Recently published: the Northwestern University Law Review's Symposium "Originalism 3.0" (Special Issue 2019, Vol. 113, No. 6). Many of the essays have already been featured on this blog when posted to SSRN, but I think not these two:
This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories contradict one another and cannot be jointly adhered to. I then explain why I prefer originalism to Thayerianism as a normative matter.
This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated shaped discussions about rights in ways that originalism should address. In particular, colonists argued with colonial officials both explicitly and implicitly about the extent to which statutes as well as common law applied in the colonies. These contested statutory schemes should affect how we understand constitutional provisions: for example, they might suggest that statutes pertaining to martial law should be added to those treating habeas corpus as a backdrop against which to interpret the Suspension Clause. Furthermore, the conflict showed the significance to members of the Founding generation of the personnel applying law, whether military or civilian, rather than the substantive law applied; this emphasis could also be significant for how we interpret constitutional rights.
The other essays are:
John O. McGinnis and Michael B. Rappaport, Unifying Original Intent and Original Public Meaning, 113 Nw. U. L. Rev. 1371 (2018).
William Baude and Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455 (2018).
Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2018).
Thomas B. Colby, Originalism and Structural Argument, 113 Nw. U. L. Rev. 1297 (2018).
Posted at 6:04 AM