Saturday, February 20, 2016

Originalism Can't Fade Away Because it was Never Really Here

By Eric Segall

A few days ago, Eric Posner wrote an essay suggesting that, with Justice Scalia’s death, originalism as a legal theory will slowly fade away. Generally speaking, he wrote, law professors write “scholarship with the hope and expectation that their work will influence public policy.” But, with only one Justice remaining on the bench who proclaims to be a serious originalist (Justice Thomas), and given Thomas' “idiosyncratic” voting patterns, neither Supreme Court litigators nor the other Justices will spend much time making originalist arguments. Inevitably, assuming the next Justice is not an originalist, which is likely, the only audience left for originalists will be themselves, and in the long run the motivation to write for each other will not be sufficient to keep the originalism flame alive.

Posner’s essay led to responses by Lawrence Solum, Michael Ramsey, and Jack Balkin.  I want to focus here on Balkin’s reply. Professor Balkin is one of our most influential legal scholars who has made enormous contributions to our understanding of the law and the Constitution. Unfortunately, his views on originalism have always been, to say the least, puzzling.

As he mentions in his reply to Posner, Professor Balkin has “skin in the [originalism] game” because of his book “Living Originalism.” No, that is not a typo. As I’ve written here before (and as Mike Dorf argued at length here), Balkin’s theory of originalism, which he says supports Roe, allows virtually any result in any case because he believes that identifying a provision of the Constitution as “vague” rather than “specific” is both an originalist move and one which then authorizes judges to use modern standards to decide hard cases.  Of course, that move makes originalism indistinguishable from “living constitutionalism,” and also makes history largely irrelevant to constitutional law litigation (which is how it should be).  Professor Balkin, a progressive, obviously prefers that history be largely irrelevant to modern cases so that we can move towards a more just and egalitarian society.

Balkin’s reply to Posner argues that “originalist arguments” will never go away for a number of reasons, including that judges rely on them in cases of first impression; judges use them to overrule precedent (law not values made me do it); and originalists arguments are so important to conservatives that “conservative think tanks, lawyers, and law professors will continue to talk, write, and argue in originalist terms, because originalism continues to provide them a common way of thinking about the Constitution and solving particular legal problems. The conservative movement is not about to abandon originalism, and as long as there is a conservative movement in the United States, you can predict that originalism will remain a powerful force in legal argument.”

All three of these replies miss the point. Yes, judges may well continue to trot out originalist evidence to support results they have reached on other grounds. But so what? They did that long before Justice Scalia or Judge Bork came onto the scene, as a way to use legal rhetoric to mask value choices. Balkin admits that “originalist arguments have been commonplace in the opinions of the Supreme Court of the United States from the country's inception, even if very few Justices have adopted originalism as a comprehensive theory.”

Balkin says that Scalia did more than use originalist arguments but actually embraced it as a “comprehensive theory.” Certainly Scalia said he did that but as I’ve argued before, and Mark Graber just wrote on Balkin’s own blog, in the real world Scalia “was a judicial activist who struck down laws based on a contemporary constitutional vision that he campaigned for aggressively in both legal and political settings.” In other words, even Scalia did not vote on an originalist basis and, as I’ve pointed out, neither does Justice Thomas. In this sense, I disagree a bit with (Eric) Posner because, as a result-generating device, originalism cannot fade away because it was never here to begin with.

The harder question is, without Scalia’s loud voice proclaiming over and over that the Constitution is “dead, dead, dead,” will the pretense of originalism be harder to maintain? Eric thinks so while Jack believes conservatives will continue to talk the talk. I’m not sure but I do know virtually no one outside of legal academia will care.

A good analogy would be critical race theory, which is an important part of the academy’s progressive culture and not likely to go away soon. There are conferences devoted to the topic, and it provides a common language for many. I suspect there are as many legal scholars devoted to critical race theory as originalism. 

I have significant sympathy for the critical race theory movement and agree with much of its descriptive and normative account. But, no one suggests that critical race theory drives results when cases are actually brought in front of real judges and, the sad truth, is that, outside of academia, who cares about critical race theory?

            The main difference between critical race theory and originalism is that the latter had Scalia and has Thomas singing its praises even if they didn’t vote accordingly, whereas the former doesn’t have a Supreme Court spokesperson. With Scalia gone, the energy for the theory among non-judges may well dissipate as Eric suggests. But, for real folks practicing real law in front of real judges and their clients, originalist arguments will be what they have always been, with or without Scalia, window dressing for judges and interesting fodder for academic debate.


Hashim said...

Eric, how do you square these assertions with recent confrontation clause and jury trial jurisprudence? How did originalism serve as "window dressing" in those cases? Were they pretexts for justice scalia's secret love of criminal defendants? For "real folks practicing real law" in these particular areas, I suspect the impending turn away from originalism is going to be all too real, and all too harmful to criminal defendants.

