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2-12-2017

Textualism and Originalism in Constitutional Interpretation

John M. Greabe University of New Hampshire School of Law, [email protected]

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Recommended Citation John M. Greabe, Textualism and Originalism in Constitutional Interpretation, Concord Monitor, Feb. 12, 2017 at D1, D3.

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Mailbag Textualism and originalism in constitutional interpretation

Man of the people? n a 2016 lecture at the Case cratically enacted legal text such Western Reserve University as a provision of the United States If President Donald Trump is a I School of Law, Judge Neil Gor­ Constitution, the judge should use man of the people, as he claimed in such warmly "textualism" and his inaugural address, why is he get­ praised former "originalism" as in­ ting rid of Dodd-Frank banking regu­ Supreme Court terpretive guides. lations. Justice Antonin A textualist-orig­ Dodd-Frank was enacted after Scalia's approach inalist judge in the the horrendous banking debacle of to constitutional in­ mold of Justice 2007-08 when banks made too many terpretation. Be­ Scalia seeks to ap­ dubious Joans. It requires banks to cause President ply the "original maintain a bigger Trump has nomi­ public meaning" of cushion of cash in nated him to serve a constitutional pro­ the event that more on the Supreme vision. The original loans go worse Court, it is impor­ JOHN GREASE public meaning is than they antici­ tant to understand Constitutional Connections how a reasonable pate. Also banks the approach and reasonably have stricter re­ Judge Gorsuch fa- well-informed porting require­ AP vors. member of the public alive at the ments and are sub­ Supreme Court Justice nominee Nell Gorsuch (right) meets with Sen. Justice Scalia maintained that, time the provision was enacted ject to audits to determine their abil­ Roy Blunt, a Missouri Republlcan, In Washington on Friday. when a judge interprets a demo- SEE CONSTITUTION 03 ity to withstand adverse financial events. So what is wrong with that? Do we want a repeat of the near col­ lapse of the whole economy caused by bad lending? Do we think large banks have learned what can hap­ A Little Perspective pen to our entire financial system due to over-leveraging? Do we think CHRIS CILLIZZA, WRITING IN THE WASH­ large banks are looking out for our INGTON POST: "To Trump, it was an open-and-shut best interests and our country's best case: He was the president. The president is tasked interest? with keeping the country safe. This ban would keep I don't think removal of Dodd­ the country safe. The appeals court didn't see it that Frank regulations is in the best in­ way, leaving Trump with the very real possibility that terest of the people and the country. even an appeal to the Supreme Court will change Also, President Trump issued a nothing. Remember that the Supreme Court is di­ directive removing the requirement vided between four more-lib­ that financial advisers look out for eral justices and four more­ the best interests of their clients. conservative ones. The ninth What is going on here? I can only seat ls open as a result of the think that the financial interests are death of Antonin Scalia and the dominant here. Do you want your fi­ blockade Republicans put up nancial adviser looking out for his or on then-President Barack her best interests rather than your Obama's nomination of Mer­ best interests? I certainly don't. rick Garland. Trump court nominee Neil Gorsuch is in the CRAIG FOURNIER very early stages of the process and wouldn't be Webster seated- even if he is eventually confirmed - in time to break the tie. And a tie would mean the ruling of the appeals court would hold - and Trump's travel ban would be no more. That's a big deal for a man who promised during the 2016 campaign that he NHwayback could change everything that people hated about Washington, bringing his business savvy to its ON FEB. 12, 1992, six days be­ bloated bureaucracy. What Trump ls learning - or fore the New Hampshire primary, a should learn - from this latest court ruling is that the letter Bill Clinton wrote to his draft government isn't like a business in one critical way: board during the Vietnam War is re­ There are checks and balances built into the system. leased. Saturation news coverage of The judiciary is not something he can control or ca­ -,p how Clinton avoided the draft threat­ jole. He is, quite literally, not the boss of the federal Tallptlng, an Ivy Lea..,_ custom that Is spreading, becomes the gathering place for famlly ens his campaign. court system." and friends before the football game at Dartmouth College In Hanover on Nov. 10, 1970. GQncordmonitor.com FORUM Sundav. Februarv 12. 