Preface

By Porter, Robert R. | Harvard Journal of Law & Public Policy, Summer 2008 | Go to article overview

Preface


Porter, Robert R., Harvard Journal of Law & Public Policy


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 Journal of Law & Public Policy, Justice Antonin Scalia--widely considered the leading exponent and practitioner of contemporary originalism--notes that this approach to constitutional interpretation at one time prevailed in the courts. The recent emergence of originalist influence is not itself original but rather represents a return to the original interpretive method of American constitutional law.

The present revival of originalist thinking, however, has yet to achieve ascendancy in the contemporary legal profession. Indeed, even among its proponents, originalism means different things to different people. The wide variety of doctrines that march under the originalist banner--including theories of "original intent," "original understanding," and "original public meaning"--are sometimes at odds with each other. Neither is the politics of (and behind) originalism as straightforward as many critics suggest. Although long associated with the conservative legal movement, there are prominent left-leaning originalists as well as scholars who propound a "conservative" case against originalism.

The symposium essays that follow, ably introduced by Professor Steven Calabresi and including contributions from some of the most eminent proponents and critics of originalism, discuss this mode of constitutional interpretation from a variety of perspectives. These essays originated as panel presentations at the Federalist Society National Lawyers Convention held in Washington, D.C., on November 10, 2005. A transcript of the panel proceedings was published in book form as Originalism: A Quarter-Century of Debate (Regnery Publishing, Inc., 2007). We are grateful to Gene Meyer and the Federalist Society for sponsoring a conference on this important topic and to Professor Calabresi for helping to organize its proceedings and subsequent publication. We are especially thankful to the distinguished symposium participants for revising, and in some cases greatly expanding, their remarks in order to share their ideas with our readers.

Critics of originalism frequently cite the Coinage Clause as evidence that this interpretive method is unwise and often unworkable. Presuming the phrase "To coin Money" originally to encompass only metallic tokens, detractors point to the impracticability of functioning without paper money as a reason to reject originalist methodologies in favor of creatively adapting constitutional text to satisfy modern needs. In an exhaustively researched article, Professor Robert G. Natelson exposes the incorrect assumptions underlying such attempts to discredit originalism, arguing that paper money is fully consistent with the original understanding of the Coinage Clause. Drawing from British history, colonial experience, Constitutional Convention notes, ratification records, and the public meaning of various terms as reflected in dictionary definitions and common usage, Professor Natelson demonstrates that the money Congress was empowered to "coin," and upon which it could bestow legal tender quality, was not limited to precious or common metals. Although it is doubtful that the Constitution's drafters intended to grant or deny the federal government a paper-money power, the ratifiers who made the document legally effective clearly understood the Constitution to authorize the central government, but not the states, to issue paper money.

Even among those who emphasize historical materials and seek evidence of original understanding, there is sharp disagreement regarding the original meaning of the First Amendment's Free Exercise Clause. Concluding that records documenting the drafting of the Free Exercise Clause itself offer little conclusive insight into that provision's original meaning, Professor Vincent Phillip Munoz looks instead to the often overlooked legislative debates about what would become the Second Amendment to shed light on whether members of the First Congress understood the Free Exercise Clause to provide a religious exemption from burdensome laws of general applicability. …

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