Friday, March 16, 2018

How Scalia Saved Originalism By Destroying It

by Michael Dorf

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

Exhibit A for Greenhouse's claim about statutory interpretation is the recent decision in Digital Reality Trust, Inc. v. Somers, in which: Justice Ginsburg unapologetically relied extensively on a Senate Report; Justice Thomas, joined by Justices Alito and Gorsuch, concurred in the opinion only insofar as it did not rely on the Senate Report and disavowed the authority of that Report; and Justice Sotomayor, joined by Justice Breyer, responded to Justice Thomas with a defense of the utility of the Senate Report as an aide to discerning the statute's meaning.

Digital Reality Trust was 6-3 on the legislative history front. That suggests that, even if Justice Scalia were still serving on the Court, it also would have been 6-3 in that regard, as Justice Gorsuch seems to be no less committed to disavowing legislative history than Scalia was. Thus, it is not at all clear that the net lineup would have looked any different before Justice Scalia's death. If the temptation of a unanimous opinion rather than an opinion joined in full by only six justices was not enough to induce Justice Ginsburg to place her discussion of the Senate Report in a standalone section at the end of her opinion now, why would it have been a sufficient temptation three years ago?

Accordingly, count me as provisionally unpersuaded that much has changed on the Supreme Court with regard to legislative history. Let's turn now to constitutional interpretation.

Greenhouse attributes to Scalia the "view that the only legitimate basis for interpreting the Constitution is the original intent of its framers." That's inaccurate. Scalia successfully championed original meaning as against original intent.

In a well-publicized 1985 speech to the American Bar Association, President Reagan's Attorney General Edwin Meese argued for construing the Constitution to reflect the "original intention of those who framed" it.  That same year, in a speech at San Diego Law School, Judge Robert Bork argued that judicial review is only legitimate if "judges interpret the [Constitution] according to the intentions of those who drafted, proposed, and ratified its provisions and its various amendments." After the Senate failed to confirm Bork to the Supreme Court, he wrote a book, The Tempting of America, in which he referred to the "original understanding" of the Constitution, but he used that term more or less interchangeably with original intent.

Scalia was different. At a time when most originalists were still promoting original intent, Scalia was talking about original meaning, sometimes described as original public meaning. Scalia rejected legislative history in statutory interpretation because he thought the goal of statutory interpretation was not to uncover the intentions of the legislature but to discern the meaning of the words it enacted.  As he wrote for the Court in a 1998 case, "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

Scalia's views about constitutional interpretation were cut from the same cloth. In 1997 he expressed a point he had been developing for more than a decade: that both statutory interpretation and constitutional interpretation should aim at the original public meaning of the words adopted rather than the subjective intentions and expectations of the law writers. Here is a notable passage from Scalia in the 1997 book A Matter of Interpretation:
It is curious that most of those who insist that the drafter's intent gives meaning to a statute reject the drafter's intent as the criterion for interpretation of the Constitution. I reject it for both. I will consult the writings of some men who happened to be delegates to the Constitutional Convention--Hamilton's and Madison's writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.
Greenhouse is right that debates about constitutional interpretation pre-dated and now post-date Scalia. But she is wrong about his position in that debate and thus fails to appreciate his profound impact on it. Although Scalia was not the only self-styled originalist to shift from original intent to original public meaning, he was one of the first and certainly the most prominent. And as a consequence of his influence, the vast majority of self-styled originalists now favor original public meaning. That is a major and lasting legacy.

By reorienting originalism in constitutional interpretation, Scalia thus saved originalism from the very sorts of critiques that he himself had leveled against intentionalism in statutory interpretation. But in saving originalism he also destroyed it, because once originalism was loosed from 18th century attitudes (or 19th century ones in the case of provisions like the 14th Amendment), judges and scholars could plausibly claim fidelity to original meaning while voting for outcomes that were inconsistent with the specific intentions and expectations of earlier generations. Once the likes of Ronald Dworkin and Jack Balkin were able to embrace originalism (as Dworkin did as early as 1996 in his book Freedom's Law and as Balkin did more recently), originalism ceased to be a distinctive position in debates over constitutional interpretation.

