Originalist issues
<http://constitutionalism.blogspot.com/2010/05/originalist-issues.html>
Debates among constitutional scholars on what constitutes an
"originalist" method or position on questions of constitutional
interpretation or construction are too often conducted on a high level
of abstraction that might be appropriate for discussion of all
constitutions of all polities over all time, but most of the
Constitution for the United States is reasonably unambiguous, and for
the unambiguous parts most discussants would admit to being originalist,
in the sense of holding the language has a fixed meaning as of the time
of ratification, and that such meaning is binding on courts today. If we
want to find an originalist method of interpretation or construction for
that Constitution, we need to examine each term or clause that is
disputed, try to discern the original intent, understanding, or public
or legal meaning, and analyze what we are doing when we do that.
Summary of most disputed text and the main issue for each:
1. Legislative powers ... vested. What are legislative powers and may
they be effectively delegated to administrative or judicial agents? May
legislative, executive, or judicial powers be used to indirectly induce
behavior that Congress does not have the power to legislate directly?
2. Direct taxes. What taxes are direct and what indirect?
3. Regulations. What are the bounds on the power to "regulate". Plenary
or only for certain purposes? Are penal powers implied?
4. General welfare. Restriction on power to tax and spend, or a power to
promote?
5. Commerce. Tangible commodities traded or all economic activity?
6. Coin money and regulate value. Only gold or silver, or also debt
instruments? Is power to make something legal tender on state territory
implied?
7. Limited times. Beyond the life of the inventor or author, or only for
long enough to recoup investment? Does power to promote imply penal powers?
8. Declare war, marque and reprisal. Does authorization to use force
qualify? Is it piracy to act without such authority?
9. Militia. Is it any defense activity, invoked by anyone aware of a
threat, or only state-organized armed groups? May keeping militia ready
be optional, or is is a duty, like elections? Is power to regulate
plenary, or only in ways that make militia more effective? Is anyone
subject to a law if he does not have the right to help enforce it? Does
it include duty of independent of constitutional review for any legal
issue by any person?
10. Places purchased. What are the limits on legislative authority for
federal enclaves, must cessions specify metes and bounds of each parcel,
do residents cease to be citizens of ceding states, and is there a
federal power of eminent domain, or only a state power?
11. Necessary and proper for carrying into Execution. Only incidental to
making an effort, or whatever is convenient to get a desired outcome?
12. Habeas corpus. Are all prerogative writs presumed to be remedies
courts must accord oyer and terminer?
13. Bill of attainder, ex post facto. Does prohibition extend to all
legislative disablements of rights? Does it forbid prosecution for
common law crimes?
14. Title of nobility. Does prohibition extend to prohibit any official
immunity or special privileges of government officials and agents?
15. Natural born citizen. Does it mean born on U.S. soil, or can it
include naturalized at birth by statute, and only on incorporated
territory? What counts as proof of it?
16. Laws be faithfully executed. Does it require unconstitutional
statutes or court orders be resisted?
17. Bribery, or other high Crimes and Misdemeanors. As no power to
punish these is delegated to Congress, must they be either state charges
or committed in federal enclaves, or are they only grounds for removal?
Do they include any violations of the oath of office, dereliction of
duty, failure to supervise, or conduct unbecoming?
18. During good behavior. May judges be removed by ordinary trial or
hearing on a writ of quo warranto, and not just by impeachment and
removal by Congress?
19. Judicial power. What is it and may it be delegated to legislative or
executive agents?
20. Cases and controversies. Include all judicial questions for which
relief, including declaratory or injunctive, may be granted, or only for
those with standing from having or expecting personal injury?
21. Arising under this Constitution. Does that extend the jurisdiction
of federal courts to cases involving the rights recognized in the Bill
of Rights between a citizen and his state?
22. Trial of all crimes ... by Jury. Is that a mandate, even if the
defendant pleads guilty? Must it be a jury of twelve and require a
unanimous verdict to convict?
