Transcripts For CSPAN2 LegalScholarsDiscuss 20240704 : vimar

CSPAN2 LegalScholarsDiscuss July 4, 2024

To always be learning ahead by resetting the National Constitution and mission statement. Here we go. National Constitution Center is the only center in chartered by congress to increase awareness and understanding of the constitution among the American People on a nonpartisan nonpartisan basis. We have programs coming up in july, next thursday, july 6 we host a conversation on this and the constitution. On july 13, we have our Supreme Court annual review with the adl, an allstar cast. An hour we the people podcast that will be covering the Supreme Court decisions over the next days and weeks. Be sure to tune into that as well. We will collect russians throughout the discussion today and put them in a box. We will get to them as many as we can. It is an honor to introduce our dream team panel to learn about the various strands of originalism. We have assistant professor of law and codirector of constitutional and the catholic intellectual condition with the Columbus School of law. He is a fellow at the Columbia School of law for religious liberty. A fellow of the American Enterprise institute and the director of the Spanish Institute mentoring and leadership. He previously practiced serves for samuel alito. And we have dr. Robert, at the cato institute. Before she joined cato she was a civil rights attorney where she cocreated the superb podcast. You can check it out from her writings in the future and the washington post. This was june journal, and many others. And the associate professor of law is calling what is marriage, men and women of defense and debating religious liberty and discrimination. And also served as a law to Justice Alito. Thank you for joining us. I would love to begin by helping our audience understand the various strands of originalism and been explore the intellectual evolution. Why dont we begin with you. Just yesterday, in the war be hard for case, we saw very different approaches to the chief Justice John Roberts in the majority and just as thomas leading. How would you distinguish between the originalism of chief Justice Roberts and the contextualism of Justice Thomas and how that mixes into originalism and textualism today. Guest thank you for inviting me to be part of this. I would begin by saying we classify cheap as originalism but he would not classify himself as originalist. But i think it is fair to classify both as originalists and they joined the chiefs opinion in more dissent by Justice Thomas joined by justice full and, Justice Alito following only on the jurisdictional question. There is real disagreement between those two sets of originalist. I should quickly note that my firm litigated more so just for full disclosure on that. I think that with the disagreement in that case shows is one way in which it can be classified which is how they approach president. That is a Major Division against in originalism the extent to which you take on board prior precedent. Now Justice Thomass dissent was thought that the prior president could be reconciled with the position that he thought was a better reflection of the original meaning. But i think you saw a broader conception of president and the force of precedent in the do justice opinion. That seems to be based on what we have seen so far, that probably were flex how justice kept an approach. They seemed to have a broader at stronger understanding of that rather than Justice Thomas or just disgorge it. Host thank you for that, how would you characterize the various strands of originalism . There was a check she was focused for Justice Thomas and Justice Alito where they were asking with the word legislature meant whereas the majority were asking with the word legislature meant at the time of founding and how it had been interpreted by the state constitution and the president precedent. And Justice Barrett perhaps called herself and originalist. How would you unpack that . Sure think you for having me. I will start by saying when originalism really arose to prominent prominence most recently it was intent originalism and it was trying to determine the intent of the framework. Given the various difficulties with that theory, first of all, there are many frameworks. How do we distinguish whose intent or whether the majority intent was . There is now the difficulty analytically but another difficulty is that it is not really fair to hold people to the original intent of the framework because they would or not expressed. Pardon me. It could be handled with all odds to that context that we can be aware of what the governing rules are. Because of difficulties, there was a change from original intent originalism and public meaning originalism which tried to ascertain the meaning of the word in the constitution when those words were ratified. I would say that is the dominant strain of originalism right now and the form of contextualism, of course. And i think that is the one you see most prominently in academia and at the Supreme Court. Something i am particularly interested in, i have seen a shift in originalism since the Supreme Court decision last term where there is a focus on history and tradition in a way that i do not think conforms to in traditionally used within original public meaning originalism. That means usually the justice will look at the practice, sure, but that is to determine the original public meaning of the word. We saw the court say that a law will only be upheld if there was a historical analog. I think that is something new and different. It is showing up in various cases