Nonpartisan Originalism Clark D. Cunningham W. Lee Burge

Nonpartisan Originalism Clark D. Cunningham W. Lee Burge

Nonpartisan Originalism Clark D. Cunningham W. Lee Burge Chair in Law & Ethics Georgia State University College of Law ACS Constitutional Law Scholars Forum Friday, March 1, 2019 Dwayne O. Andreas School of Law, Barry University Orlando, Florida This presentation available at Cunningham - Nonpartisan Originalism 1 Cunningham - Nonpartisan Originalism 2

Cunningham - Nonpartisan Originalism 3 Constitutional Accountability Center Founded in 2008 by Doug Kendall Kendall argued that the debate over how

judges should interpret the law was over Textualism had won It was time to join the fight over the meaning and interpretation of the Constitution Cunningham - Nonpartisan Originalism 4 Justice Elena Kagan

I think were all textualists now in a way that just was not remotely true when Justice Scalia joined the bench. Cunningham - Nonpartisan Originalism 5 Brianne Gorod, chief counsel for CAC:

Our founding belief was that if progressives spent less time fighting about the method of interpreting the Constitution with conservatives, we could spend more time discussing what the Constitution actually means And that thats a fight that progressives can win. Cunningham - Nonpartisan Originalism

6 From the CAC Home Page Cunningham - Nonpartisan Originalism 7 The Supreme Court Just Handed a Big, Unanimous Victory to Workers.

Wait, What? By Mark Joseph Stern Jan 15, 2019 The Supreme Court handed a victory to American workers, ruling unanimously that independent contractors who work in transportation may not be forced into mandatory arbitration.

The decision is a remarkable win for labor rights from a court that typically favors corporate interests over working people. It will allow hundreds of thousands of contractors to vindicate their rights in court, collectively, rather than in costly and unjust arbitration. Armed with old dictionaries and common sense, progressive attorneys scored the biggest blow against mandatory arbitration in years. Cunningham - Nonpartisan Originalism 8

NEW PRIME INC., v. OLIVEIRA 139 S.Ct. 532 (2019)(Gorsuch, J.) The decision marks the triumph of the Gorsuch briefdesigned to nab the justices vote by fixating on the text of a statute and its meaning at the time of passage. Gorsuch appears to draw heavily from an amicus brief filed by the Constitutional Accountability Center The brief dwells on the dictionaries that Gorsuch cites and even dives into the etymology of the word employment, from its Latin roots to its evolution through French and Anglo-Norman usage in the Middle Ages.

The Constitutional Accountability Center provided enough arcane evidence to satisfy Gorsuch that, in 1925, the word employment did not distinguish between employers and contractors. Cunningham - Nonpartisan Originalism 9 Cunningham - Nonpartisan Originalism 10

Cunningham - Nonpartisan Originalism 11 Cunningham - Nonpartisan Originalism 12 We the People of the United States,

in Order to . secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Cunningham - Nonpartisan Originalism 13 Paul Revere

Cunningham - Nonpartisan Originalism 14 Liberty Bowl (1768) Cunningham - Nonpartisan Originalism 15

Cunningham - Nonpartisan Originalism 16 Fourth Amendment The right of the people to be secure in their papers

against unreasonable searches and seizures shall not be violated Cunningham - Nonpartisan Originalism 17 England April 23, 1763

Cunningham - Nonpartisan Originalism 18 Lord Halifax, Secretary of State: Warrant make strict and diligent search for the authors,

printers and publishers of a seditious and treasonable paper entitled the North Briton, Number 45 Cunningham - Nonpartisan Originalism 19 Lord Halifax Warrant

and any of them having found apprehend and seize together with their papers Cunningham - Nonpartisan Originalism

20 Wilkes Attorney This case extended far beyond Mr. Wilkes personally It touched the liberty of every subject of this country Of all offences that of a seizure of

papers was the least capable of reparation Cunningham - Nonpartisan Originalism 21 Wilkes Attorney And for the promulgation of our most

private concerns, affairs of the most secret personal nature, no reparation could be made The law never admits of a general search warrant Even in the Inquisition itself, they never delegate an infinite power to search Cunningham - Nonpartisan Originalism 22

Fourth Amendment no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be

seized. Cunningham - Nonpartisan Originalism 23 Chief Justice Pratt (later Lord Camden) was a point of the greatest consequence I have ever met with in my

whole practice such a power is totally subversive of liberty Cunningham - Nonpartisan Originalism 24 Cunningham - Nonpartisan Originalism 25

