On November 17th, 2014, Harvard Law School presented the inaugural Justice Antonin Scalia Lecture. As Dean Martha Minow of Harvard Law School, explained, an anonymous donor endowed the lecture “to promote and advance understanding of the founding principles and core doctrines of the United States Constitution.”1 Judge Frank H. Easterbrook presented the first lecture, titled “Interpreting the Unwritten Constitution.”2 A close friend and ideological colleague of Justice Scalia, Judge Easterbrook presented a concise yet comprehensive explanation of originalism as a theory of judicial authority. This is a review of that lecture.
Reviewing this lecture presents an opportunity to capture originalism in the middle of an important change. Most modern originalists accept that the meaning of text can change over time. As a result, many are abandoning strict reliance on text and, in exchange, some are seeking structural measures of original intent. Easterbrook’s lecture is an example of this shift. It offers a way to make substantive constitutional decisions based on the Framers’ original view of the separation of powers as inferred from the text, rather than based on the original meaning of any specific constitutional provision.
Perhaps because it is exemplary, his approach presents problems, both new and old. I identify two in particular. First, Easterbrook’s argument still does not account for constitutionalized individual rights, or how a judge applying his approach should handle precedent enshrining those individual rights. This has been a persistent problem for originalists of all stripes. Second, and more fundamentally, Easterbrook’s approach doesn’t appear to be originalism anymore. As originalists depart from text, they depart altogether from original intent. Easterbrook’s application of his ideas to three unwritten constitutional doctrines—the intergovernmental tax immunity, anticommandeering, and sovereign immunity doctrines—drives this point home, illustrating that the Framer’s original intent about the content of any doctrine, even doctrines that existed in the Framer’s times, matters very little to the judicially active, majoritarian approach offered by Easterbrook in this lecture.
But maybe originalism will benefit from this change of character. Easterbrook’s approach, by departing from text and original intent, justifies its substantive doctrinal goals with reasoning similar to other modern approaches to constitutional interpretation—reasoning about whether something is a good or desirable way to govern given the modern expediencies of American society. In contrast to the no compromises approach originalists have taken for many years, Easterbrook’s approach signals originalism’s move toward a more forward looking, participatory role in ongoing debates about the Constitution, the courts, and modern republican democracy.
Part I of this review presents Judge Easterbrook’s clear yet careful explanation of a modern originalist approach to judicial review. Part II offers two criticisms of this approach, noting that Easterbrook’s originalism still does not account for individual rights and generally doesn’t seem to be originalism at all. Part III elaborates on this second criticism, using Easterbrook’s discussion of the intergovernmental tax immunity, anticommandeering, and sovereign immunity doctrines to show how little original intent has to do with Easterbrook’s approach to the content and substantive application of a particular doctrine. Finally, I conclude with my view that this change may give originalists common ground with other modern, relativist approaches to the Constitution and foster discourse rather than further entrench competing theorists.
Originalists believe that judges must interpret the Constitution to mean what the Framers believed it to mean at the time of drafting, rather than any more modern interpretation. The same applies to statutes; statutory text only means what the enacting Congress thought it meant, and not what we think it means at any other point in time. This theory of law has a contractual feel; the authors struck the constitutional or legislative bargain on particular terms, and judges must honor those terms despite the passage of time. This approach is different than, but related to, textualism, which is the idea that the text of the law is the best evidence of what the lawmaker meant. Justice Scalia is probably the most famous originalist and textualist; Judge Easterbrook is probably the second.3
In contrast, the legal thinkers on the other side think of the Constitution (and laws, to a lesser extent) as a living document. The idea is that the Framers could not have considered the challenges we face today, so either the Framers’ original intent is not controlling in applying the Constitution to modern challenges, or the Constitution’s text alone is not capable of supplying how the Framers’ would have intended the courts to answer every constitutional question presented to judges today.4 In contrast to originalists, these living constitutionalists use concepts like the spirit or gestalt of the Constitution—everything from text, to context, to principles of liberty and justice—to guide their interpretation of the Constitution and laws. Unsurprisingly, this is different from, but related to, the interpretive practice of using all sources (including, but not limited to, the text) to determine what the lawmaker meant.
