Monday, March 27, 2017

Originalism Here, There, Everywhere and Nowhere

By Eric Segall

There was a time when a handful of legal scholars advocated for an originalist methodology that, if applied honestly, would significantly constrain judicial discretion even in hard constitutional cases. Professors Raul Berger and Lina Graglia, among others, argued that 1) the original meaning of the Constitution does not change; 2) that judges are bound by that meaning; and, most crucially, 3) judges should not invalidate decisions by other political actors unless those decisions are clearly and obviously inconsistent with that original meaning. If the original meaning of the text and history in question were subject to reasonable disagreement, then judges had to defer to other governmental officials.
There are obvious pros and cons to this method of constitutional interpretation. The benefits include leaving most hard decisions to more accountable governmental officials than life-tenured federal judges. The down sides are exactly the same; leaving most hard decisions to non-judicial officials who may well abuse their power and tread on the rights of minorities and other traditionally disadvantaged groups. Wherever one comes out on that balance, this brand of originalism was transparent, coherent, and relatively easy to apply in most cases. If the plaintiff did not meet a heavy burden of proof demonstrating the challenged law or decision plainly violated clear text or uncontested history, the plaintiff would lose the case and the challenged law would be upheld.

No Supreme Court Justice has ever applied this form of originalism. Even the most ardent supporters of Justice Scalia's and Justice Thomas' forms of originalism could not say with a straight face that either one consistently applied a strong deferential attitude to other political actors absent clear text or uncontested history. Their votes in affirmative action, takings, commerce clause, sovereign immunity, standing, and speech cases among many others cannot be reconciled with strong deference to original meaning or text even if smart academics can make creative arguments that these votes are not necessarily inconsistent with original meaning.

There are few legal scholars today willing to embrace a strong deferential theory of originalism (Michael Paulsen and Richard Kay might be exceptions). Instead, the way most legal academics push for originalism today was neatly captured by Professor Larry Solum in his recent remarks to the Senate Judiciary Committee during the Gorsuch hearing and his prepared written statement (consistent with his longer and more detailed scholarship on the subject).

Professor Solum maintains throughout his statement that much more often than not the Supreme Court has acted in an originalist fashion, meaning in a way "that is consistent with the original public meaning of the text." He claims that for "most of American history, originalism has been the predominate [sic] view of constitutional interpretation." He argues that the Justices should not amend the text "on a case by case basis" and he decries those judges and scholars who adopt a "living constitution" approach because doing so is anti-democratic. In his words, the
Supreme Court consists of nine women and men. They are not elected. They are appointed for life terms.... If we must choose between originalism and constitutional text that has been ratified by the representative of “We the People” and a living constitutionalist constitution that is ratified by majority vote of a committee of nine, there is no doubt in my mind about which constitution is the more democratic.
Nowhere in his statement, or in his scholarship, however, does Professor Solum try to reconcile this theory with the hundreds of Supreme Court cases that have overturned laws without a serious basis in text or history, nor does he have any real advice to offer judges who are trying to apply an ancient text to modern problems (other than the meaning of the text does not change). In this regard, he and Judge Gorsuch are of similar minds. Although Gorsuch claims to be an originalist, the best he could do during the hearings to define what that meant was to state his belief that "what a good judge always strives to do, and I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done."

This advice, however, is of course worthless to the Justice trying to decide whether obscenity is "speech," mandates are "commerce," how long Congress must be in "recess" to justify a Presidential appointment, or how to balance the speech rights of corporate persons against the government's interest in fighting corruption, along with hundreds of other examples of contemporary constitutional disputes where just trying to decide what the "text" means will be absolutely no help.

According to a number of academics, including Keith Whittington of Princeton, Solum, and Randy Barnett, a self-proclaimed originalist scholar at Georgetown University, ascertaining what the Constitution meant to the people at the time is called "interpretation" but this original meaning often runs out for judges faced with real cases. When that occurs, judges must engage in an enterprise called "constitutional construction" to apply the text to changing circumstances. Writing with Evan Bernick, Barnett recently fleshed this out a bit by suggesting that in most constitutional litigation, judges must try in good faith to apply the "spirit" of the text to modern problems. 

Despite wearing the originalism labels on their sleeves, both Barnett and Bernick concede that the major "originalist" aspect of good faith construction is simply that the framers would have wanted judges to try and decipher the "spirit" of the text in good faith. In their own words, "judges should wield their discretionary power in a manner that is consistent with the 'supreme law of the land,' consisting in both its letter and its spirit, resolving cases on the basis of the spirit where the letter fails." Of course this is true but it does not limit judicial discretion, because the "spirit" of the vague constitutional provisions that lead to most constitutional litigation will be broad enough to justify virtually any result a judge or justice wants to reach.