To be sure, Scalia's actual votes in constitutional cases do not appear to have been driven chiefly by his devotion to original public meaning. But neither were they driven by a devotion to original intent. Like just about all justices, Scalia's votes were best explained in nakedly ideological terms. He typically voted for conservative outcomes and then (sometimes) offered originalist rhetoric to rationalize those results.

That said, Greenhouse assumes (and I agree) that jurisprudential philosophy--whether in statutory or constitutional cases--can make some difference sometimes. And if any judge or justice would have a lasting influence due to his or her jurisprudential philosophy, it would be someone like Scalia, who regarded judicial philosophy as important.

When it comes to the particulars, though, Greenhouse is wrong. Scalia's legacy in constitutional interpretation is substantial. More than anyone, we have Scalia to thank for killing originalism.


Shag from Brookline said...

Somewhat of a contrast to Greenhouse's column is:

"Antonin Scalia’s disruption of the Supreme Court’s ways is here to stay" By Richard L. Hasen at:

I anxiously await the reaction at the Originalism Blog to Mike's closing sentence.

Joe said...

How does "original public meaning" -- how it was "originally understood" -- "loosed from 18th century attitudes"? Using Scalia's conceit at least, the idea is the original meaning. This would entail the original attitudes, right? What people at the time thought something meant reflects their attitudes.

Anyway, I find the whole thing confused and along with Scalia's boorish way of expressing it, the whole thing is depressing. Congrats on Richard Hasen's new book, but to the degree he still matters, much of it is not positive. I respect that Scalia did engage with his critics, but repeatedly he did not seem to truly understand what they were saying, lashing out with invective and scorn. This often is a reflection of ignorance. He did make RBG laugh though.

Joe said...

Also, Scalia is known for his textual analysis, but critics had a field day showing how the alleged "limit" here in practice amounted to him selectively making decisions, providing much room for judicial flexibility. Plus, even using his own alleged rules (see also, originalism), different results repeatedly was possible.

The whole no legislative history thing was taken to exaggerated lengths too, it a perfectly fine tool among many to fill in the gaps. A long used tool that suggests that we should assume that legislators legislate with the idea that it will be used by judges. Anyway, the recent competing concurrences cited by Greenhouse does suggest a few justices still are somewhat loyal to Scalia, at the very least Judge "got to look at the text" Gorsuch.

If such a thing is possible, I'm sure Scalia is looking down at Gorsuch on the Court and smiling, telling everyone to "get over" the problems of the election.

Michael C. Dorf said...

W/r/t Joe's question, attitudes would only count to the extent that they reflected the semantic content of the Constitution's words, as opposed to other views.

I would add that there are some people who push back against the strongest efforts to distinguish meaning from other intentions and expectations, citing the Wittgensteinian idea that meaning is use and noting that use will reflect attitudes.

Joe said...

Thanks. smh

Shag from Brookline said...

It has been said that it takes a legal theory to beat a legal theory. Is there one specific legal theory of (all versions of) originalism or are there separate legal theories for various versions of originalism? If the latter, then which of such theory/theories are beating or being beaten? The originalism movement seems to be seeking as much objectivity as possible. There is in development in originalism corpus lingus projects that just might inform more objectively original public meaning originalism of the Constitution as amended, via software analyses of original public meanings at the various applicable points in time. Of course, as with all software, garbage in, garbage out considerations may come into play.

I wonder if there is a constitutional scholar with expertise in science's concept of its theories and how they are tested to compare with how legal theories are tested. If so, I'd like to hear from him/her/them.

Over at Balkanization in recent days there have been some competing posts on legal theories and cycles thereof, including "impure" legal theories. Originalism is referenced therein as a legal theory. Some of the focus of the exchanges includes addressing the motivational pursuit by legal scholars of "impure" legal theories, including of originalism. I don't know if corpus lingus in originalism is considered a legal theory at this time, but if successful, might the corpus lingus originalism computer program eliminate or minimize the need for constitutional scholars?

John Barron said...

The Framers were the original originalists, harboring a consensus that there is one and only one correct way to interpret the Constitution. The most effective summation of this notion comes, as it always seems to, from the pen of Thomas Jefferson:

Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction. If [public officials’ powers are boundless] then we have no constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.

Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

James Madison adds,

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910).

The Framers didn’t have any more faith in their judiciary than we should have in ours, which is why they wrote a Constitution ensuring that judges had as little discretion as humanly possible. As Hamilton wrote, to "avoid an arbitrary discretion in the courts, it is indispensable that [our judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them." Federalist 78.

When one speaks of modern originalism, one must naturally begin with Raoul Berger and Robert Bork. Bork's Neutral Principles and Berger's Paul Brest's Brief for an Imperial Judiciary stuck the fatal blow to the Living Constitution, effectively asking why the Framers--or, any sane man--would risk life and limb to replace the rule of King George with that of King Judge. The Framers' writings were pellucid on this point: they would accept no king but the law.

The problem was that the New Originalists' original solution was risible: to get inside the drafters' heads essentially required a seance. Scalia's most important contribution was in recognizing that that was totally nuts.

Did Scalia kill originalism? Of course not! He mangled it beyond recognition on the bench. As he openly confessed, his Court was often tempted “toward[] systematically eliminating checks upon its own power; and it succumbs.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting). He loved ruling us so much that he was willing to do it for free, but when he didn't get his way, he cooked up an inedible word salad featuring jiggery-pokery and applesauce.

What we have now is easily defensible. The concept of the social contract can be traced to Hobbes, Locke, and Daniel DeFoe. COTUS is a treaty between 13 co-sovereigns; contract law and pacta sunt servanda govern. We are 3rd-party beneficiaries, who may enforce the guarantees as written. And as is the case in all contracts, the meaning of the words are fixed as of the date they were written.

Shag from Brookline said...

Query: Were the "framers" of the Articles of Confederation the original originalists? The Framers of the 1787 Constitution had assembled in the Constitutional Convention to address and perhaps correct the Articles by amendment because because the Articles weren't working well after several years of operation. The Framers of the 1787 Constitution were presumably aware of the provisions of the entirety of the Articles, including the provision in the Articles requiring unanimous consent to amend the Articles. Yet over the course of the Convention, the Framers of the 1787 Constitution shifted gears on the Convention's role and ignored the clear unanimous consent provisions of the Articles. Perhaps the Framers of the 1787 Constitution were originals in evading a clear provision of the Articles.

By the Bybee [expletives deleted], Thomas Jefferson was not one of the Framers of the 1787 Constitution. And I wonder how many originalists today abide by Jefferson's "separation of church and state" relative to Jefferson's position during his presidency on portions of the 1st A.

Joe said...

The Articles of Confederation to me warrants more attention -- it is like the Third Amendment of constitutional law or something. I tried to find a good book that discussed its formation and how it worked in practice & simply couldn't find one that comprehensively dealt with it. Found one book from some time back that dealt with part of its creation. It is usually dealt with in summary fashion in the midst of other things. A recent book with "Articles of Confederation" in the title in some fashion was really just a book on the Constitution, talking about the failed state of affairs of the last few years of life under the Articles.

Poor John Dickinson, who might be called the "Father of the Articles Confederation," and is instead mostly recalled as the asshole in "1776."

John Barron said...

If you understood int'l law, Shag, it wouldn't be an impenetrable mystery. When two (or more) Contracting States enter into a new treaty, the old one is superseded.

And no, Jefferson did not participate in the Philadelphia Convention--of course not. But he was the most articulate man of his age, and he summarized the concept with is usual aplomb.

Asher Steinberg said...

First, possibly tacky ad hominem comment, but if you're as confused about really basic matters of interpretive methodology as Greenhouse is, you shouldn't be writing about it, or the Times shouldn't let you write about it. Liptak's always been much more sophisticated about these things, and really about virtually any fine legal point.

Second, not only wasn't it unusual in Scalia's time on the Court for everyone but him and Thomas to rely on legislative history, such that it's a ludicrous canard to say that Digital Realty (which was 6-3 on this point) represents some sort of erosion of Scalia's preferred methodology's success, Digital Realty is a huge win for textualism. In Digital Realty, the SEC, supported by the Solicitor General, and a majority of circuits (the latter relying on cases like Bond and Burwell) had read a statutory definition out of a part of a statute because it made very little sense there. The Court basically holds that you need radical absurdity to perform that kind of maneuver. I don't believe that Digital Realty would have come out the same way in 1985 or even 1990; I think the Court would have agreed with the very smart circuit judges below, like Jon Newman, who saw their way to correcting Congress's seeming error.