Originalism and textualism started as critiques of living constitutionalism and broadly inclusive interpretative approaches.5 The former said the latter were adrift and unprincipled because they had no real rules. With no rules, the living constitutionalists were not judging; they were making the law rather than following the law. The obvious retort was to ask the originalists to justify themselves. For example, accepting that the Founders were not thinking about same-sex marriage, how does your originalist view allow for a more principled way of deciding that case than a living constitutionalist approach?
Judge Easterbrook’s lecture is a good example of the originalists’ ongoing answer. His account is exemplary of those modern originalists who acknowledge that there are certain cases the Founders did not contemplate, and thus situations where no original answer exists, but who maintain that the original understanding of the Constitution is still controlling because it provides a framework for who is, rather than how, to decide these tough, novel cases. Namely, legislatures are supposed to solve these problems, and the Constitution’s structure prohibits federal courts from adjudicating cases where there is no controlling written law, constitutional or otherwise. Fundamentally, this justification for originalism is a separation of powers argument, and it relies on the structure of the Constitution rather than the content of any textual provision.
Thus, Easterbrook’s presentation of this argument starts with the constitutional source of judicial review, which is a challenge because the Constitution contains no written power of judicial review. Rather, as Easterbrook puts it, judicial review is “just an inference from constitutional structure,” which is both the great mystery and power of Marbury v. Madison.6He explains, all political actors—judges, legislators, and administrators—are sworn to uphold the Constitution and laws in one way or another. It is the courts’ unique role within the separation of powers to determine the content of the Constitution and laws, which “prevails” over the other branches because the Constitution and laws binds all branches equally by oath.7 As Easterbrook puts it, “[t]o have identified the rule is to identify the reason why all must obey.”8 Thus, “judicial review under Marbury,” meaning the extent of the judiciary’s authority in relation to the other branches, “is a search for rules.”9
The corollary that follows is the important point for the interpretive theory: “If the age or generality of a text frustrates the search for a rule, then it also defeats a claim of judicial power.”10 This is the keystone of Easterbrook’s originalist argument: If there is no rule, then there is no judicial authority because the only role of judges is to interpret rules, not to make them. There is no constitutional authority for judges to engage in living constitutionalism.
Rather, “[w]hen the living must chart their own course, the question is outside the domain of judicial review,” which is to say, the question is one for the legislature.11 “[W]hen the Framers did not create a rule, when the issue was novel, or when the original interpretive community cannot be recovered reliably, we have neither judicial review nor the feared dead hand, but democracy. That is the core of the Constitution: Modern issues are decided by elected representatives.”12
The first two “when’s” are relatively unremarkable in the originalist canon and are functionally synonymous. When there is no rule to apply or the case is novel such that no existing rule can apply, judges have no authority to judge. The third circumstance, “when the original interpretive community cannot be recovered reliably,” is an important and pragmatic point worth unpacking.
