Wednesday, April 05, 2017

Professor Peter Smith and Originalism as Levels of Generality

By Eric Segall

I have been writing, reading, teaching and talking about originalism since 1995.  I try to keep up with the literature (a daunting task) but that perseverance can pay great dividends as it did this week when reading Professor Peter Smith's new article "Originalism and Level of Generality." Smith provides a wonderful explanation of just how far most contemporary academic originalists have strayed from a theory separate from "living constitutionalism," while also pointing out how inconsistent Justices Scalia and Thomas have been in their selective use of historical reasoning. While others including Mike and I have also told a similar story, Professor Smith has done an excellent job recounting it and bringing it up to date. I have never met Professor Smith but anyone interested in the current debates over originalism should read this piece.

Professor Smith begins with an argument well known to constitutional theorists: the resolution of constitutional cases requires judges to select what level of generality to use to interpret the Constitution's open-ended phrases. He points out that in cases involving bans on same-sex marriage and the 14th Amendment, for example, we could ask the following questions (among many others):

1) How would the people who ratified/voted for the 14th Amendment have answered the question whether bans on same-sex marriage violate the clause?'
2) Is the meaning of the 14th Amendment to mandate "equality?"
3) Is the meaning of the 14th Amendment to prohibit "caste"-like legislation?

Justice Kennedy in Obergefell asked a combination of questions 2 and 3 while Justice Scalia in dissent in that case asked question 1. Which level of generality the decider selects will decide the case, and that is true for many constitutional questions. For example, one could ask whether the folks in 1868 thought that the Fourteenth Amendment prohibited abortion laws or, asked another way, did the "objective meaning" of the Amendment in 1868 have anything to do with abortion? The answers to both questions are clearly no. But one could also ask whether the meaning of the Amendment at the time protected personal autonomy with regard to fundamental issues of family and child rearing? If that was the meaning of the Clause, then it could easily be applied to abortion laws today.

The essential point is that a sincere originalist method can lead to narrow or broad levels of generalities, and therefore originalists can reach just about any result in any case involving the open-ended provisions of the Constitution. Moreover, there is no way to privilege such a choice separate from one's views about the appropriate role of the Court in our constitutional scheme. As Mike (along with Professor Tribe) wrote long ago: "The selection of a level of generality necessarily involves value choices."

Professor Smith then recounts how the original originalists like Raul Berger and Lino Graglia advocated for a deferential originalism employing the most narrow level of generality available. Unless the framers of the constitutional provision at issue would have deemed a challenged law impermissible, judges need to defer to the political branches, whether the issue is abortion, segregation or corporate spending as speech. As I've argued, this method has pros and cons but it is based on a coherent theory of constitutional interpretation. In the words of Professor Smith, the original originalists thought "it was simply implausible to believe that the framers intended to authorize unelected judges to find, in the Constitution's vague and open-ended provisions, specific rights not explicitly authorized in the text."

The major problem facing these original theorists was that it meant Brown v. Education was wrongly decided, and politically, that became a non-starter. Thus, Judge Bork eventually talked about how the Fourteenth Amendment was about racial equality writ large, not segregated schools, Scalia eventually agreed, and we were off to the races. After all, the Equal Protection Clause says nothing about race specifically and if equality is the norm, then women, gays and lesbians, and for that matter any identifiable group can make strong arguments under the Clause (not that Scalia and Bork ever admitted that truth).

The best part of Professor Smith's article is how he explains the transition from this deference-based model of originalism to the "construction zone" model currently held by folks like Randy Barnett, Larry Solum, and Ilya Somin, among others. This model, which is based on the assumption that originalism requires that vague and open-ended constitutional provisions must be interpreted pursuant to broad levels of generality, leads to unconstrained judicial decision-making that is indistinguishable from living constitutionalism. Professor Smith smartly points out that it was this new Originalism method of constitutional interpretation that nominee Elena Kagan was referring to during her confirmation hearings when she she said "we are all originalists." As Smith says, she could just as easily have said, "we are all non-originalists."

