Tuesday, April 11, 2017

The Stakes of the Originalism/Textualism Debate

by Michael Dorf

(Updated with a Postscript below.)

For a period after Justice Scalia's death, when it appeared as though President Obama would be able to name Scalia's successor and that a Democratic president would fill future vacancies, various commentators wondered whether Scalia's chief jurisprudential legacy--originalism in constitutional adjudication and textualism in statutory adjudication--would have staying power. For example, Prof. Eric Posner predicted that originalism would fade. Last week's Senate confirmation of Justice Gorsuch, who was happy to embrace the originalist and textualist labels, ensures that there will continue to be a market for briefs that make arguments appealing to originalist justices; this real-world relevance will in turn likely give a boost to originalist scholarship.

By originalist scholarship I do not mean historical scholarship. Just about all jurists and scholars think that the history surrounding the adoption of authoritative legal texts (be they constitutional or statutory provisions) has some substantial relevance to its proper contemporary application. What makes originalism ostensibly distinct from other views is what Prof. Larry Solum has called the "fixation thesis"--the notion that the meaning of a provision is fixed at the moment of its enactment--and the "constraint thesis"--the notion that this fixed meaning constrains constitutional practice. One can concede both points to Solum and concede further that whether judges accept these theses affects how they write opinions justifying their rulings. However, for reasons similar to those elaborated on this blog last week by Prof. Eric Segall in describing a recent article by Prof. Peter Smith, I think that whether a judge accepts Solum's theses has little immediate practical impact. Nonetheless, the stakes in the debate over originalism are not as low as one might think, as I shall explain.

As Smith and Segall and others have argued, if a judge believes that the original meaning of a constitutional term is best understood at a high level of generality, then the constraint principle does little constraining. "Equal protection" is a good example. Most of the framers and ratifiers almost certainly thought that most forms of de jure sex discrimination were consistent with equal protection of the laws, but, as nearly all contemporary originalists would say, the framers' and ratifiers' concrete intentions and expectations do not define the meaning of the term equal protection. To the extent that we care about intentions and expectations as evidence of meaning, we care about semantic intentions and expectations. If, say, as some originalists argue, the original meaning of the Fourteenth Amendment was a prohibition on state laws redolent of caste distinctions, then sex discrimination is presumptively invalid today, because we now recognize, as our nineteenth century forebears did not, that sex-based distinctions generally are caste-like distinctions.

Thus, where a "living Constitutionalist" might say that the meaning of equal protection evolved between 1868, when the Fourteenth Amendment was enacted, and 1973, when the Supreme Court decided Frontiero v. Richardson, a semantic originalist would say that the meaning of the Fourteenth Amendment was constant all along. In this example, Solum's constraint principle would constrain the rhetoric of a modern sex discrimination case, but it would not constrain the outcome. Both originalists and living constitutionalists who think that sex discrimination violates contemporary notions of equality would treat such discrimination as presumptively invalid.

That is not to say that there cannot be cases in which the choice between accepting Solum's two theses and rejecting them makes a difference. But it is to say that in the cases that are most divisive--which involve constitutional provisions that are naturally read at a high level of generality--the choice will not be decisive.

One might, therefore, wonder why anyone cares about whether semantic originalism or living constitutionalism is the better approach, or whether, as Prof. Jack Balkin has argued at length, they are really the same thing, what he calls Living Originalism in a book by that name. Put differently, what are the stakes of the debate over originalism?

To my mind, the originalism debate implicates three concerns.

1) Academic pride. Last week, Prof. Mary Bilder published an op-ed in the Boston Globe in which she explained why, in her view, originalism makes little sense. To oversimplify an argument that Bilder already had to condense to make it accessible to the general public, the framers were largely in the dark about how the government would work and thus expected future generations to work things out for themselves; originalism thus asks the impossible.

