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Hot off the presses from the Texas Law Review See Also: Originalism at the Right Time?

In Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make an unconventional claim—that the Fourteenth Amendment, as it was originally understood, prevents the government from enforcing laws that discriminate on the basis of sex. The authors fault Justices Ginsburg and Scalia, and everyone else for that matter, for failing to recognize two demonstrable things: first, that Section One of the Fourteenth Amendment was from its inception a ban on all systems of caste; and second, that the adoption of the Nineteenth Amendment in 1920 affected how we should read the Fourteenth Amendment‘s equality guarantee.

In this Response, I focus on the second, and in my estimation, more controversial claim: that the adoption of the Nineteenth Amendment in 1920—fifty-two years after the ratification of the Fourteenth Amendment—should affect the way the Fourteenth Amendment‘s equality guarantee was originally understood. It is incontrovertible that subsequent amendments to the Constitution affect earlier provisions. However, to contend as Calabresi and Rickert do, that the adoption of the Nineteenth Amendment should impact the original understanding of the Fourteenth Amendment—as an originalist, rather than as a popular constitutionalist argument—strikes me as somewhat anachronistic. Is this originalism at the right time?

To ascertain the original public meaning of a text, one should consider how the provision was understood at the time of its enactment. This task requires the selection of the proper time in which to seek the text‘s semantic content. Though there seems to be one important chronological limitation, both logically and jurisprudentially: any such inquiry would have to be temporally constrained, at the latest, by the date of the enactment of the law.

In many respects Calabresi and Rickert’s methodologies bear many similarities to Jack Balkin’s Living Originalism, in that both focus on the original meaning of a law but look to events that postdate the law’s enactment to give the text legal effect. This approach echoes a broader trend in originalism discerned by then-Solicitor General Kagan, who said today “we are all originalists.” Though we may all be originalists, we all do not do it the same way—in fact, some of us don’t even do it at the right time. I close by analyzing what is originalism when everyone is an originalist in his or her own way—especially when some of the originalism is unmoored from things that are original and rely on occurrences that postdate the enactment of the law.

Courtesy of Dan Rice:

Apparently not. Only Scalia and Ginsburg are game:

Scalia said Ginsburg is “my best friend on the Court,” a friendship that began when they both served on the U.S. Court of Appeals for the D.C. Circuit. Ginsburg was the only judge, he said, who made concrete suggestions to him about how to improve his opinions. When he tried to do the same for other colleagues, Scalia said, “they did not appreciate it.”

This interview Barnett gave seems to say so:

Barnett characterized his ongoing constitutional challenge to the individual mandate as a rather lonely one when he took it up 2 ½ years ago after lawyer David Rivkin raised the issue in a Wall Street Journal op-ed piece and launched an online legal-blog debate.

“There was another law professor on that blog who posted a very snarky ‘Nobody can be serious about a constitutional challenge here,’” Barnett said. “And I just sort of decided, ‘Well, maybe I should say something.”

Since then, Barnett said, his argument has gained constant momentum, culminating in a historic examination of the issue by the Supreme Court last month. The Justices gave attorneys more than six hours for oral arguments over three days—the most time they’ve allowed for oral arguments since their consideration of Miranda v. Arizona in 1966.

This time, the justices are reviewing Department of Health and Human Services v. Florida, and NFIB v. Sebelius  in which the 11th U.S. Circuit Court ruled in January, 2011 that the mandate falls outside the federal authority contemplated by the commerce clause in the Constitution.

One of the central issues examined during the Supreme Court hearings was whether the Anti-Injunction Act, which prohibits taxpayers from challenging a tax until it goes into effect, applies to the health-mandate requirement in the Affordable Care Act.

The argument that the Anti-Injunction does apply—and therefore renders the constitutional challenge moot—is widely held in legal academia, Barnett contended.

“It’s an argument that’s so beloved by professors, but there was not a single justice who was even interested in the tax-power argument in six hours of oral presentation,” he said. “If any justice liked the tax-power theory, you would have expected to hear from her or him during the discussion of the Anti-Injunction Act.”

“The justices were debating among themselves about why it didn’t apply. There was nobody saying it did apply.”

Barnett said he is cautiously optimistic about how the justices will rule. He said he had the sense from the justices at oral arguments that they may believe the Affordable Care Act goes too far.

“If it were actually accepted by the Court, they would basically be saying that Congress has unlimited power to do whatever they want as long as they limit these sanctions to a monetary fine collected by the IRS,” he said. “That would be a startling claim of power.”

“This is a claim of power by Congress that is literally unprecedented. Never before in history has Congress required individual citizens to do business with private companies as a means of exercising its commerce powers.”

He pointed out that just because something is unprecedented, that doesn’t mean it’s necessarily unconstitutional.

What it does do is render it a case of first impression, “which means that it’s highly unlikely that prior precedents have directly addressed the issue of whether this is OK or not. That’s exactly the reason why this has always been a close case on the merits, and not an easy case.”

The research team, led by Peter Kahn, points out that the morality (or perceived morality) of robots is going to get more and more relevant as they become cooks and maids and drivers and soldiers and friends and otherwise integrate themselves more tightly into our lives. With this in mind, it’s more important than ever to understand what kind of relationships we’re capable of forming with human-like machines, especially since robots now, or will soon, have the ability to inadvertently hurt us:

Consider a scenario in which a domestic robot assistant accidentally breaks a treasured family heirloom; or when a semi-autonomous robotic car with a personified interface malfunctions and causes an accident; or when a robot-fighting entity mistakenly kills civilians. Such scenarios help establish the importance of the following question: Can a robot now or in the near future-say 5 or 15 years out-be morally accountable for the harm it causes?

The HINTS studies approach these questions from several perspectives, including how adults (or, at least, undergrads) deal with a robot who makes a mistake, and how children react to a robot getting punished. And whether or not you have the slightest interest in the academic angle here, the videos of the experiments (showing participants and robots arguing) are kind of hilarious.

This story from Gizmodo reflects some research I learned about at the We Robot conference. We anthropomorphize animals. We do it to robots as well.