Wednesday, October 28, 2015

Canonical Case Skepticism and the Cartoon Version of Nonoriginalism

by Michael Dorf

One week ago, I posted a critique of a certain move that is sometimes made to defend originalism and other constitutional theories that produce the wrong result in Brown v. Board of Education. I argued that it is not sufficient that these theories allow for stare decisis because the "Brown test" is about what a theory produces rather than what it preserves. Prof. Larry Solum then offered some thoughts and posed some questions for me, which I answered on Monday. That same day, Prof. Solum added some additional thoughts based mostly on my first post on this subject. Meanwhile, Prof. Paul Horwitz raised questions about the canonical status of Brown and canonical status more broadly. Here I'll respond first to Horwitz and then pivot to Solum and a couple of others.

Although Horwitz agrees with just about everyone that Brown is rightly decided, he worries about the notion that it--or any case--is sacrosanct. His concern is that a practice that treats any case as sacrosanct forecloses radical alternatives. Voicing themes that sound partly in freedom of thought and expression, he writes that although he is happy to teach his students
something about what polite society demands of them, I don't want to preclude their rejection of polite society, or their individual interests in pushing the boundaries of what constitutes a polite society. Although overwhelmingly politically liberal, the legal academy is also highly conservative and anti-radical.  . . . I worry that [our] discussions are too much about making sure that the academy makes enough room for doctrinaire conservatives, or doctrinaire conservatives and doctrinaire libertarians, alongside doctrinaire liberals, and not enough about really widening the scope of our discussions. In the legal academy in particular, I worry that we don't make enough room for, let alone positively encourage, people whose views or approaches or priors are more genuinely radical. I wonder what conversations and possibilities we miss as a result. 
I agree wholeheartedly. Indeed, reading Horwitz I have come to regret that in my post last week I equated the notion of Brown being sacrosanct with what Steve Sachs describes as the possiblility that Brown is right "because Brown." That sounds like the rightness of Brown is stipulative, a given that cannot be challenged. I agree with Horwitz that we should not have such stipulations, such unchallengeable results. The fact that many people start with the settled conviction that Brown is right is not a sufficient reason for ending there.

Indeed, in my work on animal rights, I aim to unsettle settled convictions. Most people hold as settled convictions all sorts of propositions regarding non-human animals that I believe are simply false: Humans need animal-derived foods to live healthy, fulfilled lives; non-human animals lack the relevant capacities for moral consideration; rights necessarily rest on reciprocity; etc.  In arguing that these and other beliefs--no matter how strongly held--are false, I take for granted that a settled conviction can be rejected.

The same is true regarding settled convictions about sacrosanct cases like Brown. In my constitutional law class last week, I challenged my students' convictions about Brown with the argument of W. E. B. Du Bois in Does the Negro Need Separate Schools?.  If integration means that Black schoolchildren will learn from racist white teachers, is that really a step up? And--as we discuss in connection with Brown's legacy when studying the Parents Involved case--if we can't agree on what Brown means for our current circumstances, does it really matter that we all think that Brown was rightly decided?

So yes, by all means, do not end with the proposition that Brown is sacrosanct simply because you started there. If Brown is sacrosanct, that should be because its rightness remains a settled conviction even after it has been rigorously scrutinized. Not "because Brown" but because . . . well what, exactly?

I'll return to that question in a moment but first I want to make one point in response to Solum's Monday post. Recognizing that this barely scratches the surface of what he says, I'll leave fuller responses for others because I take Solum at his word that he is merely using my post as a point of departure for a broader discussion with a great many people within and outside of the originalist camp.

In my original post I stated that by contemporary standards even Ronald Dworkin was a semantic originalist. I had in mind such statements as the following (from page 10 of Dworkin's book, Freedom's Law): "We are governed by what our lawmakers said--by the principles they laid down--not by any information we might have about how they themselves would have interpreted those principles or applied them in concrete cases." Throughout Freedom's Law and other works, Dworkin distinguished between semantic intentions--which he thought binding--and other intentions--which he thought largely irrelevant to constitutional interpretation. For example, he repeats the point on page 118 in his response to Justice Scalia's lead essay in A Matter of Interpretation. Dworkin says there that he and Scalia agree on the difference between semantic intentions (they count) and other intentions (they don't), but then in the rest of his chapter Dworkin goes on to chide Scalia for relying on evidence based on those other intentions and departing from semantic originalism.

In his Monday post, Solum says that contemporaneous practices can shed light on original public meaning, not just on expected applications. I agree with the general point, but I also agree with Dworkin that there are instances of Scalia and other Justices and judges using examples of practices contemporaneous with a provision's adoption in ways that seem only to bear on expected applications rather than original public meaning, even as they profess original public meaning in their academic writings.