In response, Solum posed a series of questions. Even as he noted his respect for Bilder as a legal historian, he implied that she had mischaracterized contemporary originalism, because, while the indeterminacy of the framers' expectations might be a problem for proponents of original intent, it is not (in Solum's view) a problem for semantic originalism. Prof. John McGinnis posed his own objections. Disavowing an intention "to pile on," Prof. Mike Rappaport then piled on.

Bilder wrote a short reply that did not directly address Solum's (or the others') questions that was more in the nature of explaining that as a legal historian she is engaged in a different enterprise from the theorists. Meanwhile, in a post titled "Touchy Originalists," Prof. Brian Leiter characterized Solum's initial questions for Bilder as "almost comical overreactions" to an op-ed. Solum then responded to what he called Leiter's "illuminating and critical remarks."

What is going on here? It's tempting to answer with the punchline to the old joke: "Why are academic fights so heated? Because the stakes are so low." But that's not really right. The participants in this debate are personally respectful of each other for the most part. And unlike a fight over, say, who gets the faculty office closer to the coffee machine, this does not seem like a petty squabble. It matters a great deal--at least to the originalists.

But again, if, as I and others suspect, semantic originalism provides very little in the way of constraint on judges, why should the semantic originalists care? One possibility is that they disagree. They might think that Solum's two theses do a lot of work.

A second possibility (which is not mutually inconsistent with the first) is that the originalists are understandably invested in not being mischaracterized. The sort of person who becomes a scholar cares about ideas even when they have little practical significance. (I include myself in that description.) Although I am ultimately on the other side of this debate, I empathize with the semantic originalists. For years they have been responding to critiques of concrete-expectations-and-intentions originalism by developing their theory of semantic originalism. Thus I understand that they would be frustrated by seeing (what they perceive as) critiques of concrete-expectations-and-intentions originalism packaged as though they were critiques of semantic originalism.

2) Bait and switch. The fact that originalists and living constitutionalists often reach the same outcomes in concrete cases does not necessarily mean that the practical stakes are low, because even as, in academic circles concrete-expectations-and-intentions originalism has given way to semantic originalism in the last three-plus decades, in public debate originalism means concrete-expectations-and-intentions originalism. I will cheerily concede that the academics who propound semantic originalism thereby intend only to work out what they regard as the best (or what many of them think is the only legitimate) approach to constitutional interpretation and construction, without any regard for the political consequences. But even if unwittingly, in doing so the academics enable concrete-expectations-and-intentions originalism--which has a conservative, even reactionary, bias--to flourish.

I made this point at length in a 2012 essay in the Harvard Law Review, in which I reviewed Balkin's Living Originalism and Prof. David Strauss's The Living Constitution. Here is a small sample of what I wrote there:
Widespread acceptance of Balkin’s views would allow conservatives to say that even liberals now accept originalism but then turn around and define originalism narrowly. Balkin and other leading “new” originalists like Professors Randy Barnett, Lawrence Solum, and Keith Whittington make originalism respectable by answering objections leveled at “expectations-based originalism” — but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers’ and ratifiers’ expected applications in considering concrete cases.
Thus, although the scholars would never say that there can be no Fourteenth Amendment right to abortion or same-sex marriage simply in virtue of the fact that most members of the Reconstruction Congress and the general public in 1868 thought there was no such right, politicians and justices who, during their confirmation hearings talk the talk of semantic originalism, make just such academically discredited arguments in reliance on the framers' and ratifiers' concrete expectations and intentions.

The stakes are high because academic originalism--even if through no fault of academic originalists--legitimates reactionary jurisprudence.

3) Judicial Candor. Judge Posner's concurrence in last week's en banc 7th Circuit ruling in Lively v. Ivy Tech Community College illustrates a third consideration that the debate over originalism implicates: judicial candor. Judge Wood's majority opinion concludes that discrimination "because of . . . sex" as that phrase is used in Title VII encompasses discrimination on the basis of sexual orientation, notwithstanding the fact that this conclusion likely would have surprised the Congress that enacted Title VII in 1964.

