Contrary to the Chief Justice’s Advice, Judge Sutton Cites Magna Carta (And Marbury)

November 6th, 2014

In his exposition of originalism, Judge Jeff Sutton cites Magna Carta.

If American lawyers in all manner of settings still invoke the original meaning of Magna Carta, a Charter for England in 1215, surely it is not too much to ask that they (and we) take seriously the original meaning of the United States Constitution, a Charter for this country in 1789.

Recently, the Chief said this was a no-no for briefs.

“If you’re citing Magna Carta in a brief before the Supreme Court of the United States, or in an argument, you’re in pretty bad shape,” Chief Justice Roberts said. “We like our authorities a little more current.”

Plus, he cites Marbury v. Madison–something I said lawyers should never do–among other landmark cases:

Many precedents gauging individual rights and national power, leading to all manner of outcomes, confirm the import of original meaning in legal debates. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173–80 (1803); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401–25 (1819); Legal Tender Cases, 79 U.S. 457, 536–38 (1870); Myers v. United States, 272 U.S. 52, 110–39 (1926); INS v. Chadha, 462 U.S. 919, 944–59 (1983); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–25 (1995); Washington v. Glucksburg, 521 U.S. 702, 710–19 (1997); Crawford v. Washington, 541 U.S. 36, 42–50 (2004); Boumediene v. Bush, 553 U.S. 723, 739–46 (2008); Giles v. California, 554 U.S. 353, 358–61 (2008); District of Columbia v. Heller, 554 U.S. 570, 576–600 (2008).

Though, I think Sutton’s points are well taken.