So judges can only apply written rules, but rules (especially constitutional ones) are notoriously vague. How do we even know what the existing rules mean and which cases they apply to? For example, what does due process of law mean and when do we use it? Easterbrook sympathizes: “Recovering the original meaning is much harder for us than it was for Chief Justice Marshall,” because Marshall lived in the day of the Framers, meaning he was among the “original interpretive community” of the Constitution and could speak naturally and confidently about what the document meant.13 In contrast, Easterbrook explains that it might be impossible for modern-day judges to recover the Founders’ or an enacting legislature’s original meaning, and there is nothing to prevent modern judges from facing that impossibility often or all the time. Here Easterbrook invokes philosopher-of-language Ludwig Wittgenstein, applying the philosopher’s conclusion that “[a] text does not contain any rule that is not actively addressed and resolved by the authors, and understood by those who receive the texts . . . . When [the original] community dies, the meaning of words can be lost.”14 If modern eyes reading aged texts can result in opposing perspectives, which often, if not always, happens, how can we know who is right? We can’t, Easterbrook says, because only the authoring generation is privy to the contexts and nuance of that time.15
This admission appears, and to a certain extent is, an unavoidable death spiral for text-based approaches to the limits of judicial authority. Taking Easterbrook’s application of Wittgenstein to legal texts as valid, not only are there some texts where we simply can’t recover the original meaning, but that class of uninterpretable texts will get larger over time as enacting generations die and language naturally evolves. Laws do not expire with their enactors, and thus we are left with a growing body of law where we not only do not but cannot know the original meaning of those laws when trying to apply them to modern life. Originalism as an interpretive tool—and, to the extent that original meaning limits judicial power, the judiciary—gets increasingly less useful over time.16
But admitting to the subjectivity of text is constructive too; it is perhaps one of the most important steps originalists can take to stay relevant. The inherent weakness of text and its meaning to stand the test of time is, and has been, the Achilles heel of originalist approaches to law. Originalists’ ability to overcome this problem would solve one of the most facially difficult aspects of reliably applying originalism as an interpretive theory.
Here’s how Easterbrook does it. He says we find the answer in Chief Justice Marshall’s second hit, McCulloch v. Maryland: Additional powers can be inferred from the explicit powers of the Constitution by the political branches rather than the judicial branch.17 For example, Congress can explain due process in a particular circumstance, or can enact a law based on its interpretation of due process, and the judiciary is bound by the Constitution to support it. Likewise, Congress can delegate interpretive authority to the Executive, whose interpretation, so long as it remains within the boundaries of the delegation, must be supported by the judiciary. Thus, we still have an expanding, modern Constitution with judicial restraint, or “legislative latitude,” as Easterbrook calls it.18 In a rhetorical flourish, he says that Congress (and by delegation, the Executive) can act pragmatically because they have the necessary and proper clause, whereas the courts cannot act pragmatically because there is no judicial review clause in the Constitution.19 Judicial creativity was never part of the Constitutional bargain, at least as well as we can read it today.
To summarize, Easterbrook explains that judicial power itself is limited to the original meaning of legal texts. Where there is no rule to apply, either because (1) there is no text, (2) the case is novel such that no existing text is applicable, or (3) we don’t know the original meaning of an existing text that might be applicable, then courts have no power to adjudicate the case. In contrast, when a legislature, or an executive by delegation, interprets an existing text to apply to a novel circumstance, it is a court’s duty to uphold that legislative interpretation because of the Founder’s original understanding of the separation of powers, as inferred from the structure of Constitution.
Easterbrook’s concise account of judicial power reveals at least two important qualifications to this modern originalist approach.
First, originalism still has not accounted for individual rights; specifically, judicial protection of political minorities from the majority. A student presented this problem to Easterbrook as a question after his lecture and Easterbrook’s lack of direct response was telling:
His answer, of course, avoids the question. Except in rare circumstances, legislatures don’t create minority rights because the minority is the minority and the majority rules. This is especially true with regard to marginalized individuals who have no real remedy in a popular legislature. Isn’t that a problem? Many think it is and believe that the Constitution encompasses some fundamental, unwritten, and judicially enforceable protections for minorities from majority rule, such as in the case of voting protections.21 It is a well-known tension, yet originalism as presented by Easterbrook in this lecture still does not account for those protections.
This problem was drawn into sharper focus by another audience member, who asked whether the meaning of a text changes if the text was adopted undemocratically. An example would be when a generally applicable rule is adopted without the participation of a political minority subject to that rule.22 Easterbrook again demurred, acknowledging that “[t]his is a revolutionary nation,” and “[w]e always have to decide at any time whether we wish to be bound by these earlier documents,” but the way to decide is “either through the amending process or through revolution.”23 The courts, occupying neither the statehouse nor the Harpers Ferry Armory, have no role.
