Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 31, No. 3, Summer

A Critical Introduction to the Originalism Debate
Since its founding in 1982, the Federalist Society and many of its members have promoted originalism as the correct philosophy to use in interpreting the Constitution. The originalism debate is of central importance to the Society's mission of promoting...
A Government of Adequate Powers
I am about to commit an act of unmitigated blasphemy for a Federalist Society member: I am about to attack most Federalist Society members' views of federalism. So, first let me establish my credentials: I am most liberals' nightmare constitutional...
A Pragmatic Defense of Originalism
Originalism and pragmatism are uneasy companions. This Essay will attempt to make them friends. The usual view is that pragmatic interpretation has the essential virtue of ensuring that the consequences of legal decisions will be good. (1) Originalism,...
Avoiding Mead: The Problem with Unanimity in Long Island Care at Home, Ltd. V. Coke
One of the central questions in administrative law is the appropriate level of deference courts should give to agency interpretations of statutorily conferred authority. The Supreme Court announced its most recent major doctrinal development in this...
Constituting the Constitution: Understanding the American Constitution through the British Cultural Constitution
Reference is often made to the legal philosophical, and historical progenitors of the American Constitution in ideas derived from Great Britain, such as the writings of John Locke or William Blackstone, and familiar documents like the Magna Carta or...
Foreword
In introducing these essays devoted to the philosophy of constitutional interpretation known as originalism, it would be foolish to pretend that that philosophy has become (as it once was) the dominant mode of interpretation in the courts, or even...
No Taxation without Separation: The Supreme Court Passes on an Opportunity to End Establishment Clause Exceptionalism: Hein V. Freedom from Religion Foundation, Inc
The Supreme Court generally denies plaintiffs standing to challenge the constitutionality of government expenditures if their only basis for standing is that they pay taxes. (1) The Court, however, has created one exception: for taxpayers challenging...
On Text and Precedent
Until recently, the conversation on originalism and the role of precedent has been dominated by two main camps, which I will call unoriginal originalists and unprecedented precedentialists. Unoriginal originalists refers to people who purport to pay...
Originalism and Pragmatism: False Friends
The idea that either pragmatism or originalism can restrain judges meaningfully in hard cases is illusory. Professors McGinnis and Rappaport have suggested that pragmatism and originalism should be thought of as friends. (1) The friendship they provide...
Paper Money and the Original Understanding of the Coinage Clause
"The Congress shall have Power... To coin Money, regulate the Value thereof, and of foreign Coin...." --Constitution of the United States (1) "Poor? Look upon his face. What call you rich? Let them coin his nose, let them coin his cheeks." ...
Playing Lawyers: The Implications of Endowing Parents with Substantive Rights under IDEA in Winkelman V. Parma City School District
Congress has long struggled with how best to protect the educational interests of children with disabilities. (1) The Individuals with Disabilities Education Act (IDEA) (2) seeks to prevent discrimination against children with disabilities and to assist...
Politics, Constitutional Interpretation, and Media Ecology: An Argument against Judicial Minimalism
INTRODUCTION There is a venerable tradition of judicial humility in American constitutional law. The modern conception of judicial restraint (1) can be traced back to an article written by Professor James Bradley Thayer in 1893. (2) Thayer's argument...
Pragmatism's Role in Interpretation
Although the title of this panel is in the conjunctive--Originalism and Pragmatism--people usually assume that we must choose originalism or pragmatism. Pragmatists, such as Justice Breyer and Judge Posner, think it both wise and appropriate to change...
Preface
Originalist arguments are present in an increasing number of law school classrooms, in the briefs of many practicing attorneys, and in the written decisions of more than a few judges and Justices. In introducing the theme of this Issue of the Harvard...
Reconceptualizing Split-Recovery Statutes: Philip Morris USA V. Williams
Many believe that punitive damage awards have spiraled out of control. In 2002, a California jury awarded $28 billion in punitive damages to a 64-year-old woman with lung cancer. (1) In 2000, a Florida jury awarded $145 billion in punitive damages...
Resisting the Ratchet
Descending for a moment from the rarefied atmosphere of our panel's discussion of the United States Supreme Court, I would like to offer several perspectives on the role of precedent from my vantage point as a Justice of the Michigan Supreme Court...
Text vs. Precedent in Constitutional Law
Conservative constitutional law scholarship is divided into two camps. First, there are the originalists and textualists like myself, Randy Barnett, John Harrison, Gary Lawson, Judge Michael McConnell, Michael Stokes Paulsen, Saikrishna Prakash, and,...
The Choice between Madison and FDR
This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until...
The Conservative Case for Precedent
This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally. First,...
The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress
Despite the vast quantity of research devoted to understanding religion and the American Founding, the original meaning of the First Amendment's Free Exercise Clause remains a matter of significant dispute. In academic literature and in Supreme Court...
Thinking about Originalism
If the Federalist Society is associated with a single word, it is "originalism." Although well-known for its noble efforts to encourage freedom of thought and debate in law schools (and among lawyers), the Society's own thoughts and debates have revolved...
Two (More) Problems with Originalism
In this Essay, I wish to offer two simple points. The first is that originalist arguments misconstrue history, and the second is that there is no such thing as pragmatic originalism--to the contrary, originalism is by definition unpragmatic and at...
Why Conservatives Shouldn't Be Originalists
The revival of originalism in the last generation has been, for the most part, the work of conservatives. That makes it easy to think that originalism and legal conservatism are natural allies. But in fact the alliance is an alliance of convenience,...