For example, both the the text and the "spirit" of the first amendment obviously include protection for freedom of speech and religion, the text and "spirit" of the commerce clause allow Congress to regulate our national economy, and the text and "spirit" of the eighth amendment prohibit "cruel and unusual" punishments. But there is little in either the text or the "spirit" of those provisions that will provide guidance to judges who must decide what legal standards should apply when celebrities are the victims of libel, whether Congress may criminalize local activity that substantially affects the national economy, or whether death by legal injection is cruel and unusual punishment. Only the application of values, politics, and perspectives can resolve those kinds of hard questions, and I don't read Barnett. Berrick, Solum, or Gorsuch to suggest that the values that matter are those held by the people of 1787. As Gorsuch said, being an originalist does not mean returning to the days of the horse and buggy, and I assume no one wants modern day constitutional interpretation to center around the values of people who owned slaves and thought women were the property of their husbands.

During his hearing, Gorsuch cited with approval Justice Kagan's testimony at her own hearing that "we are all originalists." So Justice Kagan is an originalist and so is Justice Thomas but they disagree on virtually every major disputed question of constitutional law. The only way this makes sense is to
define the term originalism in a way that everyone accepts but will do no work for a Justice who has to cast a vote in a real case.  A strong presumption in favor of upholding legislation unless original meaning clearly shows the challenged law is unconstitutional does a lot of work and reduces much judicial discretion but, unlike the original originalists, Gorscuch, Barnett, Solum, Bernick and Kagan are unwilling to adopt such a presumption. Without it, originalism is here, there, everywhere, and nowhere.

22 comments:

CJColucci said...

I am quite certain that, much of the time, the original public meaning of the Constitution is ascertainable by laymen and lawyers, and that, much of the time, it answers the questions asked, with no need to look at other considerations. I am equally certain that the questions that can be so answered are rarely the subject of litigation. Originalism does no useful work.

John Ashman said...

"Originalism does no useful work."

It would do no useful work if not for people like Eric Segall who can't understand simple words.

John Ashman said...

Funny thing. A Federal Compact does NOT give the benefit of the doubt to Federal government. In fact, it is the people who win over the government and the States who win over the Federal government in any fuzzy area of the Constitution. Split decisions should always go to the people or the states and only the states when they are not depriving the people of their rights.

You have a lot to learn about how the Constitution works, how Federalism works, how Natural Rights work. But it's easy to become a lawyer.

CJColucci said...

That's an interesting bit of political philosophy, which may have something to recommend it as philosophy, but it is not found in the Constitution.

Joe said...

"If we must choose between originalism and constitutional text that has been ratified by the representative of “We the People” and a living constitutionalist constitution that is ratified by majority vote of a committee of nine, there is no doubt in my mind about which constitution is the more democratic."

I can't tell but there is certain phrasing here where "originalist judges" (Gorsuch repeatedly latched on to that word as a special snowflake that wasn't like a politician or relied on things like what one had for breakfast) are special while the other side act like "a committee" that "ratify" their own law.

I find that specious in practice, which though we disagree on various things, at least there seems to be an overlap on the point. Federal judges ALWAYS acted as a sort of "committee," a judicial committee, that worked out the answer of complicated questions. It is known that Chief Justice Marshall, e.g., disagreed with some of the things he announced, but when his "committee" of justices talked about the case, that was the net result and he went along with it.

IRL, the justices balance various things to "ratify" or whatever word you want to use and "a majority" determines what the law is for the case. And, they use the lessons of two hundred years and modern society to decide. This is more "democratic" than trying to use original understanding based on knowledge and understanding from let's say 1868. I personally think the text logically results in the judgment that judges generally do anyway and there was a general original understanding that it would. So, I'm unsure the differences really, though 'originalism' is basically a road to confusion, so maybe I'm using it wrongly in the yes of a certain professor.

Shag from Brookline said...

I have an observation on this from Eric's post:


***

Despite wearing the originalism labels on their sleeves, both Barnett and Bernick concede that the major "originalist" aspect of good faith construction is simply that the framers would have wanted judges to try and decipher the "spirit" of the text in good faith. In their own words, "judges should wield their discretionary power in a manner that is consistent with the 'supreme law of the land,' consisting in both its letter and its spirit, resolving cases on the basis of the spirit where the letter fails."