23. Where ... committed. Where the defendant's head was at the moment
the act became irreversible, or wherever he might have been before and
after, or wherever the effects occurred?
24. Aid and comfort. Does that include undeclared enemies? Disclosing
classified information?
25. Privileges and immunities. What is and is not included in that?
26. Rules and Regulations ... Territory ... Property. Does that imply
penal powers legislated directly, or only the power to organize
territorial governments with such powers exercised by elected
territorial officials?
27. Protect ... against invasion. Does this require effective border
protection?
28. Treaties ... supreme Law. May a treaty require the exercise of
powers not delegated to Congress, or be a mandate on exercises of powers
of the states?
29. Judicial Officers ... oath. Are jurors also judicial officers?
30. Religion. What is it? Any belief system, including constitutionalism?
31. Speech. Any emission of a message? Money to pay for it? Does it
imply right to anonymity?
32. Press. Any dissemination of a message? Money to pay for it? Does it
imply right to anonymity?
33. Assemble. Subject to time, place, and manner regulations, and if so,
by what level of government?
34. Petition. Right not to be penalized, or also not to be impeded?
Access to grand jury? Implies right to get an answer?
35. Keep and bear arms. May weapons be restricted, and if so, how, or do
people have a right to anything they may need to win a war?
36. Quartering. Does the prohibition extend to demanding the use of
space for official purposes?
37. Unreasonable searches and seizures ... probable cause. What are the
bounds on discretion on these? Must warrants be presented and subjects
be allowed to verify them?
38. Grand jury. How many, and serving how many? For what must there be
indictment, must it decide jurisdiction, must it be open to complaints
by anyone, and may it authorize anyone to prosecute?
39. Twice put in jeopardy. May different jurisdictions prosecute for the
same act, or must penal jurisdictions be mutually exclusive?
40. Due process of law. What is it, and what are the bounds on
discretion? Does it include minimum standards of protection? What
procedures are essential? Does it commence with initial official contact?
41. Taken for public use, without just compensation. What is property?
What is public use, and for how long must it continue before being sold
to a private party? What is just compensation? When can regulatory
restrictions be constructive takings? Does the federal government have
power of eminent domain on state territory?
42. Speedy trial. How long may the accused be held without trial?
43. Public trial. Must cameras be allowed?
44. Impartial jury. Does this require the right of parties to argue all
issues of law to the jury?
45. Compulsory ... witnesses. May witnesses refuse to testify under oath
or affirmation?
46. Assistance of counsel. Only members of the bar, or anyone the
defendant may choose? Must it be paid for by the government if defendant
is unable to do so?
47. Exceed twenty dollars. What is the definition of "dollar" that
applies here? Can we get this enforced?
48. Cruel and unusual punishments. What are they? What are the bounds on
discretion?
49. Unenumerated rights. What are they? Do they include a right to a
presumption of nonauthority, and a right to the information and means to
effectively supervise public officials and agents?
50. Powers not delegated. Are powers to be interpreted as strictly as
the text allows, or as broadly?
51. Privileges or immunities. Same meaning in 1868 as in 1787, or
different? Extend federal court jurisdiction to state cases involving
any or all of the rights recognized in the Bill of Rights, including the
Ninth and Tenth Amendments?
52. Enforce, by appropriate legislation. Extends only to state action,
or to private action as well?
53. Incomes. What is income? Does it only include earnings on land or
capital, or does it include compensation for labor? Was the income tax
amendment ratified?
54. Remedies. What are the remedies if mandates are not done, such as
writs of election? Or remedies are impeded by cost, procedure, official
immunities, or service monopolies like state bars? What are political
questions and what are the remedies if elections are rigged?
The quest for method should begin with the common law rules of
construction that prevailed in 1787, one of the most important of which
was expressed in the maxims:
Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non præsumitur pro potentia. In cases of doubt, the
presumption is not in favor of a power.
If those are granted, much of the rest is straightforward.
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