Yesterday I blogged about “Originalism’s Bite,” a short Green Bag piece I wrote with Steve Sachs. Because people have sometimes accused us of defining originalism in a way that makes it lack bite, one other thing we did in the piece was to “start naming names” of cases that we doubt were rightly decided on originalist grounds.
We started with the following:
Without having done the research ourselves, we doubt (say) that the original Constitution let states impair contracts on claims of “economic emergency” – or that this power was ever lawfully conferred since. We likewise doubt the pedigree of modern cases on executive agreements; jury numbers or unanimity; counsel comment on failure to testify; one-person one-vote; diversity jurisdiction for D.C. citizens; “commerce” regulation of wholly intrastate activity; administrative adjudication of private rights; and maybe even commandeering state officers or Article III limits on standing. Maybe the cases are right despite our doubts, or at least tolerable under original doctrines of stare decisis. (Again, we haven’t done the research.) And maybe more, or more controversial, cases belong on that list.
And if you don’t recognize them from those descriptions, we cited the following cases:
Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 444 (1934)
Dames & Moore v. Regan, 453 U.S. 654 (1981)
Apodaca v. Oregon, 406 U.S. 404 (1972); Williams v. Florida, 399 U.S. 78 (1970)
Griffin v. California, 380 U.S. 609 (1965)
Reynolds v. Sims, 377 U.S. 53 (1964)
Nat’l Mutual Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949)
Wickard v. Filburn, 317 U.S. 111 (1942)
Crowell v. Benson, 285 U.S. 22 (1932)
Printz v. United States, 521 U.S. 898 (1997)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Over at the Liberty Law Blog, Michael Rappaport chimes in:
I must admit that I find this to be difficult. If one has a sophisticated and open minded view of interpretation – which I like to believe I do – many clauses of the document are simply not clear, unless one has done the extensive historical research. Even then, the resolution of issues will often be a matter of judgment. Thus, it is sometimes difficult to make firm statements about the original meaning.Of course, that people cannot be sure of the original meaning without doing the historical research does not mean that the original meaning would be unclear once one does the historical research. . . . [And] there are many cases where the original meaning appears to be clear.
As to our list, he concludes: “I agree with this list of cases — and I could add to it. It would be interesting to see how many cases I could come up with.”
Indeed it would. So what else belongs on our list? I welcome suggestions.