Relying on Justice Scalia's opinion for a unanimous Court in Oncale v. Sundowner Offshore Services, Inc.--which found that male-on-male sexual harassment could amount to sex discrimination in violation of Title VII--Judge Wood's opinion sounds in textualism, which for present purposes we may think of as closely analogous to originalism in constitutional cases. (I recognize that the arguments for textualism and originalism differ somewhat. E.g., Prof. John Manning has argued that textualism can be best justified as a nondelegation doctrine, which is an argument within constitutional law, not an argument about how the Constitution should be interpreted and construed, in the way that arguments for originalism are. This difference is not relevant to the point I am making here.)

Although Judge Posner concurs in Judge Wood's opinion in Lively, he writes separately "to explore an alternative approach that may be more straightforward." He suggests that it would be simpler and more honest simply to say that the meaning of discrimination on the basis of sex changed between 1964 and 2017, chiefly through changed social values. He argues that when courts reach results that would have startled the lawmakers whose enactments they construe, the courts may be legitimately "giving a fresh meaning to" the relevant legal provision.

Because Judge Posner reaches the same result as Judge Wood (and, as noted above, even concurs in her opinion), his concurrence might be thought to illustrate how low the stakes are in the debate between semantic originalism (or textualism) and living constitutionalism (or dynamic statutory interpretation). But I think that would be a mistaken inference.

The practical stakes here are high. The closest any senator came to laying a glove on then-Judge Gorsuch during his confirmation hearing was when Senator Franken questioned him about the "frozen trucker" case. A view that openly admits that judges have considerable discretion to reach a sensible result even when, at first glance, the language of a statute (or constitutional provision) cuts against that result, gives judges less room to say "the law made me do it" and thus to evade responsibility for their rulings.

For at least the last two decades, Judge Posner's chief academic objective has been to promote legal realism as against legal formalism (as I explored here and as is further evident in Prof. Segall's description of his remarks at a recent conference). Originalism and textualism are brands of formalism, even when used flexibly to produce results that are indistinguishable from living constitutionalism and dynamic statutory interpretation. Judge Posner's noble goal of demystifying the law (which was always a main aim of legal realism) seeks to dislodge formalism and thus to undercut the latter's reactionary tendencies. Those are some pretty high stakes.

----
Postscript: Prof. Solum has posted a thoughtful response to the foregoing with a couple of points that warrant a brief reply.

1) Prof. Solum notes that I use the term "semantic originalism" (which I borrowed from an earlier paper of his but which also captures a position the late Ronald Dworkin espoused) synonymously with "original public meaning originalism" but that the latter may be broader insofar as "semantics alone" do not necessarily determine the communicative content of a constitutional provision. I'm happy to regard that as a friendly amendment. Readers should feel free to substitute "original public meaning originalism" for "semantic originalism" in the foregoing.

2) Prof. Solum cites another post of his to explain why, in his view, originalism does not have a levels-of-generality problem. To be clear, my post above notes that Segall and Smith argue that originalism has a levels-of-generality problem but I don't endorse that view. I say only that if an originalist judge concludes that the best (original) reading of a constitutional provision--equal protection, say, or freedom of speech--is at a high level of generality, then original meaning does not do much constraining. In Solum's terms, then, the original meaning would be "underdeterminate." That underdeterminacy is what allows (although the post of Solum's just linked says does not require) orginalism to end up looking like living constitutionalism.

18 comments:

Joe said...

"demystifying the law"

One thing that bothered various people about Judge (sic) Gorsuch's testimony was his b.s. about how he was a special snowflake that just used "the law" unlike politicians and other slightly distasteful sorts. He also (as he noted repeatedly) wasn't affected by what he had for breakfast. Originalism too often furthers that b.s. quality.

Originalism like all myths have various purposes, including to provide a sense of legitimacy, the alternative allegedly "anything goes." It really is an imperfect, human judging, not what amounts to a sort of role playing game where the imperfections of historical analysis is on play much of the time. Pride does play a part: the sanctimonious flavor of some of the accounts here are akin to those patronizing gun rights analysts. (Or, to be fair, some of their opponents).

