Volokh on Originalism at the Right Time

April 4th, 2011

I have been blogging for some time about a concept I have dubbed originalism at the right time–namely that when interpreting a right as applied to the states through the Fourteenth Amendment, the important temporal inquiry should focus on 1868, and not 1791.

Eugene Volokh, in his fascinating new draft artcile, titled, “The Freedom … of the Press,” from 1791 to 1868 to Now — Freedom for the Press as an Industry, or the Press as a Technology?” aludes to just this point:

Part III turns to how the ―freedom . . . of the press was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has plausibly suggested that an originalist analysis of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to 1791.16

FN16 See, e.g., Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145, 175–77 (2008); Sanford Levinson, Superb History, Dubious Constitutional and Political Theory: Comments on Uviller and Merkel, the Militia and the Right to Arms, 12 WM. & MARY BILL RTS. J. 315, 326–29 (2004); Stephen A. Siegel, Injunctions for Defamation, Juries, and the Clarifying Lens of 1868, 56 BUFF. L. REV. 655, 659–63 (2008).

As I wrote, along with Ilya Shapiro, in Pandora’s Box at page 52-53:

Originalism demands that the interpreter select the proper temporal locationin which to seek the text’s original public meaning. For example, interpreting the Civil Rights Act of 1964 based on how the public understands civil rightslaw in 2010 would be anachronistic and thus not originalist. Interpreting the Second Amendment based on how people understood its text in any year otherthan 1791—the year of its ratification—would be similarly unhelpful. The Supreme Court faithfully executed this strategy in Heller. But what about the right to keep and bear arms as applied to the states? Federal protection against state encroachments on individual liberty began with the ratification of the Fourteenth Amendment. 1868 is thus the proper temporal location for applying a whole host of rights to the states, including the right that had earlier been codified as the Second Amendment as applied against the federal government.259

This theory was in part based on a David Bernstein blog post. We wrote:

According to a theory advanced by Professor David Bernstein, in severalcases the Supreme Court has failed to conduct originalist inquiries at the righttime.261 Bernstein criticizes Justice Scalia’s opinions in the Crawford line ofcases, which interpret the original meaning of the Sixth Amendment’s ConfrontationClause as applied to the states. Instead of looking at the original publicmeaning of the Confrontation Clause in 1868, when the right was extended tothe states by virtue of the Fourteenth Amendment, Scalia erroneously andrepeatedly focuses on the meaning in 1791. Justice Stevens properly chastisesJustice Scalia in Heller for considering “postenactment commentary on theSecond Amendment . . . and post-Civil War legislative history” to ascertain themeaning of the Second Amendment in 1791. Justice Stevens notes that “theCourt’s fixation on the last two types of sources is particularly puzzling, sinceboth have the same characteristics as postenactment legislative history, which isgenerally viewed as the least reliable source of authority for ascertaining theintent of any provision’s drafters.”262 Such an approach is historically flawed, asit considers originalism at the wrong time.