Here is an updated version on SSRN of my article forthcoming in the Chapman Law Review’s symposium on libertarian legal thought. In this draft, I reworked the ending to focus on my recent post on the subtle role that originalism plays even when originalist arguments are not advanced.
Here is a flavor, with my most sincere apologies to Judge Wilkinson for this “cosmic constitutional theory”:
Because we are dealing with the “New Federalism,” where unlike Heller or McDonald, it is infeasible to advance originalist arguments in the absence of countervailing precedents, in NFIB, originalism was only needed to have an indirect effect. It was clear that the ACA was not supported under the original understanding of the commerce clause. Barnett and others conceded this at the outset, but argued not in terms of originalism. Rather they argued why this case goes further than the New Deal precedents (this is really what “unprecedented” means), and how the government failed to meet its burden of justification. But, the years of originalist scholarship demonstrating how the commerce clause was originally understood imposed the burden on the government to demonstrate this further departure from 1787. In other words, the originalist scholarship placed a mild pull on the star, and created the sense that perhaps it should not be pulled in the other direction. The Chief Justice’s vote wasn’t the only thing wobbling in NFIB.
In short, the potency of originalism cannot be measured simply by assessing whether originalist arguments are advanced, and ultimately accepted in any given case. Originalism’s potency can be seen as a factor of what view of federalism and liberty the Court is laboring under. Originalism lays the intellectual groundwork for understanding how a particular law deviates from what has come before. Sensing how that theory pulls and tugs on our constitutional lodestar provides enough of an indication that an act of Congress has gone too far, and there needs to be an adequate justification.
So, in this sense, with the “New Federalism,” originalism’s gravitational pull tugs the Constitution towards original meaning, even if originalism is not directly advanced in a case. Originalism is the hidden force that causes other things to shift, even if we don’t directly see why. This is why “this far and no further” works, even when originalist arguments need not be made. Thus, scholars need to continue developing originalism so that the force, the pull, the tug remains to keep our Constitution shining bright and strong.
I will be presenting this paper at the Georgetown Constitutional Law Colloquium on December 2. I am really looking forward to receiving great comments and feedback there.