By Eric Segall
I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should be wrestled with by originalist scholars who favor the results in these and similar cases.
Colby correctly points out that, although there are numerous and varied originalist theories, most of them are centered around the importance of constitutional text. Professor Lawrence Solum, the only law professor to testify about originalism during then-Judge Neil Gorsuch’s confirmation hearing, said during his testimony that the “whole point of originalism is to respect the text.” Numerous prominent academic originalists such as Michael Paulsen, Stephen Calabresi, and Saikrishna Prakash, as well as many others, give the text interpretative primacy, and, according to Colby, argue that “once a judge deviates from the ratified text, she is making law, rather than following it.”
So-called New Originalists argue that constitutional interpretation must be guided by the original public meaning of the text, not the intentions of those who wrote the text. Professor Solum, who perhaps has written more about originalism than any other person dead or alive, has said that virtually all originalists agree with two principles: the meaning of the constitutional text is fixed at the time it was ratified (the “fixation thesis"), and that meaning constrains constitutional interpretation (the “constraint thesis”). Colby accurately points out that “virtually all originalists--even those on the less textual end of the scale-have tended to coalesce around Professor Solum’s …two ideas [that] represent the core of contemporary originalism.”
Hence the conundrum: anti-federal power cases like Printz, Alden, and Seminole Tribe, hailed as correct by most conservative originalists, are based on general structural arguments, not specific constitutional text. Nowhere in the Constitution is there a syllable suggesting Congress cannot commandeer state legislatures, that states can’t be sued by their own citizens in federal court, or that states can’t be sued under federal law in their own courts. Numerous other cases based on structure not text could be added to the list. Shelby County v. Holder articulated an equal state sovereignty principle limiting Congress’ powers under the Reconstruction Amendments, and recently the Court held states couldn’t be sued in the courts of other states. despite an absence of text supporting either result. All of these cases are based on general and contestable structural principles underlying our constitutional system, not the original public meaning of the constitutional text.
These cases raise two major problems for originalists. First, structural decisions overturning state and federal laws based on controversial judicial value judgments about the proper relationship between the state and federal governments are at odds with the general originalist principle that judges shouldn’t overturn legislation absent inconsistency with constitutional text. All of the cases discussed above were decided 5-4 with GOP-appointed justices in the majorities, and there is little persuasive originalist reasoning in any of them. An objective reader of the disagreements among the Justices in these decisions would have to conclude that the cases are much more about modern value judgments pertaining to the appropriate roles of the state and federal governments than historically accurate interpretations of constitutional text.
Colby notes that a few originalists, most notably Professor Michael Ramsey, have tried to reconcile structural arguments with originalism by arguing that cases such as Printz and Seminole Tribe are based on “assumptions and implications” that can be “derived from the Founding Era and the Constitution’s original design.” But as Colby notes, and I’ve argued elsewhere, this approach has less to do with constitutional text, or its original public meaning, and much more to do with debatable summaries of historical evidence combined with modern value judgments about that evidence. This approach comes remarkably close to how a living constitutionalist would decide these cases.
This coming together of originalism and living constitutionalism is reflected in the second major issue originalists must grapple with when defending the Court’s federalism cases striking down legislation based on structure not text. The type of reasoning used by Supreme Court Justices in these cases is, as Colby persuasively points out, indistinguishable from the “penumbras and emanations” rationale of Griswold v. Connecticut. That holding, of course, led to the judicial creation of the controversial right to privacy which formed the basis of Roe v. Wade, the very case which in large part gave rise to the originalist movement, and which is still attacked by most originalists today.
Colby’s essay points out that most academics, pundits, and even judges who self-identify as originalist, have little problem with the Supreme Court employing broad structural principles in federalism and separation of powers cases while at the same time rejecting that mode of analysis in individual rights cases. Yet, both the Ninth and Fourteenth Amendments contain just as strong structural hooks for cases like Roe, Reynolds v. Sims, and Obergefell v. Hodges, as the Tenth and Eleventh Amendments provide for cases like Printz and Seminole Tribe. Few originalists, however, have wrestled with this inconsistency, suggesting that originalism, like all grand theories of constitutional interpretation, is much more about results in particular cases than consistent constitutional principle.
As I detailed in my book “Originalism as Faith,” most Originalists today do not advocate the type of strong judicial deference that defined the work of the Original Originalists such as Robert Bork, Raul Berger, and Ed Meese. Today’s originalists want judges to employ strong judicial review untethered from specific constitutional text when delineating federal and executive power while rejecting such review in abortion and gay rights cases. Perhaps there are ways to justify such dualistic methods of constitutional interpretation but, as Colby concludes in his excellent article, it is unlikely there are “easy answers” to this conflict, and “none that are likely to appeal to most originalists.”