Beyond the bitter taste, this limitation presents an important practical problem: Individual rights exist in binding judicial precedent—what are originalists supposed to do with them? Judicial precedents are interpretable legal texts with original meaning, but if that text was adopted without proper judicial authority, does it bind future courts? Easterbrook’s approach, at least, doesn’t provide any guidance on this point.24 Originalists need to uniformly confront this problem as the approach continues to mature.25
Second, it’s necessary to ask whether Easterbrook’s originalism is really originalism anymore.26 By accepting the subjectivity of text, and relying instead on strong majoritarianism inferred from a particular view of the Constitution’s separation of powers, his originalism loses a bit of its objectivity and apolitical appeal. Pure majoritarianism is no more the settled original meaning behind the separation of powers as is footnote four in Carolene Products, and one must question whether an originalism of inference and unwritten rules has any greater claim to the Framers’ intent than any other contemporary arguments about what works best.27This is particularly important since those contemporary arguments include an ongoing judicial revaluation of minority rights in American representative democracy.28
It is beyond dispute that at least some among the founding generation assumed that unwritten, natural, or fundamental rights vested courts with some power to protect individuals and minorities from political majorities.29 Some constitutional historians argue that the Framers purposefully made the rights language in the Constitution vague, either to deliberately make those clauses capacious and relevant over time or as a way to compromise competing ideas among themselves.30 At a minimum, the now hundreds-year-old debate as to the Framers original intent regarding these broad rights provisions, or in setting out the tripartite structure of the Constitution, lands us squarely in Easterbrook’s deflating third circumstance—we can’t know the answer even if one exists because the original interpretive community is gone.31 By demanding adherence to original intent for everything except the concept of separation of powers that justifies that adherence in the first place, originalists stand on shaky ground.
It’s worth remembering the death spiral that originalists face once they accept that texts are subjective and meaning can be lost. To avoid its grasp, originalists need to divorce themselves from text; but without strict adherence to text, why does original intent matter anymore? As Scalia has noted, “once one departs from ‘strict interpretation of the text’ . . . fidelity to [legislative] intent . . . is a chancy thing.”32
This conundrum forces originalism, like any theory tempered by application, to move past its veneer of objectivity and confront the murkier forces at work underneath. The result, as Easterbrook’s discussion of specific doctrine shows, isn’t really strict adherence to text, or even to original intent, in application. A lot rides on what’s obvious, or reasonable, or just a good idea.
Easterbrook uses three unwritten doctrines—intergovernmental tax immunity, the anticommandeering doctrine, and sovereign immunity—to show that originalism can sustain legal doctrines that do not have direct roots in the text of the Constitution, as well as changes to those doctrines over time. Rather than text, Easterbrook shows that each doctrine has its roots in the Founders’ view of separation of powers—specifically, that the state and federal governments have absolute and separate spheres of power, which Easterbrook calls the “separation principle.”33 Because of this separation, neither government can tax the other, commandeer the other’s personnel, or authorize suits against the other in its courts.
Using examples from early cases, Easterbrook shows that this principle can change while still honoring original intent. And this is where things get chancy. For example, Easterbrook explains that making up the intergovernmental tax immunity was a valid extension of the Founder’s original separation principle because the aphorism “the power to tax is the power to destroy” was obvious to the founding generation.34 How do we know it was obvious? Easterbrook reasons because the McCulloch case was decided during the founding generation, and the case took that aphorism as true.35
Eventually the aphorism “the power to tax is the power to destroy,” came into tension with the maxim “what states can regulate, they can tax.”36 As the regulatory authority of both the state and federal governments expanded with the rise of American commerce, the boundaries of the tax immunity doctrine began to chafe. So courts made “modern revisions” to the tax immunity doctrine “based on [their] experience” with the Commerce Clause.37 By this point, these judges had left the founding generations behind because, through cases like Wickard, the “[b]elief that powers could be hermetically separated was found to be false.”38 So courts applied “the closest approximation,” which “turns out to be the neutrality rule.”39 And thus what was a rigid rule of total immunity from taxation became a flexible rule of neutrality, shown by taxing the other government’s entities like its own.
