constantly in the process of change, and may feature tensions or even inconsistencies when viewed at different levels of generality);
198. Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1059 (1990) (criticizing Scalia's test and arguing that "judges trained in the method of the common law can generalize from prior cases without merely imposing their own values.").
199. See, e.g., David A. Strauss, Can Originalism Be Saved?, 92 B. U. L. REV. 1161, 1163 (2012) ("If we are allowed to change the level of generality at which we characterize the original understandings, then originalism can justify anything."); Tribe & Dorf, supra note 183, at 1063 ("Whose intent matters and at what level of generality? No judge can answer this question without reference to a value-laden, extra-textual political theory.").
200. Id. at 28-29, 40 n. 77; see also Richard A. Primus, When Should Original Meanings Matter?, 107 MICH. L. REV. 165, 209 (2008) (arguing that recent amendments should be construed according to original understandings out of "respect for democratic decisionmaking").
201. Ward Farnsworth, Women Under Reconstruction: The Congressional Understanding, 94 NW. U. L. REV. 1229, 1230 (2000) ("The [Fourteenth] Amendment was understood not to disturb the prevailing regime of state laws imposing very substantial legal disabilities on women, particularly married women. ").
202. See, e.g., United States v. Virginia, 518 U. S. 515, 567 (1996) (Scalia, J., dissenting) ("[T]o counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change.").
203. See, e.g., Lawrence v. Texas, 539 U. S. 558, 605 (2003) (Thomas, J., dissenting) (describing the Texas law criminalizing same-sex sodomy as "uncommonly silly" and noting that he would vote against it if he were a legislator, but arguing that the right to privacy has no basis in the Constitution).
204. 312 U. S. 100 (1941).
205. 317 U. S. 111 (1942).
206. 132 S. Ct. 2566 (2012).
207. Id.; see also JOSH BLACKMAN, UNPRECEDENTED: THE CONSTITUTIONAL CHALLENGE TO OBAMACARE (2013).
208. Lawrence Solum has introduced the concept of the "constitutional gestalt" to describe the configuration of normative theories, doctrines, and constitutional narratives in place at any period of time. Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 WASH. L. REV. (forthcoming 2013) (manuscript at 32-33), available at http://ssrn. com/abstract=2152653. The configuration of the constitutional gestalt is the result of the processes of living constitutionalism and it can be altered through the same processes.
209. 514 U. S. 549 (1995).
210. Id. at 552 (quoting THE FEDERALIST No. 45, at 292-93 (James Madison) (C. Rossiter ed., 1961)).
211. Nat'l Fed'n of Indep. Bus. V. Sebelius, 132 S. Ct. 2566, 2578 (2012).
212. Id. at 2589 ("The Government's theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, 'everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.'" (quoting THE FEDERALIST No. 48 (James Madison))).
213. In United States v. Comstock, 130 S. Ct. 1949, 1954(2010), for example, Chief Justice Roberts joined an opinion that held, in effect, that because the federal government could create crimes, it could create a federal prison system for people who violated them, and because it could create a federal prison system, it could create a federal system of civil commitment to detain mentally ill persons who had served their sentences but whom no state was eager to accept.
214. NFIB, 132 S. Ct. at 2589;
215. Brief for Respondent on the Minimum Coverage Provision at 16, 18, U. S. Dep't of Health & Human Servs. V. Florida, affd in part, rev'd in part sub nom NFIB, 132 S. Ct. at 2566 (2012) (No. 11-398)
216. (quoting THE FEDERALIST No. 45 (James Madison)); id. at 20 (quoting eighteenth-century dictionaries on the meaning of "regulate"); id. at 32
217. (quoting THE FEDERALIST No. 84 (Alexander Hamilton)); id. at 11 ("A power to regulate existing commercial intercourse is precisely what the framers sought to confer upon the new federal government. The power to compel individuals to enter commerce, by contrast, smacks of the police power, which the framers reserved to the States."); id. at 17 ("The power to force individuals to engage in commercial transactions against their will was the kind of police power that [the Framers] reserved to state governments more directly accountable to the people-"); id. at 32 ("[T]he framers were acutely aware of that flawed argument [that rights guarantees militated against limited federal power] and drafted the Ninth and Tenth Amendments to guard against it.").
218. NFIB, 132 S. Ct. at 2615 (Ginsburg, J., concurring in part and dissenting in part) ("The Framers' solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation 'in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.'"
219. (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 131-132 (Max Farrand ed., Yale Univ. Press 1967) (1911) (quoting the language of Resolution VI of the Virginia Plan)));
220. see 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra, at 14, 16-17 (original language of the Virginia Plan);
221. see also NFIB, 132 S. Ct. at 2615-16 (Ginsburg, J., concurring in part and dissenting in part)
222. (citing as support for flexible national power to solve federal problems THE FEDERALIST No. 34 (Alexander Hamilton);
223. James Madison, Vices of the Political System of the United States, in JAMES MADISON: WRITINGS 69, 71 (Jack Rakove ed., 1999);
224. Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 PAPERS OF JAMES MADISON 368, 370 (Robert A. Rutland & William M. E. Rachal eds., 1975);
225. Letter from James Madison to N. P. Trist (Dec. 1831), in 9 WRITINGS OF JAMES MADISON 471, 475 (Gaillard Hunt ed., 1910);
226. Letter from George Washington to James Madison (Nov. 30, 1785), in 8 PAPERS OF JAMES MADISON, supra, at 428-29).
227. DAVID LODGE, SMALL WORLD: AN ACADEMIC ROMANCE 51-52, 149-50, 197-98 (1984).
228. See Sanford Levinson & J. M. Balkin, Law, Music, and Other Performing Arts, 139 U. PA. L. REV. 1597, 1643-44 (1991) (arguing that the experience of modernity creates a sense that the past is slipping away, and therefore it creates an urgency to recapture what has been lost). Note that although this may explain the origins of originalism, one can still theorize independently about its merits.