The Download of the Week is The Domestic Violence Clause in “New Originalist” Theory by Mark S. Stein. Here is the abstract:
In this brief essay, I address the way in which “new originalists”
Jack Balkin and Lawrence Solum use the Domestic Violence Clause in
Article IV, Section 4 of the Constitution to support their theories.
Balkin uses the Domestic Violence Clause to provide an example of an
impermissible departure from original meaning: surely, he claims, it
would be wrong to interpret the constitutional term “domestic violence”
as referring to spousal abuse. Solum uses the same example to support
his thesis that the semantic meaning of the Constitution is fixed at
the time of origin.
In fact, the constitutional term “domestic
violence” could evolve so that an application of the Domestic Violence
Clause to spousal abuse no longer seems absurd. Reflection on this
possibility yields some insights about originalism and original
expected applications.
And from the paper:
But what if Balkin is not right about the original meaning of “domestic
violence?” Some readers will by now have begun to consider a move often
made by “new originalists” such as Balkin and Solum: drawing a line
between original meaning and original expected applications. Maybe the
original meaning of the constitutional term “domestic violence” was
not, as suggested by Balkin, “riots or insurrections;”14 maybe those
were merely expected applications of the term. Maybe the original
meaning of the constitutional term “domestic violence” was “violence
internal to a state,” so that spousal abuse was, from the very
beginning, embraced within the semantic meaning of the Domestic
Violence Clause. Spousal abuse was not initially an expected
application of the clause, but a constitutional provision can be given
a legal meaning different from its original expected application,
without doing violence to the hard core of original semantic meaning.
Highly recommended–a wonderful and illuminating essay. I posted some comments on this here (or just scroll down).