Easterbrook shows this move in each of these three unwritten doctrines. Once courts learned that “often states are better off doing things themselves than watching the national government create new bureaucracies,” the solution was to move from a strict rule of anticommandeering to a flexible rule of allowing voluntary state participation in federal programs.40 And once the states and federal governments started to tax each other and regulate cooperatively, courts traded the maxim “what states can’t tax they can’t make the subject of damages awards in litigation” for permitting suits against individual government agents in their representative capacity, thereby eroding each sovereign’s immunity.41
Easterbrook then argues that the shift away from McCulloch’s strict separation principle has not gone far enough in sovereign immunity doctrine. That doctrine, he says, should be restated as a neutrality rule to keep consistent with the intergovernmental tax immunity and anticommandeering doctrines. Additionally, aberrations like suits by the United States against states enforcing federal law and occasional federal authority to force state courts to entertain federal causes of action should be dumped.42 Notably, “whether or not Congress would take advantage of the opportunities created by restating all of the intergovernmental immunities as equal treatment doctrines, courts should be willing to do their part.”43
See what I mean? What brand of originalism allows, much less urges, courts to actively create doctrine, “whether or not Congress” acts, that is the “closest approximation” of a Founding principle which, through the court’s own experience and opinion, is “found to be false?”44
I think a hint of the answer is found in Easterbrook’s admonition that it “is fundamentally illegitimate for judges to take judicial review as established, and then use it to impose new restrictions on elected officials.”45 It’s less about the Framer’s intent in any specific situation and more about exercising judicial power only in a way that consistently empowers legislatures and disempowers courts, because that result is the closest approximation of how the Framers intended the courts’ relationship with the other branches.
Surprisingly, this hint helps make sense of the observation supra that, because texts lose meaning over time, a theory of judicial power tied to those texts becomes less useful over time. Easterbrook’s solution to that problem, it seems, is to think of judicial review as a constant fight to give all power to the legislature because the legislature is the only branch that can legitimately update the law. The depreciation of text is not a threat but a constant invitation to legislate. For example, when he says “[o]nce the judiciary learns that it can no longer say that the Constitution has an unbending rule against all intergovernmental taxation, judicial authority on Marbury’s own terms fades, and the democratic process has to be respected,” he really means that judicial authority should fade, so that the democratic process will be spurred to action.46
Easterbrook’s ultimate qualitative assessment of a law’s originalism then is not that the content of rules should reflect original intent, but that the statement of rules should be clear, so that the legislature can either follow them or overturn them. For example:
But so long as the result is still “a rule,” courts are free to change the content of rules or make new rules based on the court’s closest approximation of norms derived from prior judicial interpretation of, and the judge’s own inferences from, the text and structure of the Constitution, as well as other preexisting rules. That’s Easterbrook’s originalism.
There is nothing classically originalist about this approach, in the sense that we should interpret laws to mean what the enactor intended them to mean. This departure is probably a result of originalism’s time spent in the trenches. The hallmark of modern originalists is their acceptance of the subjectivity of text and the unavoidable fact that written meaning changes over time. No one knows this more so than judges, whose daily job is to apply old laws to new facts. By accepting that the content of law either changes or is made indecipherable by time, originalists are forced to abandon the content of a law as a way to measure its adherence to original intent. Instead they are forced to find a structural measure of original intent, which Easterbrook asserts is the extent to which a law enables legislative action. Keeping up appearances, Easterbrook uses two sacrosanct, founding era decisions to anchor his argument in the separation of powers, but ultimately trades constitutional text for judicial text and constitutional inferences.