***

I haven't read the article but the letter and spirit aspect arouses my curiosity. With respect to the letter, linguists - and history - can perhaps inform us as to the meaning back in the appropriate time frame. With respect to the spirit, does it mean discerning the spirit in the appropriate time frame or currently? If the former, are there currently qualified professionals who are able to delve into the spirit world of that earlier time? Barnett, Whittington and Solum are New Originalists, as is Jack Balkin, but not all New Originalists are necessarily in agreement on the workings of New Originalism's interpretation/ construction. Barnett and Bernick's letter and spirit approach seems to be a variation on the New Originalism, at least as originally set forth by Whittington. I don't know if Solum buys into the letter and spirit approach. But it seems the New Originalism has an element of faith, at least on the construction side when the letter may not be clear. Do some New Originalists have crystal balls or a constitutional Ouija board to engage the spirits of yore?

John Ashman said...

"the text and "spirit" of the commerce clause allow Congress to regulate our national economy, "

This is incorrect. The "spirit" was NEVER to regulate the economy, but to protect it from arbitrary laws that would stymie it. The regulation wasn't meant to be over commerce itself, but the actual state laws. At no time in the first 100 years did Congress try to tell business what they could or couldn't make, who they could or couldn't hire, what wages they had to pay, what pollution they could or could not emit, what safety rules they had to use, what health care plans they had to offer. ALL they did was settle the precious few disputes between the States AS INTENDED. Then someone decided that "regulate" means "control" and then they decided not long after that "among" means EVERYWHERE for ANY REASON.

You couldn't care less about the "spirit" (intent) of the law, nor its literal meaning, just like any typical socialist.

Joe said...

"[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

The word "arbitrary" isn't there. Nor "over state laws." It just says, the literal meaning, that Congress has the power to regulate certain types of commerce. The Necessary and Proper Clause adding to said power. Jack Balkin has a long article, citing original history and understanding, on the matter. Lashing out at others while adding words to the text is fairly common though. Still, glasshouses.

Congress applied the text as the needs of the country warranted per the judgment of the members elected by people as commerce became more interconnected and so forth, more laws being passed. The same applied locally; locally there was a lot more law later than earlier. The broad powers here was "intended." This factored into why so many were wary of the Constitution. It greatly expanded federal power.

When Congress regulated commerce with the Indian Tribes, to take an example, a range of limitations were present, including in the first hundred years. In the 1860s, civil rights acts were passed by Congress that covered business contracts too. Laws involving nuisance arose in various instances where the federal government was involved. Why wouldn't regulation of interstate waterways, including involving steamboats etc., not be involved here?

Gibbons v. Ogden & other opinions recognized the breadth of the power in the 1820s: "If Congress has the power to regulate it, that power must be exercised whenever the subject exists." An embargo was even applied that blocked any commerce. "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed." Merriam-Webster has "regulate" as part of the meaning of "control."

I do not claim Chief Justice Marshall is the be all/end all here. But, he has the benefit of being right here, even if others deemed him wrong. It would be interesting how he would take some of the arguments of the "originalists" of today.

Graham said...

Why do you describe Professor Barnett as a "self-proclaimed originalist scholar at Georgetown University"? Perhaps you did not intend it, but that reads like a passive-aggressive attack. Is there any doubt that he is a scholar of originalism?

CJColucci said...

Is there any doubt that he is a scholar of originalism?

I won't presume to speak for Prof. Segall, but for someone to be "a scholar of X," there has to be an X, so, yes.

Graham said...

I won't presume to speak for Prof. Segall, but for someone to be "a scholar of X," there has to be an X, so, yes.

This is just pointless snark. You presumably do not deny that there is an approach to legal interpretation called "originalism" that has generated huge amounts of scholarly work and plays an influential role in actual judicial decisions. You can think it is, at the end of the day, bogus and unhelpful, but that does not mean it is not a subject of academic inquiry. I am an atheist, but I acknowledge that there are scholars of religion.

John Ashman said...

Barnett is a scholar of the Constitution, which is more than can be said for Segall. I'm not a lawyer and I understand the Constitution more than Segall does. No university should allow anyone that biased, let alone ignorant, teach children beyond 3rd grade. If that.

CJColucci said...

No, actually, it is quite pointed snark. The people who claim to be scholars of originalism are not like scholars of astrology -- students of practices and beliefs held by others that are not, in fact, true -- they are themselves astrologers, maybe very technically proficient astrologers, as astrologers understand themselves, trying to disocern what is "in the stars" for a Taurus or a Gemini. One could conceivably be a scholar of originalism in the same sense that there are scholars of astrology, but no one who proclaims himself an originalist or a scholar of originalism is proclaiming himself to be such.

Shag from Brookline said...