There is much more to this fine article. I highly recommend it to anyone interested in the originalism debates.


John Ashman said...

What's more amusing is how the LivCons of 1800 would be offended by the LivCons of 1850 who would be shocked by the LivCons of 1900 who would be dismayed by the LivCons of 1950 who would be surprised by the LivCons of 2000 who are astounded that Originalists of 2017 have debates about proper small applications of Constitutional Law.

Shag from Brookline said...

John's timeline on LivCons starts with 1800 through 2000 and then shifts to Origs in 2017. Perhaps that's when he thinks the timeline for Origs begins? What might be more amusing would be a timeline for the Origs movement and the changing versions that continue to date.

Shag from Brookline said...

In addition to Peter Smith's article, I recommend Logan Everett Sawyer's article "Principle and Politics in the New History of Originalism." (I have this on my desktop but the URL is not disclosed. Those interested may find it by Googling. It's 31 pages .) The nomination of Judge Neil Gorsuch, an originalist, being considered in the Senate now means a lot to originalists as should be obvious from what appears to be coordinated attacks by originalists on non-originalists, the latter not being coordinated. Check out Larry Solum's Legal Theory Blog, the Originalism Blog and Randy Barnett's posts at the VC. Sawyer's article calls for reviews of the histories of originalism, the history that may be political and the history that may be considered principled in the legal academy. Will originalists themselves examine and determine originalists who are political as distinguished from those considered principled? I think there has been quite a bit of line crossing between politics and principle, especially as demonstrated recently by legal academic originalists in connection with Judge Gorsuch's nomination. The stakes are high. There is one definite originalist on the Court and one maybe. Gorsuch's appointment would add strength. Not all conservatives on the Court are originalists. And there are many shades of originalism, with significant differences in what are claimed to be theories. (Think of 54 "Big Bang" theories!)

From the beginning there have been doubts about the meaning of the Constitution. I recently read Paul Finkelman's lengthy article on "Frederick Douglass's Constitution," setting form Douglass's changes in views over the years before the Civil War, first that the Constitution supported and protected slavery and then changing his views to work within the Constitution to end slavery. Douglass's change in his views was political. The Civil War Amendments aimed at changing the Constitution from a document that supported and protected slavery. The differing views on the Constitution before such Amendments were not categorized as either originalism or living constitutionalism. The current originalism movement came along in the 1970s with the political help of Reagan's AG Ed Meese. Changes in the movement came about to address weaknesses in the concept of the original intent originalism. There was a racial element to this movement, to wit, the Warren Court's 1954 unanimous decision in Brown v. Bd. of Educ., the foundational decision of the Warren Court that was claimed to be activist by the movement. The Federalist Society came along to support the movement. Only two admitted originalists served on the Court since the movement started. One of them died last year and that's the seat originalists are pushing for Judge Gorsuch.

John Barron said...

I'm not sure an originalist even needs to ask that question.

The right to contract is an essential corollary of the right to own property, as you must be able to acquire and dispose of it to actually own it. In a secular society, marriage is a mere contract, with default terms drafted by the State. Rights are retained by the individual unless ceded to the State; all that a State can do is abridge rights and then, only in accordance with the authority granted to it. As the right to marry is fundamental, Loving v. Virginia, 388 U.S. 1 (1967), the State has to show a compelling interest in preventing two persons from entering into that marriage contract. As the State cannot show that it is in any way harmed when Fred and Ted decide to wed, it has no colorable authority to prevent them from doing so. This must be so as long as ours is a constitutional Republic with limited government powers.

Scalia worked this out in his Lawrence dissent.

Samuel Rickless said...