As a result, originalism gets soft. Here’s one way of summarizing Easterbrook’s argument: Because, structurally, only the legislature can update the law, courts can’t update the law and should therefore actively disempower themselves to encourage legislatures to update the law, because that is what the Framers wanted. Midway the argument shifts from a categorical argument about judicial can’t’s to a more considered argument about judicial should’s. Yet this move is reinvigorating if not necessary because a categorical argument against judicial power has to compete with a long history of judges using that power—often with pretty good reason and always with unavoidable precedential weight—while still acting like it’s the only reasonable way to do law.
Originalism has always been that tough, categorical argument; but, at least as presented by Easterbrook, it might not have to be anymore. For example, even if the Founders didn’t think that the judiciary should exert its power to push decisions back into the legislature, that doesn’t mean Easterbrook’s approach to judicial power is a bad one; it might still be the best one. But it is now one of many possible approaches to judicial power, rather than the only right approach binding on us because it is in the Constitution. Without text, originalists find themselves on level ground with other modern approaches to judicial power.
The separation of majoritarian approaches to judicial power and original intent—as well as the descent of originalism into open debate about the purpose of judicial power—is visible elsewhere. Take, for example, Judge Sutton’s opinion in the same-sex marriage cases.48Leading up to Sutton’s case, the foundation, protection, and expansion of the right to marry had generally proceeded in the living constitutionalist tradition.49 Along the various threads of that line, most federal courts of appeal had found that state legislative or state constitutional prohibitions against same-sex marriage violate the U.S. Constitution.50 The Sixth Circuit, led by Judge Sutton, decided its case against that tide and ultimately nudged the Supreme Court to address the issue in Obergefell v. Hodges.51
Sutton declared his a “case about change” and a case that “ultimately presents two ways to think about change.”52 One is “whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue,” which, Sutton admits, is possible.53 “The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.”54
To be sure, Sutton toes the originalist line for a while. He adheres to what he finds is the original content of the Fourteenth Amendment—even though, “[y]es, the Fourteenth Amendment is old,” and “yes, it is generally worded,” and yes, “many people, many States, even some dictionaries, now define [the actual word] marriage in a way that is untethered to biology.”55 And he even touches on originalist interpretation of legal precedent regarding individual rights, relying on the 2013 Supreme Court’s conclusions as to what the 1967 Supreme Court was thinking when it used the word marriage in the Loving case.56 But that’s the end of it, and it doesn’t get him much farther than other courts or scholars that have addressed the issue.
Instead, as signaled early in his opinion, Sutton’s contribution to the discussion are his thoughts on change and judicial power. Specifically, that “[f]or all of the power that comes with the authority to interpret the United States Constitution, the federal courts have no long lasting capacity to change what people think and believe about new social questions.”57Rather:
Notice that the extra-textual nature of a right reinforces rather than requires a legislature-based approach. He goes on:
These are arguments about who should, not how to, decide novel constitutional questions. The Framers’ understanding of the separation of powers might be relevant to those ideas, but so is the modern condition of our separation of powers.
In context, Easterbrook’s account of originalism is of a time. It captures a transitional moment where originalists are letting go of strict, content-based reliance on text and hitching themselves to a majoritarian view of judicial power that, while not new, is gaining steam. As a result, Easterbrook’s account suffers some internal inconsistencies. But while such inconsistencies may be a sign that originalists are moving camp, it is not an indictment of where they are going. This move presents an opportunity to keep originalism relevant and engage directly, rather than indirectly, in current and modern debates about judicial power.
