Posted by Orin Kerr:
Stevens, Originalism, and the Wine Opinion:
http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116429403
I have chosen to remain rationally ignorant about the 21st Amendment
-- while it's one Amendment I am firmly behind, I can't say I know
anything about the details -- but I am not sure I share [1]co-blogger
Todd's reaction, also shared by [2]Stephen Bainbridge, to [3]Justice
Stevens' dissenting opinion in the wine cases. Persuasiveness aside,
the Stevens dissent strikes me as relatively standard originalist
fare. The opinion attempts to contrast the original understanding of
the 21st Amendment with the policy views of the present day, and
argues that the policy views of the present day should not trump the
original understanding of the 21st Amendment.
Granted, the idea that Justice Stevens would suddenly embrace
originalism is worth a chuckle. He is a rather late convert to the
faith, and I suspect won't be found in church next Sunday. But the
structure of his argument seems common enough. Consider his view that
we should pay special deference to the views of those who were around
at the time the 21st Amendment was passed. This seems similar to the
view the Supreme Court expressed in [4]Ogden v. Saunders, 25 U.S. 213
(1827), that there is a "presumption, that the cotemporaries of the
constitution have claims to our deference on the question of right,
because they had the best opportunities of informing themselves of the
understanding of the framers of the constitution, and of the sense put
upon it by the people when it was adopted by them." More recently,
this approach has appeared in a number of recent opinions that feature
originalist modes of interpretation, among them [5]Alden v. Maine, 527
U.S. 706 (1999), in which Justice Kennedy examines the views shared by
"[t]he generation that designed and adopted our federal system" for
evidence of the "original understanding of the States' constitutional
immunity from suit" that can shed light on the meaning of the Eleventh
Amendment. The basic idea seems to be that the views of those around
at the time a constitutional provision was adopted can provide some
insight into the original understanding of constitutional text.
Of course, none of this means that Stevens was right or wrong, or
that originalism is a good or bad tool for understanding the
constitution. But it does leave me less persuaded that the Stevens
opinion is somehow outside the mainstream of judicial craft.
References
1. http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116367567
2. http://www.professorbainbridge.com/2005/05/justice_stevens.html
3. http://scotus.ap.org/scotus/03-1116p.zd.pdf
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=25&page=213
5.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-436
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