There are multiple DOTWs this week. First up is:
Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition by Randy E. Barnett & Lawrence B. Solum (Here is the abstract:
In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.
These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?
Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.
This is a systematic investigation of the role of history and tradition in Dobbs, Bruen, and Kennedy. As always, comments are welcome. If might be permitted to say so myself, download it while it's hot!
Next:
The Incompatibility of Substantive Canons and Textualism by Benjamin Eidelson & Matthew Stephenson have posted on SSRN. Here is the abstract:
A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious - and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve.
With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.
Importantly and sophisticated. Highly recommended. Download it while it's hot!
And:
The Puzzle of Procedural Originalism by Mila Sohoni. Here is the abstract:
On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. Reorienting extant procedural doctrine around the polestar of original meaning could have dramatic effects: for example, it could oust corporations and D.C. citizens from suing or being sued in diversity while throwing into disarray the doctrines that govern the vast set of suits in which state and federal courts exercise personal jurisdiction over out-of-state defendants. In these and other respects, an originalist turn in procedure may have momentous consequences for our law.
This Article examines this emergent phenomenon of “procedural originalism”—its past, its present, and its prospects. It describes the intellectual backstory of originalism’s engagement with civil procedure and remedies and the fresh uptick of attention to the originalist underpinnings of various procedural and remedial doctrines. It surveys the discrepancies between original public meaning and bread-and-butter staples of civil procedural doctrine while showing how civil procedural doctrine has drawn its substance from considerations beyond mere original meaning. And it sketches the challenging questions that procedural originalism poses for some of the many theories of originalism.
Above all, however, this Article explores what originalism’s late arrival to the domain of civil procedure reveals about the construction of the originalist agenda. A prominent charge levied against originalism is the claim that originalism is not an apolitical legal interpretive methodology but rather a tool for selectively inscribing into constitutional law the political goals of the conservative legal movement. What is striking about civil procedure is that an originalist remodeling of procedural law would call for some outcomes that are nonaligned with, or even sharply adverse to, the aims of key conservative movement constituencies. The future course of procedural originalism therefore promises to throw light on the contours of originalism’s constitutional politics and, ultimately, will offer a new test of the charge that originalism is a proxy for politics rather than a theory of law.
Highly recommended. Download it while it's hot!