Originalists may come up with a Symposium/Seance on Originalism.

John Ashman said...

Can any of you people quote Randy saying "I am a scholar of originalism"? I'm going to bet you can't. He is a Constitutional scholar, who uses originalism (Contemporary Constitutional Analysis) as his prism. The option being "Whatever I Want To Do Because I'm a Librul Progressive"

John Ashman said...

Segall is a self-professed scholar of "Words and Phrases Have No Meaning"

Joe said...

"Barnett is a scholar of the Constitution, which is more than can be said for Segall."

Words have many meanings.

Thus, "scholar" here seems to mean "in the way I think is right."

I recently re-watched the Ken Burns "Civil War" series. Some are not big fans of Shelby Foote's view of the Civil War. But, have not seen them say something like "he is not a scholar of the Civil War" at all. People can be wrong and still be scholars.

Prof. Segall argues certain words (like "judge") have meanings that I in various ways disagree with. This is different from him thinking words are meaningless.

John Ashman said...

"No fixed meaning" then. IOW, he can decide what the words mean and he believes his opinion is superior to those who wrote the words and explained in detail what they meant by them.

For instance, James Madison was warned about the possible interpretation of the Power to Tax Clause in which statists would claim that "provide FOR the general Welfare of the US" means that the government could make any law, spend any money if it believes it to be for the "general Welfare" or even the individual welfare of any subset of people. And Madison RIDICULED this as completely irrational and illogical (in the sense that a old school proper, highly educated person does that in print). AND YET, this laughed off "interpretation" is actually "law" today. Not just "precedent", but an entrenched virtual part of the Constitution that can be claimed again and again for whatever reason. Even though it simply doesn't exist.

There is no "taxing and spending" clause. There is no "general welfare" clause. There is the Power to Tax Clause and it has three limitations on taxation, none of which involve taxing people in order to force them to do what the government wants.

John Ashman said...

"Provide FOR" means to prepare for, to see a need and take action to ready for it, but it is NOT a power to spend, not a power to do anything, except, in this case, to TAX and put the money in SAVINGS. Explicitly detailed by Jefferson and Madison.

Why would their understanding of that phrase be inferior to someone living today? I suggest that no one understood the phrases better than they did.

Joe said...

""No fixed meaning" then. IOW, he can decide what the words mean and he believes his opinion is superior to those who wrote the words and explained in detail what they meant by them."

Eric Segall doesn't have the power on his own to determine what words mean and he has written various articles pointing out that even looking at "those who wrote" that the opinions of those deemed "originalists" are wrong.

If we want to appeal to Madison, Madison said the meanings of words are determined over time as they are applied in real life situations, the raw words so opaque that even God himself speaking to us will lead to confusion. The ultimate meaning is not "fixed" in various respects, since knowledge is not fixed, especially as applied by the people with the duty of determining the meaning. Thus, he changed his mind on such a basic thing as the national bank.

As CJ noted early on, in a basic way, the words have easily determined fix meanings. 35 years for POTUS and such. But, those aren't the great debates. Thus, you can quote a few words of Madison. He had great disputes with Hamilton on what they meant. Federalist v. Federalist. And, that was without all the water under the bridge since then, dealing with the rightful applications in a future they barely could imagine (see McCulloch v. Maryland, written by someone who was there at the Founding). "We the People," the living as Jefferson agreed is proper, apply the Constitution based on current understanding.

As to words not having fixed meanings, Kory Stamper at Merriam-Webster can tell you about that being how language works.

John Ashman said...

Right, Madison said that's why the original meaning must stand forever, not allow the meaning to be changed by time. Thanks for agreeing with me.

Originalists aren't perfect and originalism has gotten better and more stringent, to the point where Scalia stopped calling himself an originalist and started calling himself a texualist. When he and Thomas disagreed, Thomas almost always took the more originalist position.

The areas of disagreement are where the LivCons are so embarrassingly wrong that my 8 year old could divine they are full of crap. What about "necessary" is hard to understand? What about "among" is hard to understand?

And Hamilton is aways used as the "proof" but he was an extreme outlier with barely concealed ulterior motives. He always wanted the Federal government to be more powerful and totalitarian than the Constitution allowed since before it was written. He just saw it as a step in the right direction. It's like inserting Marx into a discussion about capitalism.

John Ashman said...

Care to explain the Power to Tax Clause? Commerce Clause? Naturalization Clause? Necessary and Proper Clause? 2nd Amendment?

What words confuse you? What makes you think it means something other than what it says? I notice that LivCons always want to avoid arguing for their interpretation and instead simply make attacks on originalists and originalism.