Archives For Law
On this Memorial Day weekend, I call on all California attorneys to join me in renewing our sworn oath to support the Constitution of the United States,
“For our Constitution remains, as William Gladstone, the great British statesman once described it, ‘the most wonderful work ever struck off at a given time by the brain and purpose of man.'”
Edwin Meese, III, 75th Attorney General of the United States
The Moral Foundations of Republican Government (pdf), September 1986
“When he took on Dick Heller’s case, it likely seemed like a lost cause. A good cause, perhaps, but an uphill fight the whole way. Up the steepest hill you can find. The steepest hill that never ends. Yet Alan Gura took it on, and because he did, the Supreme Court reversed its view of the Second Amendment to the Constitution, restoring it to a fundamental right, in District of Columbia v. Heller.
For his efforts, District Court Judge Emmet Sullivan smacked him. From the Blog of Legal Times:
It took six years for the attorneys for Dick Heller to win the D.C. resident, and all Washington residents, the right to possess handguns in their homes. The U.S. Supreme Court made its landmark decision in District of Columbia v. Heller in 2008.
It’s taken another three years for those attorneys, after a lengthy court fight with the District of Columbia, to be awarded their attorney fees.
In a ruling released Friday, U.S. District Judge Emmet Sullivan in Washington awarded Heller’s attorneys, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, just over $1.1 million, about one-third of what they had requested.
Continue reading at Simple Justice.
“’The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’”
Justice Robert Jackson quoted in Timothy Sandefur’s comment on “Liberty and federalism in the Individual Mandate cases“.
Thanks go to Gerald J. Russello, editor of The University Bookman, for this excellent review of Constitutional Originalism: A Debate, by Robert W. Bennett and Lawrence B. Solum, in which Messrs. Bennett and Solum present what Mr. Russello describes as “state-of-the-art cases for the two main schools of constitutional interpretation” – originalism and “living constitutionalism.”
The battle line in originalism is between those who believe that the Constitution means what it says, and those who believe that the Constitution means what they say.
The Witherspoon Institute has selected the occasion of Martin Luther King, Jr. Day to “announce a public preview of a new online academic resource dedicated to natural law and the American tradition.”
The new website is Natural Law, Natural Rights and American Constitutionalism.
“The aim of the Witherspoon Institute’s project is to create a nonpartisan, educational website on Natural Law, Natural Rights, and American Constitutionalism, which will serve as an online resource center for students, teachers, and educated citizens to learn about the intellectual traditions of natural law and natural rights, particularly within American political and constitutional history.”
The Center for the Study of Constitutional Originalism at the University of San Diego School of Law has launched “The Originalism Blog” to be devoted to cataloging and reviewing developments in scholarship and interest in originalism.
“Originalism”, in the words of the Center for the Study of Constitutional Originalism, “is the view that the Constitution has a fixed and knowable meaning established at the time of its enactment.”
Originalism, in other words, is the idea that the words of our Constitution mean what they say, either what the drafters of the Constitution meant them to say when they wrote them, or what the ratifiers of the Constitution understood them to say when they voted to approve them.
But these are only a few of many possible beginnings to an understanding of the influence of originalism upon Constitutional interpretation.
Hence, the need for “The Originalism Blog.”
Connstitutional originalism is the point to which “living constitutionalsim” is the counterpoint, rejected by U.S. Supreme Court Justice Antonin Scalia in the following exchange with Peter Robinson of The Hoover Institution:
“The Constitution that I interpret and apply is not living, but dead.”
Is our Constitution living, is it dead, or is it a dead letter?
If I’ve piqued your interest, I encourage you to take a look at Legal Theory Lexicon 019: Originalism, by Lawrence B. Solum.
And if these questions are as interesting to you as they are to me, you’ll want to bookmark The Originalism Blog and return to it often.