Drawing out Easterbrook’s conclusions elsewhere on this point illustrates my point:
* * *
Easterbrook’s explication of originalism in the inaugural Scalia Lecture has not yet bridged the gap embodied by those ellipses, between the modern, pressing need for “satisfactory” answers and the ancient, persistent desire for “right” answers in how to govern. Neither, for that matter, has anyone else. But by offering an account of originalism that moves away from an exclusive claim to original intent, Easterbrook’s lecture captures an originalism that’s moving toward a point of common ground with other modern constitutional theorists. On this ground, all may agree to pursue such answers, either right or satisfactory, with the character of discourse and compromise that is undoubtedly written into both the structure and spirit of our Constitution.
1. Frank H. Easterbrook, Interpreting the Unwritten Constitution 00:27, YouTube (Nov. 14, 2014), https://www.youtube.com/watch?v=yuAyxQr2LYE [http://perma.cc/3Y78-LT5K]. Because this Essay reviews a recorded lecture, citations are to the timestamps of the video recording cited above, attempting to pinpoint the start of where the idea or quoted text is presented.
2. Judge Easterbrook has refined these ideas over time. See, e.g., Frank H. Easterbrook, Alternatives to Originalism, 19 Harv. J.L. & Pub. Pol’y. 479 (1996) [hereinafter Easterbrook, Alternatives]; Frank H. Easterbrook, Originalism and Pragmatism: Pragmatism’s Role inInterpretation, 31 Harv. J.L. & Pub. Pol’y. 901 (2008), for early presentations of the ideas in this lecture.
3. See Jeffrey Rosen, Originalism and Pragmatism: False Friends, 31 Harv. J. L. & Pub. Pol’y 937, 937 (2008) (describing Easterbrook as “one of our most distinguished originalists”).
4. See, e.g., William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).
5. See, e.g., Peter J. Smith, How Different Are Originalism and Non-Originalism?, 62 Hasting L. J. 707, 711 (2011) (“[T]he modern American originalist movement arose in the early 1970s as a response to the controversial decisions of the Warren and Burger Courts. . . . In these critics’ view, the Warren Court, unconstrained by the Constitution’s text or original intent, had effectively been making, rather than interpreting, the law, an act inconsistent with the judicial role in a democracy.”).
6. 5 U.S. (1 Cranch) 137 (1803).
7. Easterbrook, supra note 1, at 17:02.
8. Id. at 16:54.
9. Id. at 17:10.
10. Id. at 17:12.
11. Id. at 17:22.
12. Id. at 18:09.
13. Id. at 18:31.
14. Id. at 18:53, 19:49.
15. Id. at 20:04–:56.
16. For further discussion of this idea, see Adam M. Samaha, Originalism’s Expiration Date, 30 Cardozo L. Rev. 1295 (2008).
17. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); Easterbrook, supra note 1, at 21:04.
18. Easterbrook, supra note 1, at 25:01.
19. Id. at 25:10–:27.
20. Id. at 1:16:07.
21. See also infra note 29 and accompanying text.
22. Easterbrook, supra note 1, at 1:20:22; see also John O. McGinnis & Michael B. Rappaport, Originalism and Supermajoritarianism: Defending the Nexus, 101 N.W. Univ. L. Rev. 1919, 1920 n.3 (2007) (“[W]e think it is a significant problem for originalism that women were excluded from the enactment process. But we pointed out that this is a less significant problem than the exclusion of African Americans, who may not even have been bound by the original agreement. We also provided reasons why the exclusion of women is less problematic: women’s interests were more likely to be represented by their relatives and many women at the time apparently did not think they should be included.”).
23. Easterbrook, supra note 1, at 1:20:51.
24. For what it’s worth, Scalia has infamously lectured that law school courses on individual rights are not teaching real constitutional law. See, e.g., Antonin Scalia, Foreword: TheImportance of Structure in Constitutional Interpretation, 83 Notre Dame L. Rev. 1417, 1417 (2008) (“In the days when I taught constitutional law, the University of Chicago Law School had two constitutional courses. One was entitled Individual Rights and Liberties, and focused primarily upon the guarantees of the Bill of Rights. The other (I forget the title of it) focused upon the structural provisions of the Constitution, principally the separation of powers and federalism. That was the course I taught—and I used to refer to it as real constitutional law.”) (emphasis in original).
