Dicta and the Original Meaning of Article III

by Michael C. Dorf

A recent order in a pending Sixth Circuit case asks the parties for supplemental briefing on the original meaning of the cases or controversies language in Article III and its relevance to the distinction between holding and dicta. The order is especially notable because it directs the attorneys to explain how the Corpus of Founding Era American English bears on the question. To my mind, the order raises numerous issues. Here, I'll address the following:

1) How useful is the corpus for discerning original meaning as a general matter?

2) Even assuming the answer to question 1) is "at least somewhat," should lawyers who haven't chosen to cite it be directed by courts to do so?

3) Even assuming the answer to question 2) is "yes, at least sometimes," is this such an occasion?

4) Does the original meaning of Article III determine the line between holding and dicta, even on originalist premises?

5) How should one translate that original meaning, given substantial changes in how federal courts function since the Founding?

The underlying litigation involves a habeas petition by a federal prisoner who argues that his sentence was improperly enhanced under the Armed Career Criminal Act. The case is procedurally complex, and accordingly I won't attempt to summarize all aspects of it. For present purposes it suffices to observe that this case arises out of prisoner Wright's second federal habeas petition. He first filed under one statutory provision, lost, and then filed under another. The federal district judge ruled against Wright on the ground that he had failed to satisfy the criteria set forth in a Sixth Circuit case--Hill v. Masters--governing when a second such petition can succeed after the first one fails.

The government argued in response that the district court correctly rejected Wright's petition under the Hill precedent, but that, in any event, Hill states a too-generous rule for federal habeas petitioners like Wright. According to the government, Hill contradicts earlier Sixth Circuit precedents and is therefore not controlling. One of those earlier precedents is U.S. v. Peterman. The Hill court had distinguished the seemingly contrary position of the Peterman opinion as mere dicta.

The Sixth Circuit directed the parties to address whether Hill contradicted Peterman and other prior Circuit precedents. The parties did so, but the court apparently was not satisfied with the filings, because it then sought supplemental briefing. That brings us to the recent order. Here is the order in the form of a letter to counsel from the clerk of court:

Now let's turn to answering the questions I raised above.

1) The corpus is a searchable database of nearly 120,000 Founding-Era and English documents. It is in principle useful for determining the original public meaning of various words found in the Constitution. Scholars take a variety of views of its utility. For a generally supportive view, I recommend the various scholarship and blog posts of attorney/scholar Stephen Mouritsen. Among other points he makes is that a corpus provides a better picture of the public meaning of a word or phrase than does a dictionary. Insofar as originalists have heretofore relied extensively on dictionaries, the move to a corpus is a step in the right direction. To similar effect is an excellent article by Neal Goldfarb.

Not everyone is persuaded. A recent paper by Kevin Tobia uses contemporary examples, M-Turk experiments, and empirical analysis to show that in many settings, a corpus fails to capture the ways in which non-elites use language and thus the way it would be commonly understood. Tobia finds that both dictionaries and corpora have relatively high error rates and, in addition, frequently disagree with one another. Tobia does not deny that there can be a relatively determinate public meaning of some term at some particular time, but he offers reasons to doubt that a corpus is a very reliable means of recovering it.

Notwithstanding Tobia's good points, I tend to think that a corpus can be at least somewhat useful. Indeed, for an article I wrote in 2000, I more or less used one. As I noted in footnote 111 of that article, I searched in a database of Founding-era documents housed at the Library of Congress for the term "bear arms." I concluded that nearly all usages of the term were in a military context. A recent article by linguist Dennis Baron finds the same result using two more recently available corpora.

2) Baron offers his research as a rejoinder to Justice Scalia's opinion in DC v. Heller. It's pretty clear that for an originalist-minded Court, the sort of work that Baron did (and that I did almost two decades before him) is relevant when answering an important constitutional question of more or less first impression--which is how the Court treated the Second Amendment issue in Heller. Even non-originalists like me think original meaning is relevant to contemporary meaning, so material that improves our ability to accurately discern original meaning is helpful to just about everyone interested in such cases. True, we should be mindful of the substantial possibility of being misled by a corpus, as Tobia's article underscores. But that is probably best seen as a reason to proceed carefully when using a corpus, not a reason never to use one.