Thanks for this post, Eric. I've read the introduction to Professor Smith's article, and I agree with much of what he says (and with similar statements that you and Michael and other have made in other work). But I am going to have to take issue with the very first sentence of the article, which, I think, illustrates a real problem at the heart of most of the originalism debate, namely ignorance of linguistics and the philosophy of language (yes, I've said it before). Here's the first sentence:

"In concluding that the Fourteenth Amendment guarantees a right of same-sex couples to marry, Justice Kennedy’s opinion for the Court in Obergefell v. Hodges was avowedly non-originalist in its promotion of the idea that changing societal norms can lead to the evolution of constitutional meaning."

Here is what Justice Kennedy wrote: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Several points. Justice Kennedy appears to be talking about the meaning of liberty, not the meaning of "liberty". The meaning of liberty is not a kind of linguistic meaning, the kind of meaning that is involved, e.g., in the translation of words from one language into another. The meaning of liberty is, at least arguably, the *significance* or *importance* of the property of being free. Read in this way, Justice Kennedy is not talking about the meaning of the word "liberty" at all. And hence what he says in Obergefell here does not speak to the originalism-nonoriginalism issue. Second, suppose that Justice Kennedy is indeed talking about the meaning of "liberty". In that case, what Justice Kennedy says is potentially relevant to the originalism-nonoriginalism controversy, but what he says doesn't suggest that he thinks that the meaning of "liberty" has evolved. What Justice Kennedy says, on this interpretation, is that we "learn" the meaning of "liberty". This doesn't entail that the meaning of "liberty" changes over time. What Justice Kennedy says is perfectly compatible with the meaning of "liberty" staying the same over time: what changes, in his view, is how much of the meaning of "liberty" we *understand*. Now I grant that the thesis that those who ratified the Due Process Clause did not fully understand the meaning of the word "liberty", and that we have come to learn more and more about the meaning of "liberty" over time, is strange. That's like saying that the ratifiers didn't fully understand the meaning of the word "soldier" in 1791, but that we have learned more and more about the meaning of "soldier" since then. But this (among other considerations) is what leads me to think that Justice Kennedy wasn't actually talking about *linguistic* meaning in the Obergefell sentence quoted by Professor Smith. This shouldn't be a total surprise. The word "meaning" is itself ambiguous. When I talk about the meaning of life, or the meaning of the Cubs winning the World Series, or the meaning of liberty in a democratic society, I am not talking about the meaning of a word or phrase.

I do think that this is a very good example of the need for legal theorists and judges to be open to the insights that can be gleaned from linguistics and the philosophy of language.

Shag from Brookline said...

I have read Samuel's comment and think I understand it. I plan to reread it later today to make sure. The use of quotation marks for certain words in the comment require me to make a more careful reading later. I think of the word democracy that I do not recall being specifically mentioned - as opposed to republic, which is - in the Constitution. Should democracy be understood as impliedly interwoven into the Constitution as it has been amended over the years? I recall a recent article that suggested yes. [I'll provide a cite later.] But Samuel's comment has put this potential conundrum in my head:

Give me liberty or give me "liberty," or vice versa.

I think I may agree with Samuel's comment.

Shag from Brookline said...

Jack Balkin is part of the New Originalism. But I have been unable to locate his views on the originalism of Judge Gorsuch. All New Originalists are not necessarily in agreement on originalism. Perhaps Jack has expressed his views on the commentaries of fellow New Originalists Randy Barnett and Larry Solum. If so, can someone provide a link?

Joe said...

I'm tired of this originalism talk (never quite know what the word means) but Shag thrives on it. And, it gives us a chance to get new inputs. My final reply in a recent thread regarding originalism and text etc. was not posted because of limited posting windows (two days), but enough was said anyhow.

Shag from Brookline said...

Originalism is non-fattening, legally speaking, as it is living constitutionalism lite. (Cite: Jack Balkin's "Living Originalism.")

Joe said...

They keep fit because of the effort and contortions used to explain how they are special snowflakes, just apply the law, no matter what they have for breakfast.

Shag from Brookline said...

The article on democracy's role in constitutional interpretation that I referenced in my earlier comment on Samuel's comment is Stephen E. Gottlieb's "Democracy Essential to the Legitimacy of Constitutional Interpretation" available at: