Jan 18, 2013


A cool new article in the Harvard JLPP titled “Pre-‘Originalism’” by some good friends, Lorianne Updike Toller, J. Carl Cecere, and Justice Don Willett. Here is the abstract:

The ongoing debate over Originalism begs the question of historical legitimacy. All sides have tried to claim that their preferred method of analysis has a stronger historical pedigree by attempting to show that their theory has been adopted by the ultimate constitutional arbiter — the United States Supreme Court. Yet scholarship on this topic has largely been selective and episodic, focusing narrowly on a few specific examples from a few famous Supreme Court cases. Furthermore, those who have studied anecdotal evidence have largely taken Justices’ claims at face value, without discovering whether the justices’ claimed and practiced methodology actually aligned. And research is all-too-often overtly biased, ignoring any evidence that might contradict, or at least complicate, the analysis.

This article seeks to overhaul this debate, by analyzing the historical pedigree for various modes of constitutional interpretation using a systematized, quantitative and qualitative analysis of the Supreme Court’s cases of “constitutional first impression” — those occasions on which the Court has approached individual parts of the Constitution for the very first time. In hopes of compiling unbiased, randomized, and controllable data to help answer this question, we performed a quantitative, data-driven review of these 96 cases of constitutional first impression, which span the Court’s nearly 220-year history from 1789-2005.

Our results showed that the historical Court did lay claim to relying on the intention of the Framers in their interpretation of the Constitution, placing them today in what would be the Intentionalist camp. Yet our qualitative and quantitative data undermines the Court’s claimed intentionalism, albiet for different reasons at different times. In the first century, the Court claimed to — but did not actually — rely upon Framing Intent as it is currently understood. Perhaps this was because the Court was using a common law method of interpretation, or because it had adopted a “Whiggish” view of the Constitution’s history.

In the second century, on the other hand, the Court did rely more upon specific primary Framing-era sources to support its supposed Intentionalism. Yet the Court also relied more upon secondary sources that complicate the picture, including many that demonstrate a trend towards Living Constitutionalism.

We therefore believe the conclusion that the Court adopted any form of Originalism before the modern advent of the term, to be wrong. It is not possible to say the Court actually engaged in Originalism until the Warren and Burger Courts. This is ironic, given that it was the Warren and Burger Courts that were most often accused of avoiding Originalist interpretation. But this was the era in which the Court finally started to make good on its commitment to relying on the intent of the Framers by citing to them and their documents with consistency and proportional frequency.

Although our study has focused only on cases of constitutional first impression, because it constituted a randomized, inclusive, and representative sample of the Court’s constitutional interpretive methodology over the course of its history, we maintain that our findings may be generalized.

I read an earlier draft of this article. It makes an important contribution to understanding what originalism was before there was “originalism.” In the past, I have described Justice John Marshall Harlan I as a “proto-originalist.”

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Jan 18, 2013

What questions does Justice Kagan have about Missouri v. Holland?

The Court just granted cert in United States v. Bond. Last year, Justice Kagan presided over a moot court at George Washington Law where she considered whether Congress can expand its own powers via a treaty (it focused on a First Amendment issue via Missouri v. Holland).

Kagan’s first question off the bat was whether the Court should overrule Missouri v. Holland.

Here is the summary of the facts:

Prentice v. Pitel

Petitioner Graham Detroit Prentice is a political activist who seeks to protect the integrity of the Constitution through a non-profit that Petitioner founded. Following September 11, 2001, Petitioner became increasingly concerned with Islamic extremism and began focusing his organization’s efforts on protesting against it. Petitioner had little success until 2004, when several members of Petitioner’s organization burned an image of an Islamic holy site during a protest in Washington, DC. Petitioner used the consequent media attention to establish his and his organization’s name and message, began organizing such extreme protests as a matter of course, and initiated what he claims is a successful “Sharia Prevention Campaign” in 2006.

Two years later, the United States and 41 other nations entered into the Convention on Religious Tolerance. This treaty was a response to a series of terrorist attacks in retaliation for offensive protests outside of Islamic holy sites, which threatened to lead to more protests and even more violence. The treaty required signatories to criminalize offensive protests outside of Islamic religious sites during prayer hours. After much international pressure, the treaty was ratified and the International Responsibility and Leadership Act (IRLA) was passed by Congress to bring the United States into compliance. The IRLA implements many of the treaty’s policies but does not precisely mirror it. Specifically, the IRLA subjects anyone who burns or otherwise destroys a religious artifact immediately outside of a religious site during prayer hours to escalating civil fines.