Cunningham - Nonpartisan Originalism 26 Cunningham - Nonpartisan Originalism 27

Cunningham - Nonpartisan Originalism 28 Cunningham - Nonpartisan Originalism 29 Blumenthal v Trump (D.DC)

Cunningham - Nonpartisan Originalism 30 Cunningham - Nonpartisan Originalism 31 Article I, Section 9

no Person holding any Office of Profit or Trust shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State Cunningham - Nonpartisan Originalism 32

The DISTRICT OF COLUMBIA and The State of Maryland, Plaintiffs, v. Donald J. TRUMP, individually and in his official capacity as President of the United States, Defendant. Civil No. PJM 17-1596 United States District Court D. Maryland

Cunningham - Nonpartisan Originalism 33 Presidents position when the Constitution was ratified emolument had two distinct meanings: a narrow sense limited to profit arising from an office or employ

a broad sense meaning benefit, advantage or profit emolument in the Constitution only referred to the narrow meaning Cunningham - Nonpartisan Originalism 34 Cunningham - Nonpartisan Originalism

35 Cunningham - Nonpartisan Originalism 36 Search results 69 uses of emolument in coordinated noun phrases in which the term appeared at the end of a list, preceded by other

Approximately one out of every 40 cases of emolument occurs in this structure On average, nouns in COFEA appear in this structure in only one out of 1250 cases Cunningham - Nonpartisan Originalism 37 Nouns preceding other emolument(s) in

coordinated noun phrases will be types of emolument but will not exhaust meaning of emolument Cats, dogs, and other animals *Cats, birds, and other dogs Cunningham - Nonpartisan Originalism 38

Examples having Receivd a wound which has renderd him uncapable of doing duty with his Regiment ever since and being much Embarrassd by not having receivd any pay, Cloathing or other Emoluments granted to the Officers of your State, Since July 1779 (Leonard Cooper to Virginia Delegates 1781)

Cunningham - Nonpartisan Originalism 39 Examples the memorial of William Finnie praying that the donation of lands and other emoluments appertaining to the rank of a Colonel in the line of the late continental army may be extended to him (Continental Congress 1785) Rivers and lakes are useful for navigation or for

fishing, or for other emoluments arising from their possession (Summary of the Law of Nations 1795) Cunningham - Nonpartisan Originalism 40 Nouns preceding other emolument(s) in coordinated NPs

Cunningham - Nonpartisan Originalism 41 Cunningham - Nonpartisan Originalism 42 Cunningham - Nonpartisan Originalism

43 Seminar on Judicial Power Georgia State University College of Law Spring Semester 2018 Web Site Address: Cunningham - Nonpartisan Originalism 44

GSU Law Students Present Research: April 11, 2018 Big Data Meets the Constitution in New Origin alism Project : Georgia appellate judges evaluate cuttingedge inquiries into what the Constitution's framers meant from Georgia State University law students. Meredith Hobbs, Daily Report, May 1, 2018

"This is revolutionary, said Georgia Appeals Court Chief Judge Stephen Dillard. Its like Westlaw for originalism. Students Present New Insights on Original Meaning of Constitution to Judges using Big Dataof Corpus Linguistics GSU College of Law News, May 21, 2018

I thought the students were all exceptionally well prepared, the writing was very strong, the research was very strong, and its grappling with some of the most difficult questions that courts have to deal with today. Justice Nels Peterson, Supreme Court of Georgia Cunningham - Nonpartisan

Originalism 45 Isaac Godfrey 8th Amendment Excessive bail shall not be required Cunningham - Nonpartisan Originalism 46

Congress shall make no law . . . abridging . . . Pearson Cunningham & William Lasker the right of the people . . . to petition the Government for a redress of grievances 47 Cunningham - Nonpartisan Originalism

Eleanor Miller & Heather Obelgoner The executive power shall be vested in a President of the United States of America. Article II:

Article I: All legislative powers herein granted shall be vested in a Congress of the United States Article III: The judicial power of the United States, shall be vested in one Supreme Court,

and in such inferior courts as the Congress may from time to time ordain and establish Cunningham - Nonpartisan Originalism 48 Dont Be Cruel: A Corpus Analysis of the Cruel and Unusual Punishments Clause Aaron Smothers and Cecelia Howard

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Cunningham - Nonpartisan Originalism 49 Seminar on Judicial Power Spring 2019 Article 3: case or controversy 4th Amendment papers and effects

5th Amendment commas v semicolons 7th Amendment: right of trial by jury shall be preserved 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Cunningham - Nonpartisan Originalism 50

This presentation available at http:// tisanOriginalism.html Cunningham - Nonpartisan Originalism 51

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