And, the approach where a justice is not really a "judge" doesn't work for me either, as I noted when Prof. Segall argued for that approach in the past. Anyway, these questions also pop up in religious disputes & I see a lot of overlap:

https://cruxnow.com/vatican/2017/04/10/jesuit-chief-rejects-charges-heresy-views-gospels/

Shag from Brookline said...

That the stakes were high was demonstrated during the Gorsuch nomination process by what seemed a concerted effort by Randy Barnett, Larry Solum at his Legal Theory Blog and the various strains of originalists at the Originalism Blog. There seemed to be a piling on at all levels of originalism, not just the New Originalism of Barnett and Solum. Over the years I had thought of Solum as apolitical. But over the past year or so at his Legal Theory Blog, Solum has editorialized to a great extent with critical comments on those challenging originalism that he seems to be leaning in a political vein. Note Solum's efforts over the past several weeks with lengthy posts outlining his views on originalism. Yes, the stakes were high - and remain high - as the late faint-hearted Justice Scalia's originalism has been replaced with, presumably, the full-hearted originalism of now Justice Gorsuch, with the Court back featuring two originalists. In my mind, Barnett has ever been political with his originalism, as reflected on his VC post following Mike's April Fools' post that referenced a fictional Randy.

Regarding Mike's reference to Solum's "fixation thesis" and "constraint thesis" there is serious issue as to the applications of these theses under the New Originalism's interpretation/construction approach when the Constitution is not clear on an issue for which the construction aspect governs.

Maybe it's time to unite with a "Non-Originalism Blog."

Joe said...

Maybe it's time to unite with a "Non-Originalism Blog."

ACS Blog has some value in that direction.

See also: https://www.acslaw.org/pdf/ACS_KeepFaith_FNL.pdf

(Goodwin Liu is now a state judge in California)

Patrick S. O'Donnell said...

Re: “academic originalism—even if through no fault of academic originalists—legitimates reactionary jurisprudence”

This reminds me of the analogous manner in which “the end justifies the means” doctrine in political philosophy or theory is taken by some to mean an end can justify _any_ means to it. And the former maxim, while not intended to be read in an unconditional or unqualified sense, is sometimes translated as such by ruthless political leaders or military strategists (cf. the Assad regime). So, as one of my teachers long ago wrote, “It is no doubt possible to justify tyrannicide without going so far as to say that a worthy end legitimizes any and every means.” Or, to put it a bit more grandly but perhaps by way of enhancing the analogy: “The important point, however, is not the precise standpoints of Bentham, Machiavelli, or Kautilya [or Solum and the ‘new’ Originalists], but the dangerous uses to which their doctrines could be put [by ‘judges, elected officials, and the public’], hence we find sufficient warrant to charge more than a few (so-called) Benthamites, Machiavellians, and followers of Kautilya with “ruthlessness” [or charge ostensible Originalists with ... ].

Shag from Brookline said...

A fairly recent direction of originalism is to utilize linguists to "recover" the original meaning of the Constitution at various points in time in the adoption of the Constitution and Amendments such that with the push of a few keys on such a computer program the definitive original meaning can be ascertained. Just who comprise this group of originalism linguists? I recall the brief of linguists in Heller on the 2nd A that seemed to be ignored by Justice Scalia in his opinion. Might the expression "garbage in, garbage out" apply to such a computer program? Why the need for so many constitutional scholars? Are linguists political?

John Barron said...

