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Abstract:
Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists—the “framers” of originalism, if you will—as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated—and continue to articulate—a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation.

Our account of originalism’s evolution—and of the extensive disagreement among originalists today—undermines originalists’ normative claims about the superiority of their approach. Originalists’ claims about the unique and exclusive legitimacy of their theory—that originalism self-evidently represents the “correct” method of constitutional interpretation—founder when one considers that originalists themselves cannot even begin to agree on what their “correct” approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and thus that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism; because each version has the potential to produce a different constitutional “meaning,” the constitutional meaning that a committed originalist judge would find turns out to be anything but fixed. As originalism evolves, the constitutional meanings that it produces evolve, too. Today’s originalists not only reach results markedly different from those originalists reached thirty years ago, but also produce widely divergent results amongst themselves. Judges committed to the originalist enterprise thus have significant discretion to choose (consciously or subconsciously) the version of originalism that is most likely to dictate results consistent with their own preferences. As such, originalism suffers from the very flaws that its proponents have identified in its alternatives.

constitutional law, originalism, constitutional interpretation, interpretation

Abstract:
In Philip Morris v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of this landmark decision. It argues that, although the Court's procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages - questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution's criminal procedural safeguards?

The Article argues that punitive damages are properly conceived of a form of punishment for private wrongs: judicially sanctioned private revenge. As such, the Article explains, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law and thus make an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public.

The Article concludes by considering the future of punitive damages in light of the Williams decision. It concludes that, contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of substantial extra-compensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. It is the fact that punitive damages punish, and that they do so in order to vindicate the interests of the state, that precludes their use to address third-party harms. Once the element of punishment is eliminated from the remedy, the constitutional infirmity at issue in Williams is ameliorated.

Abstract:
This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in history). The problem is frequently much more fundamental, and much more fatal; it is that there was no original public meaning to begin with. It is a natural consequence of the constitution-making process that a constitutional provision addressing a deeply controversial subject can only be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single original meaning, it appeals to disparate factions with divergent understandings of its terms. As such, the central premise of originalism - that, in Justice Scalia's words, the Constitution was enacted with a fixed meaning ascertainable through the usual devices familiar to those learned in the law - is often inaccurate. And for that reason, the central promise of originalism - that, by relying on an objective, discoverable, fixed constitutional meaning, originalism can prevent judges from subverting democracy and the rule of law by reading their personal values into the Constitution - is a false one.

Same Sex Marriage, Federal Marriage Amendment, Marriage Protection Amendment, Originalism, Constitutional Law, Constitutional Interpretation

Abstract:
Executive branch agencies typically use a process of "notice-and-comment" to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these concerns, and could also help to constrain judges to follow the rule of law and to improve the legitimacy of the judicial process.

notice-and-comment, judges, errors

Abstract:
The practice of using punitive damages to punish a tort defendant, in a single case brought by a single one of many victims, for the full scope of societal harm caused by its entire course of wrongful conduct has become increasingly common in modern tort cases. This practice presents the troubling possibility that more than one victim will recover punitive damages awards that were each designed to punish the defendant fully for the same course of wrongful conduct, resulting in unjustly severe cumulative punishment. Many courts and commentators have responded to this "multiple punishment" problem with complex and far-reaching proposals designed to protect against it. This Article argues that these observers have been asking the wrong question. The proper question is not whether awarding these "total harm" punitive damages to more than one victim can sometimes lead to unconstitutional results, but rather whether awarding these damages to even a single victim is itself unconstitutional. This Article argues that it is.

These "total harm" punitive damages awards are a product of the modern conception of punitive damages, which imagines them as punishment for public, societal wrongs. This Article challenges the historical accuracy of this modern theoretical account, and reveals that historically, punitive damages were considered to be punishment only for the distinct, private legal wrong done to the individual victim. When the same conduct harmed more than one victim, the courts limited each plaintiff's recovery of punitive damages to the amount necessary to punish the defendant only for the private wrong done to the individual plaintiff. This Article argues that both historically and presently, the constitutionality of punitive damages is dependant upon their existence as punishment for individual, private wrongs, rather than public, societal wrongs. Thus, the revolutionary proposals offered by commentators seeking to solve the multiple punishment problem go both too far (by declaring that the Constitution requires radical alterations to traditional punitive damages practice) and not far enough (by assuming that the constitutional infirmity of "total harm" punitive damages lies only in multiple awards of them). This Article argues that the constitutional concerns are best addressed by returning to the roots of punitive damages doctrine and re-implementing the historical conception of punitive damages as punishment for the private wrong done to the individual plaintiff.