3) Note, however, that the Sixth Circuit has now twice directed the parties to address issues they did not on their own choose to address at length. And this is not for the purpose of making nationwide law in the course of exercising control over a discretionary docket, as in the Supreme Court, but simply for purposes of deciding an appeal.

Note also that the question on which the Sixth Circuit has sought supplemental briefing is a tangent to a tangent to a tangent. The underlying substantive issue is whether Wright's sentence was improperly enhanced. The Sixth Circuit has not sought supplemental briefing on that issue. The procedural issue is whether Wright satisfies the test for bringing a second habeas petition. The Sixth Circuit has not sought supplemental briefing on that issue either. Instead, it has sought supplemental briefing on how the original meaning of Article III bears on the distinction between holding and dicta, with the aim of discerning whether an earlier Sixth Circuit opinion correctly distinguished language in a still-earlier Sixth Circuit opinion as dicta.

When working as a lawyer, I have sometimes been asked by a court to provide supplemental briefing on some issue. On each such occasion, I have been grateful, because it gave me an opportunity to address issues that one or more judges clearly thought important. Perhaps that is what is happening here. Perhaps at least one of the judges on the Wright panel has concluded that the result in the case turns on the original meaning of Article III. If not, however, the supplemental briefing order seems like an extravagant indulgence that will chew up many hours of lawyers' time that could be spent on matters more directly relevant to contested questions.

4) Early in my career I wrote a paper titled Dicta and Article III. Given the very long line of cases articulating the distinction between holding and dicta, I did not regard the constitutional question of how Article III bears on the line between holding and dicta as remotely an open one. Accordingly, I did not spend much time researching whether the original meaning of "cases" and "controversies" bears on that question. My conclusion based on a consideration of other factors was that "sensitivity to the concerns underlying Article III ought to rule out extremely broad and extremely narrow conceptions of precedent."

Will a more focused and corpus-assisted inquiry yield a more determinate result? It's conceivable, but  I do not envy the lawyers subject to the order in Wright. The idea that Article III limits the ability of federal courts to issue advisory opinions goes back to the founding, but notably, the most important founding-era example -- a 1793 letter from the Justices to President George Washington -- refers to general structural principles rather than to the "case" or "controversy" language of Article III. Meanwhile, the distinction between holding and dicta was known at the founding, but I would be extremely surprised if anything could be found tying the ordinary use of the terms case and controversy to any particular line drawn between dicta and holding.

5) Finally, even assuming that there is substantial evidence that the original meaning of Article III speaks to the line between holding and dicta, one would need to translate that original meaning from a very different context. Two facts stand out.

a)  Suppose that, using our understanding of the original meaning of Article III as informed by the corpus, we could definitively identify some proposition as the holding of a case. It doesn't necessarily follow that this holding must have any particular precedential value. After all, holdings of federal district courts have no weight as binding precedent. True, federal appeals court panel opinions generally bind future panels of the same circuit unless and until overruled by the circuit sitting en ban or by the Supreme Court (or by some other change in the law, such as a statute or constitutional amendment). But the precedential weight of appeals court opinions does not appear to be a matter of constitutional law, because federal appeals courts only exist due to decisions of Congress. Under the so-called Madisonian compromise, Congress was not obligated to create any lower federal courts. That fact, in turn, casts additional doubt on the likelihood that the Constitution speaks to the contemporary implications of the question the Sixth Circuit has posed.

b) Prior to Chief Justice John Marshall's leadership, US courts followed the English custom of seriatim opinions. A majority of the judges or justices would agree on a bottom line, but each would write separately to explain his reasons; there was no "Opinion of the Court." So suppose that somehow the corpus shows that the original public meaning of "cases" and "controversies" entailed a narrow conception of holding -- just the facts plus outcome, without any of the reasoning contained in an opinion. Even so, that could just be an artifact of an expectation -- but not a constitutional requirement -- that courts would issue seriatim opinions in which there was no rationale on which all the participating judges or justices agreed. One would then have to ask how to translate the original public meaning into a regime in which opinions of the court are the norm. That question could not be answered purely linguistically.

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The corpus is an interesting tool. It may be useful in some contexts. But it is a hammer, and notwithstanding how things appear to those who wield the hammer, not every legal question is a nail.