2017 I CONCORD MONITOR 03 Textualism-originalism comes in more than one form and flavor CONSTITUTION FROM D1 the law wiU be in the future. pie's representatives to jected Justice Scalia's asser­ standings? the Constitution a "living" These roles are to be kept change because they are tion the original public mean­ So construed, the Eighth Constitution that is more would have understood it to separate and distinct. (supposedly) rooted in the ing of a constitutional provi­ Amendnlent's ban on "cruel likely to function well in a plu­ apply in circumstances like Proponents also say that Constitution. sion must be construed in a and unusual punishments" ralistic and rapidly changing those facing the judge. this approach reinforces the This is judicial tyranny, time-dated manner. In does not merely prohibit pun­ world. A judge applying this democratic foundations of our proponents say. The Constitu­ Dworkin's view, the people of ishments thought cruel and In a 2015 lecture at Har­ method understands the in­ constitutional order. When tion does not authorize the founding generation unusual in 1791; it prohibits vard Law School, Supreme stitution of judicial review - judges find some law or prac­ judges to create new consti­ would have expected future punishments thought cruel Court Justice Elena Kagan our accepted practice of giv­ tice unconstitutional, they tutional law through the prac­ generations to reinterpret the and unusual today. Thus, a paid homage to Justice Scalia ing judges final say on consti­ halt or delegitimize the work tice of judicial review. Rather, majestic but (mostly) ambigu­ principled textualist-original­ by saying "we're all textual­ tutional meaning - to confer of a politically accountable the Constitution authorizes ous generalities of the Consti­ ist judge could plausibly con­ ists now." As this statement only a backward-looking in­ branch. This is acceptable in the people to create new con­ tution so as to make them clude (as the Supreme Court shows, Justice Scalia's textu­ terpretive power. Constitu­ a democracy only when the stitutional law through the their own. has concluded) that adnlinis­ alist-originalist interpretive tional provisions are time­ textual basis for the judicial strictamendnlentprocesses Consider, for example, the tration of the death penalty approach has had a profound dated; they mean today noth­ intervention is a superior specified in Article V. The Eighth Amendnlent's ban on for crimes other than murder impact on American law. And ing more or less than what source of democratically-en­ Constitution should not be "cruel and unusual punish­ is now unconstitutional even it appears that Judge Gor­ they meant when they be­ acted law (i.e., the Constitu­ easy to amend. ments." Why, Dworkin asked, though, in 1791, the death such is prepared to pick up came the law of the land. tion) understood l>y its enac­ Many judges and theorists should we understand the penalty was regularly im­ the torch and carry it for­ Proponents of this textual­ tors to mean what the judges have strongly challenged Jus­ Founders to have banned posed for lesser crimes. ward. But it is important to ist-originalist approach say say that it means. tice Scalia's approach to con­ only punishments thought Proponents of this type of understand that textualism­ that it reinforces our consti­ If the italicized qualifica­ stitutional interpretation. One cruel and unusual in 1791 textualism-originalism say originalism comes in more tutional separation of powers. tion ·in the previous sentence such challenge, advanced by (when the Eighth Amend­ that it is superior to Justice than one form and flavor. In Article III of the Constitu­ is disregarded, proponents prominent constitutional law ment was ratified)? Isn't it Scalia's approach for at least tion, the Founders created a say, the practice of judicial re­ scholar Ronald Dworkin, is more plausible to think that two reasons. (John Greabe teaches con­ federal judiciary that would view inevitably results in particularly interesting. the Founders, who believed in F1irst, as just explained, it stitutional law and related pronounce what the law is by judges prescribing new limi­ Dworkin accepted Justice self-governance and abhorred is more faithful to the (likely) subjects at the University of ascertaining what the law tations on government power Scalia's textuallst and origi­ distant and hierarchical original understanding that New Hampshire School of was when enacted. And in that have not been authorized nalist premises but applied power structures, would have the Constitution should re­ Law. He $0 serves on the Article I, the Founders cre­ by the people. What's more, them to reach very different wanted future generations to flect the American people's board of trustees of the New ated a legislative body these new limitations are be­ conclusions. infuse this vague provision contemporary values. Sec­ Hampshire Institute for (Congress) to prescribe what yond the power of the peo- Crucially, Dworkin re- with contemporary under- ond, and relatedly, it makes Civics Education. ) All Trump stands for is his own self-promotion and wealth FAME FROM Dl ing and benevolence. By 2091, fame came in first, followed by they are on TV or in movies, achievement, image, popular­ or play music or sports. As a ity and financial success. By TV star for years and as . 2007, in the aspirati