Abstract:
If there is one principle of Establishment Clause jurisprudence that has enjoyed the unanimous support of all of the Justices of the Supreme Court over the last half century, it is that all religions are afforded equal status under the Constitution. With his dissenting opinion in the 2005 Ten Commandments cases, however, Justice Scalia has upset that consensus. According to Justice Scalia's dissent, the Establishment Clause affords greater protection to the believers of some religions (Christianity, Judaism, Islam) than others (Hinduism, Buddhism, no religion, everything else). Turning traditional constitutional law on its head, Justice Scalia's approach treats the Establishment Clause in the context of governmental religious expression neither as a mandate for equality, nor as a vehicle for protection of the minority against the tyranny of the majority, but rather as a mechanism for protecting the majority from the inconvenience of having to respect the rights of the minority. And not just that: on Justice Scalia's view, it appears that the Establishment Clause affords greater protection only to the majority religious outlook (Judeo-Christianity) that was prevalent at the time of the framing. If ever the tables are turned, and the practitioners of other religions (or of no religion) achieve majority status in some communities, the Establishment Clause will not extend the same rights and powers to them that it extends to the adherents of Judeo-Christianity. To Justice Scalia, biblical monotheism is and always shall be the preferred religion of the American Constitution.

This Article critiques Justice Scalia's theory on three principal grounds. First, it argues that Justice Scalia's reasoning is based on a misguided conception of inclusiveness and of minority rights, wrongly suggesting that an equality norm that protects approximately eighty-five percent of Americans, at the expense of the other fifteen percent, is somehow constitutionally acceptable. Second, it argues that Justice Scalia's defense of his rule on the ground of a perceived need for doctrinal consistency rings hollow, both because his own rule manifestly does not achieve the consistency that he seeks, and because it is misguided to insist, in the name of consistency, that the Court's traditional mandate of neutrality in religious matters is somehow discredited by the Court's pragmatic refusal to immediately extend it to the full extent of its logical reach. Finally, this Article argues that Justice Scalia's rule cannot be defended on originalist grounds, because although it aligns almost perfectly with the political preferences of the religious right, it is both theoretically bankrupt and demonstrably not mandated by, nor even supported by, the historical evidence of the original meaning of the First Amendment on which it is purportedly based. In that respect, Justice Scalia's dissent stands as a stark example of the inability of originalism to produce in practice - even when practiced by its most able disciples - a genuine apolitical constitutionalism.

Scalia, Establishment Clause, Church and State, Religion, Ten Commandments

Abstract:
Employing a straightforward textual reading of the Commerce Clause, which, unlike various other constitutional clauses, does not expressly mandate uniform regulation, the Supreme Court has recently declared that Congress is free to enact commercial regulations that apply in some states, but not in others, or that explicitly treat some states differently than others. This Article seeks to call that conclusion into question, and in the course of doing so, to explore the proper roles of history and text in constitutional decisionmaking.

From a historical perspective, the desire for uniformity was both the precipitating factor in the creation of the federal commerce power and a fundamental limitation upon that power. Fearing that Congress would use the commerce power as a means of discriminating in favor of some states at the expense of others, the Constitutional Convention ratified a provision intended to preclude Congress from enacting nonuniform regulations of commerce. For purely stylistic reasons, that provision was ultimately broken into two different clauses: the Port Preference Clause and the Uniformity Clause, but the framers understood those clauses to be one in purpose, and to have the combined effect of categorically prohibiting the nonuniform exercise of the commerce power.

Because the framers narrowly conceived the commerce power as extending only to the imposition of excises and duties and the regulation of navigation and shipping, their decision to divide the mandate against the nonuniform regulation of commerce into two, more narrowly drawn clauses seemed inconsequential. The Uniformity Clause, which requires all excises and duties to be uniform throughout the United States, and the Port Preference Clause, which precludes Congress from enacting regulations of navigation or shipping that favor the ports of one state over those of another, were sufficient in their day to fully protect against the nonuniform exercise of the commerce power. In today's world, however - a world in which the commerce power has achieved a drastically broader ambit - if we continue to read the Uniformity and Port Preference Clauses narrowly and literally, and if we fail to imply a general uniformity constraint on the commerce power, then we fatally undermine the fundamental constitutional principle that pervaded the Constitutional Convention that Congress must not be permitted to use the commerce power to favor some states at the expense of others. This Article contends that we should interpret the Constitution in a manner that preserves this fundamental precept and ensures that it remains relevant and vital in the twenty-first century and beyond.

Commerce Power, Commerce Clause, Sports Protection Act, Uniformity, Originalism, Constitutional Law, Constitutional Interpretation