Third, I can't agree that original-public-meaning originalism isn't a distinctive position on constitutional interpretation; I do think that original public meaning has some constraining content that radically diverges from where other methodologies lead you in many instances. I'm very skeptical that any of our First Amendment doctrine can be squared with the First Amendment's original meaning, that any of our Establishment Clause doctrine can be squared with original meaning, that our Privileges and Immunities Clause doctrine can, that our Equal Protection doctrine can, that our interstate commerce doctrine can, that Roe, Griswold, or Obergefell can, or that either the majority opinion or dissent in Heller can (i.e., I'm inclined to suspect that the original meaning of the Second Amendment is more radical than the Heller majority allowed). Some of our doctrine is defensible as an originalist matter, but just because there are non-frivolous (albeit obviously motivated) originalist arguments out there claiming that this or that can be squared with originalism doesn't make it so, or mean that a Supreme Court that adopted originalism would generally decide cases as Dworkin or Balkin would. I think that most people would concede that it's a lot more likely that the Court will decide cases as Dworkin or Balkin would if it's interpreting the Constitution in a non-originalist way. None of this is a defense of originalism's correctness, as I'm not an originalist precisely on account of many of the discrepancies between doctrine and originalism that I assert exist above, but it is a defense of originalism's non-triviality.

Shag from Brookline said...

John, like Steve Bannon, has now gone full international on us. But words have meaning - and had meaning back in the subject timeframe - such as the unanimous consent required by the Articles of Confederation for its amendment, the original task of the Convention. Shall we go through a history of all the steps between the Articles and the 1787 Constitution, including poor little Rhode Island?

Yes, Jefferson had, inter alia, a lot of aplomb. But as I noted earlier, "And I wonder how many originalists today abide by Jefferson's 'separation of church and state' relative to Jefferson's position during his presidency on portions of the 1st A." Did Jefferson's position comport with the original public meaning regarding certain portions of the 1st A when it was ratified in 1791? Perhaps you have a St. Augustine cite, or a cite from your mysterious "Austrnians."

Joe said...

As to the 1A, maybe another person to cite is James Madison & the three of his seven vetoes that appear to be based on his interpretation of the Establishment Clause.

Jefferson's "separation of church and state" letter gets a lot of attention, but not only is James Madison also an early strong believer, it reflects a strain of thought that arose long before the letter itself. Many Baptists specifically supported it. As did Roger Williams in the 17th Century. One controversy where it arose in the early 19th Century was over the debate regarding Sunday mail delivery.


"I think that most people would concede that it's a lot more likely that the Court will decide cases as Dworkin or Balkin would if it's interpreting the Constitution in a non-originalist way."

This is surely the case if "originalist" means "what conservatives like." On some issues, at least going by result, surely. On various subjects, it is about as likely or more likely the other way that 'originalism' will get you the position they prefer. Eric Segall is on the phone to help you out. On others, it depends on the breed of originalism.

It was noted in the comment that some issues would not go the originalist's way as compared to actual doctrine, but not sure if you go issue by issue that "a lot more likely" would be true. Then again, again depends what "originalism" means. When it works out that liberals benefit too much, apparently you might be doing it wrong.

Shag from Brookline said...

I understand that Jefferson served as a mentor to Madison, including when Madison was a delegate to the Constitutional Convention and that they were in correspondence quite frequently when Jefferson was "inter alia" in France. And Madison's views during the Convention and the first Congress may have modified somewhat over the years since as noted by Mary Sarah Bilder's "Madison’s Hand: Revising the Constitutional Convention."

Those originalists who disagree with Jefferson's "separation of church and state" seem to confirm that originalism is faith-based.

John Barron said...

Bilder's work is hardly dispositive, Shag. She is entitled to her opinion, but no one is bound by it.

As for the Philadelphia Convention, it was expressly authorized by Congress under the A/C. Don't see the problem.