Solum also says Dworkin was not a semantic originalist because Dworkin would have allowed that in some circumstances precedent and practice may supersede text, and that idea is inconsistent with what Solum regards as one of the two fundamental commitments of originalism: the so-called Constraint Principle. I'm less sure that Dworkin's views fell outside of originalism than Solum is but, as Solum says, we can all be working with different definitions of originalism (or anything else). More to the present point, I don't think Dworkin's acceptance of precedent and practice as potentially overriding text are especially relevant to a discussion of Brown's sacrosanctity because, obviously, at the time it was decided, Brown could not have been based on precedent (Plessy was the most relevant one) or practice. Dworkin thought Brown was right because it was the best understanding of the original semantic meaning of equal protection, not despite the (non)fact that it contradicted that meaning.

Why did Dworkin think that? Why do I agree? Now we come to the question I temporarily forestalled: In virtue of what is Brown sacrosanct?

The answer, for me at least, is the answer that Charles Black gave in The Lawfulness of the Segregation Decisions:
If a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated "equally," I think we ought to exercise one of the sovereign prerogatives of philosophers-that of laughter. The only question remaining (after we get our laughter under control) is whether the segregation system answers to this description. Here I must confess to a tendency to start laughing all over again.  
So that's it. Brown is correct because Jim Crow was inconsistent with any plausible conception of "equal protection of the laws," regardless of what anyone might have thought in 1868. The reason Brown is sacrosanct is that any interpretive theory of a Constitution that contains an equal protection clause that doesn't produce Brown is immoral.

Piggybacking on a post by Asher Steinberg, Prof. Michael Ramsey asks whether I would think that Brown should come out as it did even if the Fourteenth Amendment had never been ratified. It's hard to know what I would think about that, because it would suppose a whole different history of the last century and a half, not just a single counterfactual at a particular time, but I can answer a better question that gets at the same thing: Is Bolling v. Sharpe correctly decided? After all, with respect to the federal government, the equal protection clause was never ratified.

I think Bolling was rightly decided but I don't think it is sacrosanct in the way that I think Brown is. Put differently, if a constitutional theory produced Brown but not Bolling, I don't think that theory would be out of bounds as monstrous in the way that I think that a theory that doesn't produce Brown--given the Constitution we have--is monstrous. Someone could plausibly say that although it is immoral that the Constitution imposes no equal protection constraint on the federal government, that is nonetheless the law. (Note that this would be complicated by language in Korematsu, which says that there is a kind of racial equality norm applicable to the federal government before Bolling, but I'm imagining that this person would have rejected that language too.)

Perhaps it will surprise Ramsey, Steinberg, or some other originalists that I think Bolling is right but not sacrosanct. If so, let me suggest that their surprise arises only because they entertain cartoonish ideas about what it means to reject originalism. Perhaps they imagine that we nonoriginalists think the Constitution mandates whatever the progressive wing of the Democratic Party favors as a matter of policy at any particular moment. That's a fantasy, however. Serious participants in constitutional theory who consider themselves either nonoriginalist or who can accept those versions of semantic originalism that allow for considerable value evolution at the level of construction or otherwise are not, ipso facto, natural lawyers all the way down. We recognize that there is space between the ideal Constitution we might want and the actual Constitution we have.

Postscript 1: Ramsey accuses me of thinking that originalism must mean old-school expectations originalism. ("Dorf seems still to be operating under an old-style 'original intent' originalism . . . .") Yet both of my prior posts in this thread, as well as just about everything I've written on the subject in the last 25 years (including my 2012 piece in the Harvard Law Review) carefully distinguish semantic originalism (and its variants) from expectations originalism. I honestly don't understand how Ramsey could have read either of my prior posts and come away thinking that I have been hibernating since the 1980s and have only now just awoken to take on Raoul Berger and Ed Meese, blissfully unaware of the changes in originalist thought since they propounded Originalism 1.0.

Postscript 2: As Prof. Jim Fleming has noted, originalism was originally conceived as an ideological program on the right, an "ism."  It still functions largely that way in the courts and in public debate. For that reason, more intellectually defensible versions of originalism have the effect of working as a kind of bait-and-switch that gives cover to the conservative judges and politicians who invoke "originalism" generically to say things like there can't be a constitutional right to same-sex marriage because nobody thought there was such a right in 1868. Solum (understandably) misunderstood me to be accusing semantic originalists of deception by participating in the bait-and-switch, but all I meant was that the old-style originalist judges and public officials who seize on the respectability given all originalism by the greater coherence of semantic originalism are acting in a way that, from the perspective of the average citizen, looks like a bait and switch. I did not mean to accuse any of the academic proponents of semantic originalism of bad faith.