In two new papers, David Schwartz and I attempt to show that the original public meaning of the Constitution’s enumeration of powers is fundamentally indeterminate. Many members of the ratifying public understood that enumeration as exhaustive, but many did not. Our analysis suggests, though it does not prove, that the same is true of most contested constitutional questions. If we are correct, historically rigorous originalism has almost no practical resolving power, even on its own terms.
In another new solo paper, I argue that Dobbs v. Jackson Health Organization was an ordinary example of a conservative Supreme Court reaching conservative results. That decision was wrong, gratuitously cruel, and poorly reasoned in many respects. But it was not illegitimate or lawless. In controversial cases like Dobbs, the justices cannot avoid moral judgment, except through unattractive–and ultimately unavailing–formalism like the quasi-originalism of the Dobbs majority.
On the surface, the subject matter of these projects is quite disparate. But they rest on the same age-old wisdom: There is no silver bullet that can remove moral judgment from difficult constitutional cases. The doctrine of stare decisis could not do it in Dobbs. And original meaning cannot do it in debates over federal power.
In “Interpreting Ratification,” Schwartz and I conclude: “The founders could not settle their own interpretive controversies. We cannot, and should not, expect them to settle ours.” The same goes for long-standing but intensely contested precedents like Roe v. Wade. For better or worse, there is no escaping the burdens of judgment.
This is hardly news, but the allure of escape is protean and apparently evergreen. Consider this post a friendly reminder.