Petitioner violated the act during a protest on July 5, 2009, when he splashed red paint on copies of the Koran outside of a mosque. Respondent Benjamin Pitel, U.S. Attorney for the District of New Columbia, then sent Petitioner a letter warning him that his next violation would result in an enforcement action. After receiving the letter, Petitioner planned, advertised, and carried out another protest on August 1, 2009, where he burned Korans outside of a mosque in New Columbia during prayer hours. After notification of the violation and some settlement negotiations, Petitioner filed an action seeking to have the IRLA declared unconstitutional as a violation of the First and Tenth Amendments to the Constitution.


I. Whether the U.S. Court of Appeals for the Thirteenth Circuit erred in concluding that the International Responsibility and Leadership Act does not violate the Tenth Amendment of the Constitution?

II. Whether the U.S. Court of Appeals for the Thirteenth Circuit erred in concluding that the International Responsibility and Leadership Act does not violate the Free Speech Clause of the First Amendment of the Constitution?

H/T Charles K.

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Jan 18, 2013

We Have The Audio: What Did Justice Thomas Say?

Here is the world-famous colloquy where Justice Thomas finally spoke.

Listen for 0:30 for the fun stuff. Listen earlier for context. Thomas speaks at 0:45. “Well, he did not.”

So what did he say? It seems that Justice Sotomayor attempted to talk at the same time as Justice Thomas. All I could make out was “Well, he did not.”

JUSTICE SCALIA: She was a graduate of Yale law school, wasn’t she?

MS. SIGLER: She’s a very impressive attorney.

JUSTICE SCALIA: And another of his counsel, Mr. Singer — of the three that he had — he was a graduate of Harvard law school, wasn’t he?

MS. SIGLER: Yes, Your Honor.

JUSTICE SCALIA: Son of a gun.

JUSTICE THOMAS: Well — he did not -­ (Laughter.)

MS. SIGLER: I would refute that, Justice Thomas.

JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who’s graduated from Harvard and Yale?


JUSTICE SOTOMAYOR: Or even just passed the Bar?


After Thomas spoke there was uncontrollable laughter from throughout the Court. I don’t think they were laughing at Sotomayor’s “serious question.” I think I heard Kagan matter, or Harvard somewhere in there.

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Jan 18, 2013

Supreme Court Grants Cert In Bond v. United States

Orders are here. This is the second time up for Bond. My thoughts on Bond are here and here.

H/T Lyle.

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Jan 18, 2013

Supreme Court Clerk General William K. Suter Will Be the South Texas College of Law Commencement Speaker

101509_William-Suter_Clerk_200I am absolutely ecstatic that General Suter is coming to speak at our graduation! May 25, 2013 at 11:00 a.m. at the George R. Brown Convention Center.

If you are in Houston, please put it on your calendar.

My thoughts on General Suter’s retirement are here.

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Jan 18, 2013

Constitutional Money

I knew that Salmon Chase, the former Secretary of the Treasury, and Chief Justice of the United States was on a $10,000 bill.


But I did not know that Chief Justice Marshall was on a $500 bill!


The back of the Marshall note shows De Soto’s discovering the Mississippi River.


Well, the Mississippi River was certainly “discovered” before, but in terms of Johnson v. M’Intosh, that is accurate.

While we are on the topic of constitutional money, at one point James Madison was on the $5,000 bill.


The back of the Madison note shows the resignation of General Washington at Annapolis.


And, while we are on the topic, the flip-side of the $2 bill is the signing of the Declaration of Independence.


Interestingly, an earlier version of the $2 Bill had Monticello on the back.


The other non-Presidents on currency are Franklin ($100) and Hamilton ($10).

Photographs from Wikipedia.

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Jan 18, 2013

JoshBlackman.com Sells Out Barclays Center?

WordPress generates funny reports to put traffic in perspective:

19,000 people fit into the new Barclays Center to see Jay-Z perform. This blog was viewed about 110,000times in 2012. If it were a concert at the Barclays Center, it would take about 6 sold-out performances for that many people to see it.

And perhaps fittingly, here are the keywords people used to find my blog.

Some visitors came searching, mostly for seaside heights hurricane sandy,seaside heights before and after,abigail fisher, and josh blackman.


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Jan 18, 2013

Lance Armstrong Pulls A Scalia, Looks Cheating Up In Dictionary, Finds Favorable Definition

Who knew Lance was a textualist!

Winfrey then asked, “Did you feel in any way that you were cheating?” He said, no, “That’s the scariest,” and went on to explain that he had even looked up the word cheat in the dictionary once to find out the exact meaning. He found it to be, “gaining an advantage on a rival or foe,” and convinced himself that he was not cheating because he considered cycling to be a level playing field back then, with all the top riders using drugs.

A quick Google search did not find that definition in any dictionary.

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