Eric Segall said...

There are so many areas where he rejected originalist arguments (takings, affirmative action, commandeering, campaign finance reform, standing, etc.) why do you think it was originalist arguments that generated the few results you mentioned? There simply is no answer to that question. He was proud of his few liberal pockets that he trotted out all the time. Who knows why but they really don't matter to this debate. In the vast majority of cases where he ruled state and federal laws unconstitutional, the originalist arguments were weak at best.

Hashim said...

I think it because I and my fellow co-clerks were actually there when he was deciding cases, and thus don't need to engage in rank and false speculation about what was motivating his decisionmaking. Just because you think that some of his decisions weren't consistent with originalism doesn't mean that his contrary view of the originalist evidence wasn't driving his decisions (along with the constraining effects of stare decisis). I won't go through all of your purported counter-examples now, though I've addressed some of them at other times in comments on this blog (e.g., on affirmative action, there was no widespread pattern of *race-based* affirmative action at the *State* level in 1868; actions based on *former status as a slave* were irrelevant since not race-based; and Congressional actions were irrelevant since the EPC obviously didn't apply to Congress in 1868, though it did by the time of Adarand due to the stare decisis effect of Bolling v. Sharpe). Reasonable people can disagree about what originalism entails for some issues, especially where historical evidence is sparse on the practice in question. But suffice it to say that if the parties or other Justices had presented evidence that convinced him that the original understanding conflicted with his preferred outcome, I have no doubt that he'd have gone with the former rather than the latter.

Cornelius Ogunsalu said...

Originalism as a baseline is here to stay . . . regardless of the eventual outcome of an opinion, all inquiries begin with looking at the Constitution as written. Another self-proclaimed [originalist] like Scalia should be sought out as his replacement.

Eric Segall said...

No Hashim. Scalia consistently struck down laws where there was no originalist evidence supporting the decision. Burden was on him in light of his rants about judges overstepping their roles. He is the one who went around the country yelling about judges and over aggressive judicial review. The issue was not about lawyers presenting originalist evidence to him but him demonstrating an originalist basis for his acts of judicial aggression. This, he failed to do most of the time.

12:29 PM Delete

Unknown said...

Eric -- that doesn't make much sense. In cases where Justice Scalia *invalidated* laws, the critical contrary evidence would be the widespread and uncontroversial existence of such laws at the time of the relevant constitutional provision's enactment. So I suppose Scalia could have added to every opinion invalidating a law (and not based on stare decisis) a sentence saying "I have found no evidence that such laws existed in such manner," but that wouldn't really add much value. Instead, when the parties and the other Justices actually tried to identify such laws in such manner, Scalia would extensively address them. See, e.g., Printz on commandeering. But in the absence of such a proffer by the parties or other Justices, it was sufficient for Scalia to assure himself that there were indeed no such laws in such manner (as one would expect given the failure of the parties or other Justices to argue otherwise).

To be sure, the absence of such laws in such manner isn't itself proof that the laws are unconstitutional: it's always possible that the laws were constitutional and simply not originally enacted as a policy matter. But, at the point at which there was no historical version of the laws, the "evidence" for originalists will necessarily become more abstract -- reasoning by analogy from the types of laws that did exist at the time or that were invalidated at the time. In other words, originalism is far more powerful in identifying laws that are constitutional than laws that are unconstitutional, because the presence of historical antecedents refutes unconstitutionality whereas the absence of historical antecedents is consistent with unconstitutionality but by no means determinative of it.

Anyway, the tougher case for originalists isn't what your objection is actually directed to. You're complaining about Scalia's repeated criticism of judges overstepping their roles. And those criticisms were almost invariably targeting situations where modern judges invalidated practices that were widespread and uncontroversial at the time of the relevant constitutional provision's enactment (e.g., gay marriage; sodomy; etc.) For those types of laws, as discussed above, Scalia could avoid inconsistency only by proving a negative -- by proving that no such laws existed in such manner, and the only way to persuasively prove is a negative, beyond mere assertion, is to refute the counter-examples proffered by the parties and other Justices. I'm not aware of any case where the parties and other Justices tried to proffer such counter-examples and Scalia simply ignored them. And while you might not find his response persuasive in all cases, that again just proves at worst that reasonable people can disagree about how to apply originalism, not that he wasn't really applying originalism (and just inexplicably reached liberal results in numerous categories of law even when supposedly exercising his policy preferences).

Hashim said...

PS. In case it wasn't obvious, the last post was mine (not sure why it posted as unknown).

Eric Segall said...

This piece by Erwin neatly lays out Scalia's judicial aggression. You just can' with a straight face argue these wide pastures of constitutional law have an originalist basis.

Asher Steinberg said...

