My “Amicus Brief” in Bond v. United States

In sum, there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.


Linda Greenhouse: A Tree Grows in Canada (and Are Women “Persons”?)

In The New York Times, Linda Greenhouse has an anti-originalist column A Tree Grows in Canada — with some interesting Canadian history.  As she explains, the British North America Act (effectively Canada’s original constitution) provided for “qualified persons” to be appointed to the Senate.  When a woman, Judge Emily Murphy, sought appointment, she was rejected because (it was said) women did not qualify as “persons.”  As Greenhouse continues the story:

Judge Murphy and four other Alberta women, who were to become known as the Famous Five, formally petitioned the federal government, which then put a question to the Supreme Court of Canada: “Does the word ‘Persons’ in Section 24 of the British North America Act include female persons?”

The Supreme Court said no, on grounds that would warm the heart of some current members of the United States Supreme Court. Whether it would be desirable for women to be eligible for senatorial appointment was beside the point, Chief Justice Frank Anglin wrote in his opinion. What mattered was what the drafters of the 1867 statute intended, and the words they wrote had to “bear today the same construction which the courts would, if then required to pass upon them, have given to them when they were first enacted.”

Based on this, Greenhouse doesn’t understand originalism, and neither did Chief Justice Anglin (about whom I otherwise know nothing).  The decision is silly, and no modern originalist would follow it, nor would it warm anyone’s heart on the current Court.  It’s possible (even likely) that the drafters of the Act only had only men in mind as Senators.  But they did not write “men,” as they easily could have.  (Voting laws of the time typically referred to “male” citizens, for example).  They wrote “persons.”  In 1867, I cannot imagine that in any ordinary legal language, in Britain or Canada, “persons” meant “only male persons.”  A word in a statute should be given its ordinary public meaning, regardless of subjective intentions harbored by its drafters.


Originalism and the Supreme Court’s 2013 Term

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…


Marco Simons on Originalism and Daimler v. Bauman

At Concurring Opinions, Marco Simons (EarthRights International) has this post on the Daimler v. Bauman case (argued at the Supreme Court 10/15):  Is There a Constitutional Right to Corporate Separateness?  Mr. Simons and I have been on opposite sides of some cases in the past, but I think there is something to his originalist argument here: The Ninth Circuit…


Sean Wilentz Plays John Yoo on the Debt Ceiling (with my Response)

In the New York Times, Princeton historian Sean Wilentz: Obama and the Debt (arguing that refusing to raise the debt ceiling “would violate [a] ‘fundamental principle’ of the Constitution” and that the President “in times of national crisis, can invoke emergency power to protect the Constitution” by, in this case, borrowing on his own authority.)

(Thanks to Michael Perry for the pointer).

I have some comments, none of them complimentary.  So I’ll start by saying that Professor Wilentz is a great historian and everyone should, at minimum, read his Bancroft-award-winning The Rise of American Democracy: From Jefferson to Lincoln (W.W. Norton, 2006).

Now for the comments:

1.  Wilentz asserts the meaning of Section 4 of the Fourteenth Amendment, chiefly by looking at drafting and ratifying history, prominently quoting Republican leader Benjamin Wade, and referring to the beliefs and motivations of other principal drafters.  In sum, this is the original meaning of the Fourteenth Amendment.  Apparently Sean Wilentz is an originalist!

But wait, I thought historians denied the very foundations of originalism, claiming that history cannot be used to establish fixed meanings.  Is there actually some deep split among leading historians regarding the use of history?  (See alsohere, in which the great historian Joseph Ellis appears certain of the historical meaning of the Second Amendment).  Or do historians’ doubts about the coherence of originalism only apply when it’s done by law professors, or by conservatives?

2.  Professor Wilentz’s history doesn’t show what he thinks it shows.