At the National Constitution Center’s “Constitution Daily” blog, Doug Kendall and Tom Donnelly (Constitutional Accountability Center): Big Battles Brewing over the Constitution’s Original Meaning. From the introduction:
For decades, debates over the Constitution divided along familiar lines. Progressives professed faith in a “living Constitution,” while conservatives claimed fidelity to originalism. In recent terms, however, this dynamic has changed. The Court’s progressive wing—led first by Justice John Paul Stevens and, since his retirement, Justice Ruth Bader Ginsburg, and aided by leading academics and practitioners—have begun to stake their own claim to the Constitution’s text and history. …
[An] important theme … ties together many of this term’s biggest cases—the growing left/right battle over the Constitution’s original meaning.
With both the legal left and the legal right fully engaged, the battle over the Constitution’s original meaning will be one of this term’s biggest stories.
Maybe. I agree that Noel Canning and Bond will draw substantial originalist-oriented interest (although both are capable of being decided on narrow grounds that do not implicate material constitutional issues), and that is especially true — as Kendall and Donnelly explain — because strong originalist arguments are being made on both sides. I hope to have more to say about both cases here as the term goes forward.
I’m more skeptical about McCutcheon, the campaign finance case to be argued tomorrow (10/8). While efforts have been made to find an originalist defense of the contribution limits (see here, and more here from Larry Lessig), I think the limits are more likely to be overturned on doctrinal and policy grounds — along the lines of George Will’s argument here.
My pick for a “sleeper” originalist case is Town of Greece v. Galloway (to be argued in November). While it’s most immediately about the ability of a local government to begin its meetings with a prayer, the Town of Greece case could be way for the Court to rethink its unsatisfactory (to almost everyone) establishment clause doctrine. My colleague Steve Smith had a good post on this possibility last week at SCOTUSblog; see also this from Rick Garnett. If the Court is in a re-thinking mode, originalist arguments are likely to play a significant role in at least some of the opinions.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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