Monday, September 2, 2013

Tillman on American Originalism and Australian Law

Seth Barrett Tillman has posted a set of PowerPoint slides, Comparative Public Law, Originalism, and Foreign Parliamentary Materials: One American’s Exploration of Australian Judicial and Parliamentary Materials, which he will present in Dublin to the International Commission for the History of Representative and Parliamentary Institutions on September 4, 2013.  Here is the abstract:
Historians, political scientists, academic lawyers, litigants, and judges have parsed nearly every article, clause, phrase, and word of the United States Constitution of 1787. Nonetheless, there remain a few “orphan” clauses: obscure provisions and clauses which have escaped significant academic and judicial commentary.

Of course, absent concrete cases and controversies, judges have no substantial opportunity to opine on such provisions. When academics engage these materials, the results are not too pretty. One standard response is to opine that these provisions had no reasonably determinate meaning in 1787 within the American polity, or, even if they once (may have) had such a determinate meaning, we now lack sufficient records to determine their meaning. Another standard trope is to assume that these clauses are redundant (with other clauses whose meaning we know) or to assume aspirational unity with other clauses (again, clauses whose meanings we know).

In this lecture, I will discuss three orphan provisions, including: (i) the Orders, Resolutions, and Votes Clause (U.S. Constitution Article I, Section 7, Clause 3); (ii) the “Propose or Concur with Amendments” language within the Origination Clause (U.S. Constitution Article I, Section 7, Clause 1); and (iii) the diverse language in the Constitution relating to Office and Officer. In regard, to each provision (or related set of provisions), I will explain how the current understanding (or, at least, my understanding) of these provisions has been destabilised (or influenced) by investigating foreign legal – in particular, foreign parliamentary – materials.

Finally, I will opine on why I believe Australian (and Canadian) legal, and especially parliamentary, sources, are likely to prove particularly useful sources in developing early American constitutional and statutory materials.