Continuing a New Year’s tradition, here are my picks for the Originalism Top Ten of 2013:
1. Harvard University Press publishes Originalism and the Good Constitution, by John McGinnis and Michael Rappaport. Ed Whelen comments here; a Liberty Forum discussion is here.
2. The previously-obscure Recess Appointments Clause becomes the top originalist news story after a strongly textualist-originalist opinion from the D.C. Circuit in Noel Canning v. NLRB (comments here from Mike Rappaport), a cert. grant by the Supreme Court, and an array of commentary and new scholarship (including this paper from Rob Natelson). Briefing at the Supreme Court relies heavily on originalist scholarship, both in the parties’ briefs and in what may be the first amicus brief of self-identified originalist scholars.
3. Congress’ power to enforce treaties is the other big originalist story at the Supreme Court, as Bond v. United States is granted, briefed and argued. Originalist arguments feature prominently on both sides. (Nick Rosenkranz and Rick Pildes debate here, with comments from Curt Bradley, and my comments on Bradley). As usual, I take a middle ground. Notably, both Bond and Noel Canning heavily invoke prior originalist scholarship, by Nick Rosenkranz (in Bond) and Mike Rappaport (in Noel Canning).
4. Will Baude’s article Rethinking the Federal Eminent Domain Power in the Yale Law Journal is the highest profile originalist article by a new scholar. On the surface a challenge to the longstanding assumption that the federal government has eminent domain power, at a deeper level it explores the “great powers” theory of the necessary and proper clause. (Baude also seems to be everywhere on the internet in 2013).
5. Fordham Law School’s conference on originalism, organized by originalism-denier Saul Cornell, produces an impressive set of originalist papers, including by Keith Whittington, Randy Barnett, Lawrence Solum, Larry Alexander, Jack Balkin and Bernadette Meyler. (Bonus: The University of Pennsylvania Journal of Constitutional Law also holds an originalism conference with an outstanding lineup).
6. As President Obama delays or declines to enforce various laws, commentary focuses on the President’s power not to enforce the law (featuring thoughts from John Yoo & Robert Delahunty, Eugene Kontorovich, Jennifer Rubin, Nick Rosenkranz, and Michael McConnell) – up to this point, an under-appreciated issue amid an oversupply of originalist scholarship on executive power. Zachary Price (U.C. Hastings) begins the scholarly exploration, blogs about it, and gets George Will's attention.
7. Richard Epstein publishes The Classical Liberal Constitution (Harvard University Press 2013). Is it originalism, or Epstein-ism?
8. The President does not declare war in Syria. One would like to think that originalism can claim some credit – John Yoo notwithstanding, originalist arguments (e.g., here, from Michael Stokes Paulsen; my thoughts here) provide legal ammunition to the President’s opponents, ultimately leading to a very significant concession by the President regarding presidential war power.
9. David Upham’s article Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause highlights increasing originalist focus on the Fourteenth Amendment – and increasing pushback from some originalists on the standard non-originalist claim that many appalling racial laws would be constitutional under the Amendment’s original understanding.
10. Originalist scholars and critics gather in San Diego for the Fourth Annual originalism works-in-progress conference at the University of San Diego’s Center for Constitutional Originalism.
And as usual I can’t resist a few honorable mentions: Stewart Jay’s new look at the Article IV privileges and immunities clause, Donald Dripps on originalism and Fourth Amendment searches (linked up with the likely Supreme Court cases on cell phone searches and the NSA spying debacle), Justice Thomas's speech at the Federalist Society Convention, and Michael Perry’s new book Human Rights in the Constitution of the United States.
Posted at 6:48 AM