Written Constitutionalism, Past and Present

Debates over constitutional originalism almost always center on meaning. Questions are typically focused, concentrated on the meaning of particular constitutional clauses at the moment of their inception: the Commerce Clause in 1787, the Second Amendment in 1791, or the Fourteenth Amendment in 1868. Given the prevalence of these investigations, theoretical and methodological debates over how to recover original constitutional meaning are concentrated on either the kind of meaning that should be targeted—original public meaning, original intended meaning, or original legal meaning—or how that meaning can be recovered—through conventional legal reasoning, corpus linguistics, or thick reconstruction of historical context. Regardless, virtually all originalist theories of meaning uncritically presuppose the nature of the object possessing that meaning: they take as given what the Constitution itself is and, by implication, what it has always been. Although it might not be clear what the Constitution originally meant, it is straightforward what the original Constitution originally was. It just is the Constitution.

California's Fair Pay to Play Act and Its Fight Against the Commerce Clause

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Diploma Privilege and the Constitution

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic. State Supreme Courts are actively considering alternative paths to licensure. One such alternative is the diploma privilege, a path to licensure currently used only in Wisconsin. Wisconsin’s privilege, limited to graduates of its two in-state schools, has triggered constitutional challenges never fully resolved by the lower courts. As states consider emergency diploma privileges to address the pandemic, they will face these unresolved constitutional issues. This Article explores those constitutional challenges and concludes that a diploma privilege limited to graduates of in-state schools raises serious Dormant Commerce Clause questions that will require the state to tie the privilege to the particular competencies in-state students develop and avenues they have to demonstrate those competencies to the state’s practicing bar over three years. Meeting that standard will be particularly difficult if a state adopts an in-state privilege on an emergency basis. States should consider other options, including privileges that do not prefer in-state schools. The analysis is important both for states considering emergency measures and for those that might restructure their licensing after the pandemic.

An Inconsistent Jurisprudence: The Doctrinal Spectrum

This chapter explores Justice Antonin Scalia’s constitutional jurisprudence across the broad range of issues he addressed. The chapter shows that he contradicted his originalist jurisprudence in interpreting the First Amendment (both its free speech and religion clauses) as well as the Fourth, Fifth, and Eleventh Amendments, and that he did the same in construing a variety of other constitutional doctrines including those involving standing, the treaty power, affirmative action, the Commerce Clause, the Fourteenth Amendment, and the U.S. Supreme Court’s own appellate jurisdiction. The chapter argues that he frequently twisted, ignored, and abandoned his jurisprudential principles and methodologies he proclaimed and that the principal consistency his decisions and opinions reveal was his commitment to his own ideological goals and values.