25. Cf. John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 N.W. Univ. L. Rev. 803 (2009).
26. For the formalist readers: In a recent taxonomy, Lawrence Solum explained that, generally, “[o]riginalists agree that the communicative content or linguistic meaning in context was fixed at the time each provision of the Constitution was framed and ratified—the fixation thesis” and “that constitutional practice (particularly judging) should be constrained by original meaning—the constraint principle. The fixation thesis and the constraint principle constitute the core of contemporary originalist thought.” Lawrence Solum, Faith and Fidelity: Originalismand the Possibility of Constitutional Redemption, 91 Tex. L. Rev. 147, 156 (2012). Easterbrook departs from the fixation thesis by accepting the subjectivity of specific texts, although he asserts a fixed concept of separation of powers and justifies the constraint principle on his separation of power grounds. See also id. at 156 n.62 (discussing “framework originalists”).
27. See John Hart Ely, Democracy and Distrust 75–77, 86–87 (1980) (outlining a theory of constitutional interpretation based on footnote four of United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)).
28. See, e.g., Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 Yale L.J. 1141 (2002); Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747 (2011).
29. See, e.g., Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1145 (1987) (“[F]or American judges in the late eighteenth century, the sources of fundamental law were as open-ended as they were in English opposition theory. The colonists inherited a tradition that provided not only a justification for judicial review but also guidelines for its exercise. . . . [J]udges were to look to natural law and the inherent rights of man, as well as to the written constitution, in determining the validity of a statute.”). See also, e.g., M’Ilvaine v. Coxe’s Lessee, 6 U.S. (2 Cranch) 280, 315 (1805) (“They had a right to declare the colonists members of the new government on the clear republican principle that the minority must yield to the majority. But they had no intention of going further by illegally taking from them their birth-right—their capacity to inherit lands.”).
30. This group includes Easterbrook. See, e.g., Easterbrook, Alternatives, supra note 2, at 480 (citing Michael Perry, The Constitution in The Courts: Law or Politics (1994)); see generally H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 935–41 (1985).
31. Easterbrook might not agree with this though, as he hints that the structural secrets of the Constitution are “comprehensible to all who take the time to study.” Easterbrook, supra note 1, at 25:57. I am less certain, but I am also much younger.
32. Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 116–17 (2007) (Scalia, J., dissenting).
33. Easterbrook, supra note 1, at 43:56; see also id. at 27:20.
34. Id. at 28:55–29:45.
36. Compare id. at 27:53 (“power to tax is power to destroy”) with id. at 35:10 (“what states can regulate they can tax”).
37. Id. at 36:15.
38. Id. at 59:59; see also Wickard v. Filburn, 317 U.S. 111 (1942).
39. Easterbrook, supra note 1, at 1:00:09.
40. Id. at 38:39.
41. Id. at 44:13.
42. Id. at 50:41.
43. Id. at 51:54.
44. See supra notes 36–39 and accompanying text.
45. Easterbrook, supra note 1, at 52:17.
46. Id. at 36:32.
47. Id. at 41:00.
48. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
49. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”).
50. See generally Bostic v. Schaefer, 760 F.3d 352, 367 (4th Cir. 2014), cert. denied, 135 S. Ct. 308 (Oct. 6, 2014).
51. See DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 135 S. Ct. 1040 (Jan. 6, 2015).
52. DeBoer, 772 F.3d at 395, 420.
53. Id. at 420.
55. Id. at 403, 412. Nevertheless, he is able to drop the point because “[n]obody in this case, however, argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” Id. at 403.
56. Id. at 411.
57. Id. at 417.
58. Id. at 418.
60. Easterbrook, Alternatives, supra note 2, at 485, 486.