St. John's Law Review Volume 93 Number 3 Volume 93, 2019, Number 3 Article 9 Evaluating Originalism: Commerce and Emoluments John Vlahoplus Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact
[email protected]. EVALUATING ORIGINALISM: COMMERCE AND EMOLUMENTS JOHN VLAHOPLUS† INTRODUCTION The debates among originalists and between them and their critics have continued unabated since Paul Brest, H. Jefferson Powell, and others rebutted original intent originalism in the 1980s.1 Critics claim victory, arguing that none of the many originalist theories is conceptually sound,2 normatively attractive,3 consistent with the others,4 or accurate as a description of American constitutional practice.5 Originalism is merely “a collection of rapidly evolving theories, constantly reshaping themselves in profound ways in response to devastating critiques, and not infrequently splintering further into multiple, mutually exclusive iterations. The very notion of originalism itself has become indeterminate.”6 Originalism is not a jurisprudential doctrine, but rather a political practice designed to achieve specific ends through the dubious claim that its historical authenticity transcends political disputes.7 Originalists respond † B.A., Washington & Lee University; J.D., Harvard Law School; D.Phil., Oxford University; Member, New York State Bar. Thanks to Gary Lawson, Robert G. Natelson, Lawrence B. Solum, Seth Barrett Tillman, Phoebe Vlahoplus, and the editors of the St.