Challenge to non-originalists:

The ultimate question is whether courts are to apply the Constitution the Framers bequeathed to us—or the SCOTUStitution which, as Judge Posner notes, “bears very little resemblance to the text of the Constitution in 1789, 1791, and 1868.”[1] As Chief Justice Roberts avers, “under the Constitution, judges have power to say what the law is, not what it should be.”[2] Under the SCOTUStitution, judges rendered the 7Am[3] and Good Behaviour Clause[4] inert, rewrote the 11Am[5], and eviscerated essential protections against abuse of power by officials.[6]

Which do you choose, and why?
_______________

1 Josh Blackman, Judge Posner on Judging, Birthright Citizenship, and Precedent, Nov. 6, 2015 (author’s transcript of Posner speech).
2 Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Roberts, C.J., dissenting) (slip op., at 2).
3 The signal feature of the jury trial in 1791 was that the jury—not judges!—had lawful authority to "determine the law as well as the fact in controversy." Georgia v. Brailsford , 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.)
4 Smith v. Krieger, 643 F.Supp.2d 1274 (D.Colo. Aug. 3, 2009), aff’d, No. 09-1503 (10th Cir. Jul. 27, 2010) (unpublished), cert den. (2011).
5 See John Paul Stevens, “Two Questions About Justice,” 2003 Ill. L. Rev. 821.
6 “At the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law.” Antonin Scalia, Historical Anomalies in Administrative Law, Y.B. Supreme Court Hist. Soc’y. 103, 104 (1985) (emphasis in original). Take away all legal remedies for a wrongful invasion of a right, and you take away the right.

Shag from Brookline said...

Regarding this from Mike's Postcript , paragraph 2):

***:

In Solum's terms, then, the original meaning would be "underdeterminate." That underdeterminacy is what allows (although the post of Solum's just linked says does not require) orginalism to end up looking like living constitutionalism.

***

Solum elsewhere has taken the position that most of the original public meaning of the Constitutionis quite clear. The New Originalism seems to call for "construction" when the original public meaning is not clear. Perhaps Solum's New Originalism chooses not to apply "construction" to what he claims is "underdeterminate." I sense there may be disagreement among New Originalism advocates on this.

Shag from Brookline said...

John Bannon's question calls for a Mary Sarah Bilder type response.

John Ashman said...

Bilder is a typical idiot librul that simply makes things up and then can't answer legitimate, easy questions and instead, show boats her limited knowledge with a few quotes to provide cover. Historians, when confronted with "okay, we might not be smart enough to understand the Power to Tax Clause, so why don't YOU define it for us" suddenly pull up the drawbridge and run for their master's chambers.

"A second possibility (which is not mutually inconsistent with the first) is that the originalists are understandably invested in not being mischaracterized. " YA THNK?

You can't have an intellectually honest conversation with someone who purposefully or ignorantly mischaracterizes everything you believe, think or say.

You guys conveniently avoid the three biggest areas of disagreement between LivCons and Contemporary (originalist) Constitutionalists - the Power to Tax Clause, Necessary and Proper Clause, and Commerce Clause. And you avoid it because any independent thinking person hearing both arguments would instantly know that we are right and you are purposefully wrong. Not the least of which, is that we can quote the Founders ridiculing some of your "interpretations" you've brought forth.

The Founders were very clever about language and used it in interesting ways in the Constitution to convey rationales, hide deep evils about slavery, plant "easter eggs" to allow for a much more inclusive, egalitarian society. Unlike many people falsely state, the Constitution did NOT make slavery legal, did NOT prevent blacks or women from voting or participating. Instead, it took a necessarily cagey and neutral POV towards these things and let it for us to figure out. They purposefully jumped between levels of generality in order to restrict somethings completely while allow for future interpretations in others. They also ridiculed several standard librul misinterpretations in use today. They were shocked by the idea that someone would misuse the Power to Tax Clause and Necessary/Proper Clause as we do, and certainly would have locked down the Commerce Clause if they'd thought future generations so idiotic as to not be able to understand it. So, while they gave us some flexibility, they did not offer the kind that the left uses to rape the Constitution and do whatever it wishes. And that is the part that you wish to avoid discussing.

Joe said...

Prof. Solum picks from the many shades to show how his approach works. It's how you count the angels.

