At the NYU Law School website, Former circuit judge Michael McConnell and Professor Noah Rosenblum debate originalism. (Video; this is from late last year but recently posted online). From the description of the event:
The merits and pitfalls of originalist interpretation of the US Constitution were the focus at the November 19 installment of Respectfully Dissent, an NYU Law discussion series that, in an era of less-than-civil public argument, showcases reasoned dialogue between faculty members on contentious topics. Originalism holds that the Constitution’s text should be interpreted today as it would have been at the time of its writing in the 18th century. While stirring debate among practitioners and scholars, the legal theory has been the basis for far-reaching opinions from the US Supreme Court, such as Dobbs v. Jackson Women’s Health Organization, which overturned a 50-year-old precedent by holding that the Constitution does not provide for the right to an abortion.
Visiting Professor of Law Michael McConnell, a professor at Stanford Law School and former judge on the US Court of Appeals for the Tenth Circuit, advocated for a “common sense” version of originalism, while Professor Noah Rosenblum, an expert in constitutional law, administrative law, and legal history, offered a critique of originalism centered on the practical evolution of constitutional law. Jeanne Fromer, Walter J. Derenberg Professor of Intellectual Property Law and vice dean for University partnerships, moderated the discussion.
McConnell opened the debate by framing originalism as the most logical way to approach a text drafted more than two centuries ago. He argued that the Constitution derives its authority from the specific intent of “We the People” at the moment it was ordained.
To McConnell, originalism is less about a judge’s personal ideology and more about adhering to the actual meaning of words like “equal protection” or “due process” as understood at the time of their writing. He warned that the alternative is a system where judges may effectively substitute their personal policy preferences for the law. McConnell maintained that while history may not provide a specific answer in every case, it provides essential guidance that prevents judicial overreach.
Rosenblum countered that while original meaning has some bearing on the law, it is rarely dispositive. Judges naturally weigh the original text against other values, such as precedent, practicability, and the “rule against absurdities,” he suggested. To illustrate the limits of originalism, Rosenblum used the often-cited example of West Virginia: while that state’s creation during the Civil War likely violated the Constitution’s literal requirements for statehood, its status is now an accepted fact. He argued that a theory of interpretation must account for these “settled arrangements” rather than clinging to a “binding authoritative past.”
(Via Dan Ernst at Legal History Blog.)
I don’t think the West Virginia argument is a particularly strong point against originalism, even if true. How originalism deals with “settled arrangements” is completely separate from whether originalism should be used to resolve matters that don’t involve “settled arrangements.”
In any event, Vasan Kesavan and Michael Paulsen concluded (after 108 pages) in the classic article Is West Virginia Unconstitutional? that in an originalist analysis West Virginia is not unconstitutional — “[p]robably.”
Posted at 6:11 AM