A while back Andrew Koppelman published an essay titled Why Do (Some) Originalists Hate America?. At Volokh Conspiracy, David Kopel has this response: Originalists Don't "Hate America". From the introduction:
In the Arizona Law Review, Professor Andrew Koppelman asks the provocative question Why Do (Some) Originalists Hate America?, 63 Ariz. L. Rev. 1033 (2021). Originalists who are denounced in the essay include Volokh Conspiracy contributors Randy Barnett (Georgetown), Sam Bray (Notre Dame), Stephen Sachs (Duke), Will Baude (Chicago), me (Denver), and frequent VC guest writer Rob Natelson (presently my colleague at the Independence Institute, formerly at Montana).
Koppelman presents two main arguments. First, some originalists, presumably including all of those he criticizes in the article, are radicals who "hate America."
Second, originalism as a methodology is inherently unstable because it makes the law dependent on the latest discoveries in obscure archives. The only example Koppelman cites for originalism having affected a case outcome is the Natelson-Kopel influence on Chief Justice Roberts' opinion in the Obamacare case, National Federation of Independent Business v. Sebelius. That example is weak, because the Natelson-Kopel argument simply elucidated Chief Justice Marshall's statement in McCulloch v. Maryland: the Necessary and Proper Clause is a grant of "incidental" powers, and not the grant of "a great substantive and independent power." 17 U.S. 316, 411 (1819).
This post first examines Koppelman's assertion that originalists "hate America." Next, it briefly addresses Koppelman's valid criticism of simplistic use of corpus linguistics. Koppelman points to what he considers to be the three prime examples of what he calls "Rules-Reductive Originalism": Randy Barnett on the Commerce Clause, Rob Natelson the Coinage Clause, and Natelson-Kopel on the Necessary and Proper Clause. The post examines each in turn.
Koppelman warns that originalism would create major changes in the law. That is true for the Commerce Clause. However, originalist approaches the Coinage Clause and the N&P Clause just validate the long-standing status quo. The originalist peril is not as dire as Koppelman worries.
I pretty much entirely agree with what Professor Kopel says. Above all, it seems quite hyperbolic to contend that people who urge reforms in a particular area of American law "hate America."
(Thanks to Andrew Hyman for the pointer.)
Posted at 6:07 AM