The "Constitution the Framers bequeathed to us" involves text and concepts developed from it (such as the contours of federalism, separation of powers etc.) "intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs" (John Marshall, ratifier, McCulloch v. Maryland) as the facts and understandings of history develop. To continue: " It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur."

The Constitution "bequeath to us" includes various provisions (others, quite a lot really, such as number of senators etc. have less open meanings) that would be understood differently in 1787 than 2017. It was specifically written this way, if you examine the rules used by the Committee of Detail.

This is not a matter of "what should be," but how law "is." There are great differences of understanding here, including analyzing original understanding. See, e.g., the various opinions in D.C. v. Heller or Brennan v. Scalia looking at the history of the Establishment Clause. This will ultimately be a matter of judgment, though often the judges will agree. Various things such as doctrine, disputed textual analysis rules and so forth factor in here.

Joe said...

ETA: I should add that part of what the law "is" involves some judgment calls. There is some 'shoulds' involved there and there always was when applying the law. But, since this is a feature not a bug, I basically take it what the law 'is.'

I would choose this approach given it seems to me as the most reasonable and workable way human judges operate and have operated over time. And, the Constitution does not appear to me to block it.

Shag from Brookline said...

The role of history in the interpretation/construction of the Constitution is not uniform within the various versions of originalism as well as within New Originalism. A recent article by a historian raised questions as to how historians might better approach originalism. Randy Barnett jumped on this article to repeat his criticism of historians who have criticized originalism, joined by Larry Solum fairly promptly. But the author of the article responded strongly to Barnett's response. Recall the historians' brief in Heller that Justice Scalia seemed to ignore in his opinion. The Constitution has been amended over the years to become more democratic. History helps us to understand this. Barnett, a libertarian, stakes out the 1787 Constitution as libertarian. But was libertarianism in 1787 the same as it is today? Or has libertarianism evolved over 200+ years?

JC said...

While the post focuses extensively on sex-discrimination under Equal Protection, it seems to me that semantic originalism would lead to a different result in the context of the Due Process Clause. As Scalia was fond of saying, substantive due process is a contradiction in terms. Semantic originalists could rightly reject substantive due process rights, while "living" constitutionalists may not.

Shag from Brookline said...

The stakes are so high that Randy Barnett over at VC responds to Mike's post, seemingly in concert with Larry Solum? Will the Originalism Blog also jump in?

Laura Kalman has an interesting post at Balkinization's symposium on Michael Klarman's "The Framers' Coup:" that closes with an interesting Jefferson quote used to challenge originalism. There are also interesting symposium posts by Jack Balkin and James Fox, with the latter extensively discussing originalism.

The stakes are so high that Mary Sarah Bilder is criticised by Mike (I'm not Ramsey) Rappaport at the Originalism Blog.

John Ashman said...

It's kind of interesting to me that "historians" always seem to be nationalist, if not overtly leftist, and always seem to be able to find history that backs them up, while totally avoiding history that does not.

"
Laura Kalman has an interesting post at Balkinization's symposium on Michael Klarman's "The Framers' Coup:" that closes with an interesting Jefferson quote used to challenge originalism."

I assume this is the totally out of context one that believes that a strictly read Constitution is going to need to be updated frequently, if not replaced every now and again.

Shag from Brookline said...

Larry Solum posts on Randy Barnett's post at VC responding to Mike's post and Solum follows with extensive commentary in the reading Mike's mind/meaning on various terms, comments in Mike's post. This seems to be all out academic warfare between academic originalists and non-originalists. The stakes are so great that Solum is engaged full time it seems. It may take a theory to beat a theory especially as there are so many theories/versions of originalism. Solum hedges that his is a work in progress. I think more than a tad of ideology is revealed by Solum with his lengthy mind reading - like reading the minds of the Framers.

Joe said...

Solum is also on Twitter. He isn't more convincing to me there but nice hat.

Shag from Brookline said...

I assume it's a tri-corne.