of this term and it is something that i would be happy to explore more in this discussion. Host thank you for that. We put on the table already to instances along originalist, first they said there is the approach to precedent and be role of history and tradition as opposed to the original public meaning at the time of ratification. How would you identify the various strands of originalism and is there a division among them in their approach to reading the text at the time of ratification as interpreted historically over time or simply its ordinary meaning to the dictionary what would it mean to an ordinary reader today . Sure i want to add to everyones thanks for being included in this. The National Constitution center is doing amazing work. I think what has been identified so far would be dimension along which originalist give what the object of it is. Are you looking for the original intent of the framers and their goal or are you looking to the meaning to the members of the public at the time of the text that they adopted . I agree with the other speaker that the emphasis is on the latter. And not just me in particular, but i think it will be reflected in court practice, there is a question about nontextual factors and what role they have. Everyone agrees who is originalist agrees that there is a reporting to the founding era that era in which it was ratified. And that kind of authority wanted those at the time to trump other factors. And even with the russians about whether you can consider the original meaning of the text and the original tools of interpretation that prevailed when the text was adopted. For example, a few look to background principles of the common law. Do you assume that the criminal statute will only govern with analog constitutional. Will only govern conduct within the jurisdiction . Like that. This starts to connect with what i was saying about the role of history. Obviously, in early history, it was the evidence of original meaning. It was the first where congress voted up the First Amendment the established of equality and it also began legislative sessions with air and most elite journalists originalist think that is not rollout would legislative prayer. But what about the rule of later history . Is it one of the factors that the founders or other ratify years of the text would have thought was fair game for a court that was trying to fill gaps in the text . Does history have some other role to play when the text and its original meaning in the original criteria for interpretation run out and so on. Host very interesting. Thank you so much. Lets put a concrete case on the table and discuss it as a window to the greatest parts of originalism. That is the Second Amendment with the case of the court they recently decided in new york the concealed carry law. There was a vigorous debate between Justice Thomas and the geordie who argued that both the original public meaning of the Second Amendment and its historical loss over time required judges to look at historical analogs for restrictions on the Second Amendment and the right to bear arms. Throughout the range, not only american history, but also dating back to the statue of cumberland. And they say and that they were just playing fast and loose with originalism and then changing the baseline about what period of time mattered in order to reach the third the preferred result. How would you describe the majority and who have a better argument . Guest part of the debate is a methodological debate about the originals themselves and injustice priors dissent it takes issue with what he views as overreliance on history and historical meaning and interpreting the Second Amendment. No surprises Justice Pryor has always been a critic of originalism and has always viewed the Second Amendment more through an interest bound approach. Weighing various risks of harm and benefits to come up with what he would view as the best, most reasonable policy. I do not think that is mischaracterizing. I think that is how you would generally view the constitutional education more broadly. I think there are a lot of methodological russians left on questions left unresolved that we have to look to subsequent cases to see how they are hashed out. One that is an example, this is something that we were just talking about, what role does historical practice have after 1791 in the Second Amendment when it was ratified in 1868 when the 14th amendment was ratified is another example area the reason those are the two major time period because in when the Second Amendment was initially ratified it only went to the federal government. And this the Supreme Court said that the 14th amendment incorporates the Second Amendment against the states. So, there is an interesting original logical question about when we are trying to figure out how to with the states, are we focused on the meaning of the Second Amendment in 1868 or in between 91 . That 1791 . That helps you figure out what kind of practices are relevant. One is those are two 7091 or in 19 1868. What about the period of time in between that. And that really does not resolve the questions. Those are major methodological russians going forward. Host thank you. Guest what about that question . Host there is the historical liquidation of what History Matters after there was ratification benchmarks of 1791 and 1868. What do you think of the way Justice Thomas treated history and the majority of his opinion . What do you think the right answer is for history in the original list of liquidation . Guest i think it is right that Justice Barrett wrote separately to state that