I think it's extremely easy to argue with a straight face that Heller, Citizens United, Shelby County, Lopez, and the Grutter dissent have an originalist basis (even though many of them may be wrong as an originalist matter). Your thinking otherwise probably flows from a misunderstanding of originalism as a theory of original expected applications - the same misunderstanding that leads you to think Balkin isn't really an originalist. But bracketing the extent to which originalism was a results-generating device for Scalia, this post seriously overstates things.

First, it only takes one committed originalist for originalism to matter on the Court. Precisely because Thomas's voting patterns are "idiosyncratic" (thanks to his genuinely committed originalism), advocates need to worry about his vote - as they worry about Kennedy's, for the same reason. For example, in Michigan v. EPA last term, Thomas announced he thinks that Chevron is likely unconstitutional on the basis of an (in my view, specious) originalist argument made in a recent book by Philip Hamburger, after he had written and joined opinions expanding Chevron's domain on several occasions in the last ten years. There are, I think, enough Chevron skeptics on the Court (not all of whom are conservatives who are skeptical of the administrative state in general and this administration's regulations in particular) for Thomas's new originalist view of Chevron to potentially make an outcome-determinative difference to Chevron's future. Thomas may also, for originalist reasons, provide the crucial fifth vote to sustain the Apprendi revolution in jury trial rights and the Crawford revolution in confrontation rights - none of which would be predicted by his ideology.

More generally, you underestimate the extent to which originalism genuinely matters, on occasion, to the other Justices. Originalism wasn't just window-dressing in Noel Canning; the Court's unanimous decisions that pro forma sessions aren't recesses and that recesses of less than ten days are presumptively too short to trigger the Recess Appointments Clause are, I suppose, explicable in non-originalist terms, but they can't readily be traced to the liberal Justices' ideology. Originalism tends to be extremely salient in any constitutional case of first impression; observe how virtually every commentator on Ted Cruz's eligibility for the presidency has made originalist, and really only originalist, arguments, even though many of them aren't normally originalists. When there isn't a lot of doctrine in the way, people inevitably turn to the language of the constitutional provision at issue, and naturally attempt to interpret it as it was originally understood, not in an anachronistic fashion.

Hashim said...

Eric: not a single example in Chemerinsky's piece even attempts to make the showing discussed above: namely, that Scalia has voted to invalidate a type of law in the circumstances where he's criticized the liberals -- i.e. where the type of law was widespread and uncontroversial at the time of the enactment of the constitutional provision at issue. And that's because no such showing is possible:

(1) gun control: the majority and dissenting opinions in Heller addressed the historical evidence at length. I think the majority opinion has far the better of the argument. But, at worst, this is a prime example of disagreement about originalist evidence, not Scalia's invalidation of federal/state laws that were unquestionably understood as constitutional at the time of the 2A/14A.

(2) campaign finance: again, with respect to independent expenditures (or even campaign contributions) by individuals, there was no history of such laws immediately after 1791 at the federal level or even in 1868 at the state level. Ditto for *federal* restrictions on *state-chartered* corporations immediately after 1791, and for *state* restrictions on corporations chartered *in other states* in 1868. Even for *state* restrictions on corporations chartered *in that state* in 1868, I don't believe there's any history of campaign-finance restrictions (as opposed to content-neutral restrictions) -- and, in any event, the Ct has never dealt with such a narrowly-tailored law.

(3) Section 5 of VRA: once more, neither the 1868 Congress nor even the 1965 Congress was so ridiculous as to pass a law that used a State coverage formula based on 30-year-old data. And, as Chemerinsky's own article obliquely admits, the SCt in the immediate wake of the 14A didn't hesitate to invalidate federal laws that exceeded Congress' powers under Section 5 of the 14A.

(4) Lopez/Morrison: these cases are indisputably right on originalist grounds. No one other than Jack Balkin would argue with a straight face that the New Deal cases were consistent with the original understanding of the power to regulate interstate commerce.

(5) Printz: as with Heller, the majority and dissent address the historical evidence at length. Again, I think the majority has by far the better of the argument, but such reasonable disagreements don't prove your thesis regardless.

(6) affirmative action: already discussed above why there has been no showing of *state* *race-based* programs after 1868 that were widespread and uncontroversial.

(7) non-discriminatory funding for parochial schools/death penalty/no abortion rights/no gay rights: again, this is all obviously right on originalist grounds, since such laws *were* widespread and uncontroversial at the time of the relevant constitutional enactment.

So you can keep alleging unsubstantiated inconsistencies, and keep ignoring the myriad swaths of caselaw where Scalia reached liberal results for reasons that are inexplicable other than originalism (e.g., confrontation clause, jury trial, punitive damages, dormant commerce clause, etc.). But saying it doesn't make it so unless you're preaching to the choir or the uninformed (which aren't mutually exclusive sets).

