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Michael W. McConnell

Beyond Originalism: Lessons From History

Photo by Judith Romero

preferredMichael McConnell has a keen interest in how history can help us understand current 
constitutional issues. His research frequently begins with unearthing early controversies over constitutional provisions and then analyzing how those discussions could inform 
contemporary debates. Moving past the politically charged debate over “originalism,” and whether we should be bound by early understandings of the Constitution’s meaning, 
McConnell says the past can provide “more grist” for examining today’s political debates.

“The past often gives us a greater purchase because it’s so hard to divorce ourselves from [today’s] partisan aspects,” says McConnell, the Richard and Frances Mallery Professor of Law, director of the Stanford Constitutional Law Center, and senior fellow at the Hoover Institution. “The past can 
liberate us from that kind of presentism.”

The principle of the due process clause, for example, is a crucial part of our jurisprudence, but one that legal historians have devoted relatively little attention to. Most legal academics have conventionally had two views about the history of due process: either that the term refers primarily to judicial process and thus doesn’t limit Congress or state legislatures or that the term refers both to judicial process and more substantive “natural law norms such as reasonableness, justice, and fairness” thus imposing broad limits on what a legislature can do.

Along with Nathan Chapman, a former executive director of Stanford’s Constitutional Law Center, McConnell went back and analyzed the framers’ writings on due process. “This may show I’m a constitutional history geek, but I was surprised to see how conscious some of our framers, especially Hamilton, were about the formulations of due process,” he says. “I’m frequently impressed by the way in which words were chosen carefully.”

In their piece published in The Yale Law Journal last year, “Due Process as Separation of Powers,” McConnell and Chapman argue that when the Fifth Amendment was passed, the due process clause was widely understood to apply not just to the judiciary but to all three branches of government. However, they claim, it didn’t impose broad, substantive limitations on the scope of legislative authority; instead, it banned a narrower range of laws that interfered with the procedural responsibilities assigned to other branches of government. In other words, due process—at least in its original meaning—had little to do with what’s now called substantive due process and much more to do with separation of powers. McConnell says this history could be particularly relevant to contemporary debates over the executive branch’s power to act without legislative authorization. “With executive power on the rise, that may become more important,” McConnell says.

In another recent piece, McConnell wrote a reappraisal of the Supreme Court’s controversial ruling about campaign contributions in Citizens United. McConnell was concerned that the academic outcry against the Citizens United ruling missed the point—which he attributes partly to a confusing ruling by the Court that “gives off a lot of vibes of overreaching and not being well focused.” In fact, he says, the ruling is hardly revolutionary when restated in simple terms and cabined to its facts: “Could it possibly be true that it’s a criminal act for people to film and distribute a documentary attacking a candidate for office?”

So much attention has focused on the notion of corporate versus individual speech, but McConnell argues that corporations—specifically media outlets—have long been among the most important entities that need freedom-of-the-press protections. Many of the key First Amendment cases, among them New York Times Co. v. Sullivan, have involved corporations.

Right now, McConnell is working on a review of Brian Leiter’s new book Why Tolerate Religion? For centuries, nobody in the United States has seriously debated whether we ought to have religious tolerance—letting minority religions practice freely—but Leiter’s book takes a different approach—arguing that in a modern secular state we shouldn’t provide special treatment for religion. “I’m pointing out that that’s not our constitutional arrangement, and it shouldn’t be,” McConnell says. “There are good reasons we believe that government isn’t a good arbiter of religion, which includes disbelief as well as belief.”

McConnell’s sights are also set on another important institution that’s often neglected by legal historians—the Federal Reserve. Through the lens of history, he wants to ask how it can be that an institution that wields so much power can be so insulated from democratic process. Again, he thinks history provides insights into the present. Long ago, Alexander Hamilton noted that if the government exercised too much control over a central bank, it would always have perverse incentives to devalue the dollar in order to repay its debt. That, of course, is an argument that’s been echoed in some financial commentators’ concerns about the Fed’s policy of quantitative easing today. SL

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