In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.
Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law. The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate. But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.
Michael Ramsey and Chris Green have made thoughtful comments on The Originalism Blog on my post asserting a tension between original intent and judicial restraint. (Briefly, I argued that originalism does not necessarily entail restraint and might often counsel the opposite, so that judicial conservatives ultimately have to choose between them.)
Ramsey observes, persuasively, that the tension I asserted is equally a tension for liberals, who must also choose between their calls for a living constitution and judicial restraint; otherwise it is “hard to take their calls for judicial restraint seriously.” I agree. Many if not most calls for judicial restraint are opportunistic. That said, judicial conservatives who have argued most pointedly for tethering constitutional interpretation to foreseeable principle bear, I would argue, a particular burden not to succumb to that temptation.
Over at originalismblog, Mike Ramsey has a generous, fair-minded, but critical comment on my most recent musings about the “dormant” Commerce Clause and modern-day originalists’ resistance to the notion. He’s entirely right that my blog post doesn’t do enough to defend the dormant Commerce Clause, and he raises the right sort of textual and structural objections.
The Upside-Down Constitution contains an extended defense of the doctrine on what I think are originalist grounds. Today, though, something completely different—a consequentialist point that, I think, conservatives and libertarians haven’t considered sufficiently.
I’m very grateful for Mike Ramsey’s forceful response at The Originalism Blog to my earlier post on the (alleged, by me) conflict between modern-day textualism-originalism and John Marshall’s jurisprudence, on the subject of preemption and beyond. I prolong this dispute among friends because I think it matters not only or even primarily for constitutional theorists but for urgent practical reasons. Like, the fate of our economy and the Supreme Court’s ability to get cases right on principle, rather than sheer fortuity. This post deals with general jurisprudence; the next, with preemption.