Joe said...

To deal with a small matter, corporations were regulated in the relevant time periods, including corporations having limited purposes under the terms of incorporation and multiple campaign limitations including on lobbying around the time of the 14A ratification existed. Prof. Zephyr Teachout, to take but one example, wrote a book covering some of this.

I noted this in the past but lack of knowledge or even simply wrong about history is not really a bar from assurance here. Thus, the level of assurance, mixed with scorn, even when engaging with law professors here by a certain person. Dislike "tone" policing, as some say, but it is symbolic of the sorts of things Scalia did.

There is a long "history of campaign-finance restrictions" even if one doesn't "believe" it so though apparently that might have some special meaning since "content-neutral restrictions" are differentiated. But, regulations of corporations at issue here are "content neutral," so what that even means is unclear. It is not like only some subject matters or viewpoints are regulated. It is a general category of person, like the Supreme Court upheld limits on non-citizens in respect to campaign finance spending.

Joe said...

On the professor's position, I can see some confusion because I think Scalia believed he was using originalist arguments. On the merits, maybe, a case can be made it was such a shoddy use of them that the word really has little useful meaning. I think "originalism" is so plastic that it isn't useful, while being problematic for other reasons too. Though, one charm is that it can be used to get you so many places, so Jack Balkin can argue he is using originalism.

Eric Segall said...

Hashim, we will have to agree to disagree because the premise of your arguments, that one has to find a similar law that was passed in the past in order to criticize aggressive judicial review, is simply silly, and because once you say the historical materials in Printz could go either way, you have lost all credibility. We should move on.

Asher, if you believe that Citizens United (the reasoning not the result) can be justified on originalist grounds, that the framers would have thought corporations had a constitutional right to spend money on elections, then we too have nothing to talk about. If you indeed think Citizens United can be justified on originalist grounds, then you are just a living constitutionalist in disguise, and like Barnett and Balkin, you have drained originalism of all meaning (something Scalia did through his votes all the time).

Hashim said...

Eric: fine by me, though you've misstated the premise of my argument. I didn't say that one has to find a similar law that was passed in the past in order to criticize aggressive judicial review. I said that your criticism of Scalia's supposed hypocrisy required identifying similar laws, since *that* was what he was criticizing. He wasn't just generally criticizing aggressive judicial review -- he was most specifically criticizing the invalidation of laws that were widespread and uncontroversial at the time of the relevant constitutional provision's enactment. Those are the easy cases where originalism compels upholding the law, and invalidation of the law is the most aggressive form of judicial review; I don't think he ever did the opposite, and you certainly haven't identified a counter-example, despite numerous opportunities to do so. Beyond that, I freely admitted in the second paragraph of my second comment that the historical absence of such a law doesn't compel the conclusion that the law is unconstitutional. And it's certainly possible that Scalia may have gotten some of those harder cases for originalism wrong, by drawing the wrong analogies/inferences about what the original understanding would have been for laws that didn't exist at the time. But you've hardly demonstrated that either, much less shown hypocrisy in that regard. Anyway, happy to move on with that clarification.

Joe: perhaps you didn't read my response closely enough. I differentiated among (1a) federal laws regulating political activity of state-chartered corporations, and (1b) state law regulating political activity of out-of-state corporations, versus (2) states regulating political activity only of their own corporations. The SCt's cases have always involved (1a) and (1b), not (2). And I don't believe that there were examples at time of 1A or 14A of cases (1a) and (1b). The SCt liberals certainly have never cited any -- the earliest laws they cite have been from turn of century (and even those are limited to contributions, not expenditures).

Your examples certainly don't fit the bill: "corporations having limited purposes under the terms of incorporation" is at most an example of case (2) -- a state's regulation of its own corporations -- and it is not even necessarily that, since requiring a corporation to limit its activities to the purposes stated in its articles of incorporation, and limiting the scope of permissible purposes, is a content-neutral regulation (by which I mean, per Reed and other cases, a regulation that doesn't turn on the content of the speech). That's a far cry from selecting one type of political speech out of all other types of political speech and banning that. Likewise, restrictions on "lobbying" are hardly analogous to restrictions on independent expenditures: the former merely restricts access to govt officials, whereas the latter restricts pure political speech to the public, which is at the heart of the 1A.

So my tone reflects the fact that you keep accusing me of not knowing, or ignoring, history, but then keep giving historical counter-examples that are demonstrably inapposite, or keep generically referencing so-and-so's books on the subject without identifying specific historical examples from those books. Again, it'd be pretty remarkable if the liberal Justices on the SCt just missed all these great historical counter-examples because they're not as well-read as you are.

Edward Keller said...

I believe Scalia will be missed most for his Fourth Amendment decisions.

Kyllo v. United States and United States v. Jones will probably be revisited when the Apple controversy reaches the high court