Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
Recently, the Originalism Center at the University of San Diego held its Seventh Annual Originalism Works-in-Progress Conference. Each year we videotape all of the proceedings for those who are interested in viewing the conference. This year’s proceedings are here (link no longer available).
The following papers were given:
1. Will Baude (Chicago) and Stephen Sachs (Duke), The Law of Interpretation
Commentator: Randy Barnett (Georgetown)
2. Jamal Greene (Columbia), Originalism, Constitutional Rules, and the Separation of Powers
Commentator: Michael McConnell (Stanford)
3. Kurt Lash (Illinois), The Amendment, the Act, and the Article: Reconstructing the Historical Relationship Between the Fourteenth Amendment, the 1866 Civil Rights Act and the Comity Clause of Article IV
Commentator: John Harrison (Virginia)
4. John McGinnis (Northwestern) and Michael Rappaport (San Diego), Defending Original Methods
Commentator: Chris Green (Mississippi)
5. Jeffrey Pojanowski (Notre Dame) and Kevin Walsh (Richmond), Enduring Originalism
Commentator: Mitch Berman (Penn)
6. Larry Solum (Georgetown), The Constraint Principle
Commentator: Dick Fallon (Harvard)
7. John Stinneford (Florida), The Original Meaning of Cruel
Commentator: Donald Dripps (San Diego)
There were a variety of interesting papers given. Two sets of papers offered competing views of the interpretive rules that are used to determinine the original meaning. While the papers ended up largely defending the same interpretive approach, they did so for different reasons. Will Baude and Stephen Sachs argued that the legal interpretive rules that should be employed to discern the Constitution’s original meaning should be followed because they represent the positive law at the time of the Constitution. John McGinnis and Mike Rappaport argued that the legal interpretive rules should be used because that is the best way of determining the actual meaning of the legal document that is the Constitution.
Larry Solum provided a normative argument in favor of following the original meaning. In the past, Larry has mainly focused upon interpretive questions – in particular, how to determine the original meaning of the Constitution. In this paper, Larry offers normative reasons why one should follow the original meaning. In particular, he argues that following the original meaning is supported by both the rule of law and legitimacy.
Two other papers provided new arguments for originalism. Jeffrey Pojanowski and Kevin Walsh argued that originalism is supported by natural law, whereas Jamal Greene, a critic of originalism, provided a limited argument for a limited type of originalism.
Finally, two of the papers addressed the original meaning of particular clauses. Kurt Lash, who has written a great deal about the 14th Amendment Privileges or Immunities Clause, explored the legislative history of the Civil Rights Act of 1866 in an effort to understand the Due Process Clause of the 14th Amendment. And John Stinneford, who has written several articles about the Cruel and Unusual Punishments Clause, gave a paper that focused on the original meaning of the term “cruel” in that clause.