concern. It is something she has written separately at this term many times to emphasize we need to get the timing and methodology right to make sure we have a coherent theory that is consistent and respected. But more concerning lee, Justice Thomas did Something Different entirely with originalism in my opinion which is overreliance on historical practice. Not just looking at historical practice at any given time period to look at what the words mean but to say that it will only tell if there is a historical catalog. I think the problem with that is historical practice cannot be determinative because sometimes, the government can get it wrong. Or the court get it wrong. So you consider Something Like the slaughterhouse cases where the Supreme Court gutted that clause in a way that almost everyone acknowledges to be wrong. We cannot now rely on historical practice to say that that informs the original public meaning because it is contrary to original public meaning. Or to have Racial Discrimination in up and around 11. The fact that the government may have been the equal protection in. It is not what the People Protection clause required. Even some of the practices cited by Justice Thomas himself, he cited the historical practice and denying gun rights for the various minorities. Those practices are not uncommon those actresses are unconstitutional and we will not practice the meaning of the issue. And one of other things i will add, when there is new technology, there will not be history to rely on because it will not have been previously regulated. I think it is something new, different, incorrect. It is analytically wrong. We do not codify practices. It does not say that the government is doing all that the only the things it was doing or could not do. Where it was ratified. The constitution ratified principles. The principle calls can yield different results at different times. The application may change. I think the over estimate on historical practice is long headed. Host very interesting. Help us to understand Justice Thomas is approach to historical practice in ruin where he looked to historical practice in around 1900 around gun regulation. A case like more where he did not look to practice at all including the practice of judicial review were reviewers and simply looked at the word legislature. How in particular does Justice Thomas decide the question of when it is relevant to history and what period of history should we look to . Guest guest anna moore in particular i think what he would say is that when the original meaning of the text is clear, the historical practice, whether at the time or much later cannot override that. I suspect that using the word legislature is there enough that later and in temporary practice it cannot override it. It seems to be history seems to be playing a couple different roads. On one side it sounds like it is doing something that is totally benign. And looking to practice at the time of ratification to figure out what people thought of the text that was ratified. And what it meant. At other times it looks like it is doing Something Different. The first major Supreme Court case, on the Second Amendment, it is to say the Second Amendment codified the existing right referring to the freedom of the people to keep a and bear arms. That right, that word, that phrase is a shorthand for the right of constitute by practices that lead up to ratification. That is one other role that practices might play. Another you mentioned liquidation and the idea that if the text is in the air, the practice is maybe even of later generations can be regarded as filling in gaps in the meaning. We stick by those practices unless we have a strong reason to override them the same way we do with judicial president s. Precedents. But i agree in some majority that history is playing a different role that is harder to justify by original his. Originalists. If we have a long history of regulating a certain way even if it is a history that erodes very late after ratification, that could justify that regulation that is similar to that today. But if we do not have a long history of a regulation of assert kind, then, the kind that is under review, the one that is under review is unconstitutional. I think the reason that makes sense, when they were using practices for evidence of original meaning and filling in the gap of meaning, we use practice, saying if they have not done it before then they cannot do it. There are all kinds of reasons that previous generations might not have passed a regulation beyond the idea that it was on because to show. Was unconstitutional. It created the need that they may have had political are other adjustments to go in a different direction. And they anticipate some of the points in the majority of the opinion. And it might look a little bit different if we deal with a regulation that addresses a new technology and so on. Or the social problems that were not apparent in the past. I still think the idea of requiring a regulation to who has a longstanding history where history does not focus on the era of ratification is hard to ask lane. Hard to explain. Host very helpful. Thank you. To some of the different uses of history, all of you have identified and sometimes the justice would look to history to codify the Public Meeting meaning and other times they would be leading up to her ratification. Other times it is where the text is unclear. You expressed russians about using it as a straitjacket saying you expressed questions about using it as a straitjacket. Lets look at something that several of you identified. Justice t

© 2025 Vimarsana