Thursday, November 15, 2018

Schmidt on Originalism and the Fourteenth Amendment

Christopher W. Schmidt, Chicago-Kent College of Law and American Bar Foundation, has posted Originalism and Congressional Power to Enforce the Fourteenth Amendment which appears in the Washington and Lee Law Review Online 74 (2018): 33:
In this Essay I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne.
H/t: Legal Theory Blog, where my colleague Lawrence Solum writes that the paper includes “no discussion of the original public meaning of the text of Section 5.”

His comment provides an occasion to report that "original public meaning" took some hard knocks during the panel on "Originalism and History" at the just concluded annual meeting of the American Society for Legal History.   (See p. 33 of the program.)   Jonathan Gienapp, Stanford History, presented a paper drawing upon his Second Creation: Fixing the American Constitution in the Founding EraBernadette Meyler, Stanford Law, addressed the Confrontation Clause with a paper based on research in early American court records (and especially a homicide in New Jersey). In place of Saul Cornell, who could not attend, Logan Sawyer, Georgia Law, presented "Method and Dialog in History and Originalism," which contrasted the cordial exchanges of legal historians with an earlier generation of originalists (e.g., Willard Hurst and Raoul Berger) with those of today.

On such matters, be on the lookout for Law and History Review 37:3 (2019), a special issue on “Legal History and Originalism: Rethinking the Special Relationship."