Thursday, November 14, 2019

Why Not to Be an Originalist

by Michael C. Dorf

Tomorrow morning I'll be on a panel at the Federalist Society National Lawyers Convention, speaking on the topic "Why, or Why Not, Be an Originalist?." US Court of Appeals Judge Thomas Hardiman will moderate the panel, which also will include UVA Law Prof Sai Prakash, NYU Law Prof Rick Pildes, and US Court of Appeals Judge Amy Coney Barrett. Based on our planning conference call and the known priors of the panelists, it is very likely that Prakash and Barrett will offer reasons to be an originalist, while Pildes and I will offer reasons not to be an originalist.

Before proceeding to preview my remarks, I want to say a few words about Fed Soc. Recently, I have watched uneasily as some very prominent members have debased themselves by carrying water for Donald Trump in the apparent view that his nomination of conservatives to the federal bench justifies a kind of Faustian bargain. By the same token, I admire other conservatives with ties to Fed Soc who have recognized the threat that the current president poses to the Republic, even at the cost of being called "human scum."

Those points aside, I greatly respect Fed Soc's longstanding and genuine commitment to open debate. I am not a mere token liberal on tomorrow's panel. And that has generally been my experience with national Fed Soc events and when I am asked to offer a counterpoint to an invited speaker at a Cornell Fed Soc chapter event. (This was also true when I used to be asked to play that role at Columbia Fed Soc chapter events.)

Okay, so now onto the preview.

I'm speaking last on the panel, so part of what I have to say will depend on what other panelists say. Putting aside counterpunching, here are the main points I expect to make:

(1) In order to decide whether to be an originalist, one must begin with a clear idea of what an originalist is. A judge or scholar is not an originalist just because she or he consults historical materials dating to the Founding (or to Reconstruction with respect to the 14th Amendment or to other periods with respect to other amendments). Just about everyone thinks that such materials are relevant to constitutional interpretation. Originalists sometimes claim that materials related to the original understanding are not merely relevant but dispositive; however, most originalists also claim to accept at least some version of stare decisis, which undercuts the idea that such materials are always dispositive.

So what exactly is originalism? The short answer is that it is a relatively novel ideology.

Originalism as a distinctive interpretive methodology arose in the 1970s and 1980s roughly contemporaneously with and in the same circles as the Federalist Society. Originalism was chiefly a reaction against what its proponents regarded as the excesses of the Warren and Burger Courts. Rather than imposing their values on society, early originalists argued, judges should only displace the outputs of majoritarian processes when the Constitution requires that result--and where the language of the Constitution is unclear, a judge resorts to original intent because doing so grounds the otherwise problematically countermjaoritarian institution of judicial review in the supermajoritarian intentions of the People who adopted the Constitution.

My co-blogger Prof Eric Segall frequently points out that early originalists typically coupled their originalism with a commitment to judicial restraint. To override a contemporary majority, in this approach, it's not sufficient that arguments based in original understanding be plausible; they need to be slam-dunks. Understanding that originalism as a distinctive methodology was created to serve a distinctive ideological purpose helps one understand both why originalism began as an adjunct to judicial restraint and why eventually originalists shed their commitment to judicial restraint.

As the Warren and early Burger Courts faded into history, originalism drifted away from its critique of judicial activism. The political conservatives who had disliked the countermajoritarian output of the Warren and early Burger Courts developed a fondness for judicial activism once there was a conservative majority on the Supreme Court. Originalism was thus transformed from a shield against what its proponents saw as illegitimate liberal decisions striking down laws adopted by conservative lawmakers into a sword that could be wielded by conservatives to strike down laws adopted by liberal lawmakers.

Originalism coupled with judicial restraint could not invalidate affirmative action, campaign finance regulations, or gun control. Abandoning judicial restraint led to an "unbound" form of originalism that licensed conservative judicial activism, even as judicial conservatives continued to complain about liberal judicial activism in cases involving such matters as abortion, the death penalty, and gay rights.

Accordingly, and at the outset, if one is deciding whether to be an originalist, one must have in mind what kind of originalist one is considering being. Do you want courts to defer to legislative outputs absent very clear evidence in the text or original understanding? Or do you want to be the kind of originalist who licenses judicial activism in the name of the original understanding? And do you have some principled basis for choosing one of these paths, or is your selection of methodology based on a calculus about what methodology will, over the long run, produce results you favor on ideological grounds?

(2) Whether to couple originalism with deference is not the only choice you'll need to make among various originalisms. Early versions of originalism have also been largely displaced in another way. Early originalists wanted to give effect to the original subjective intentions and expectations of the Constitution's framers and ratifiers. That view has been largely supplanted by the view that judges ought to give effect instead to original public meaning. It's useful to remember why public meaning won out over expectations and intentions. Expectations-and-intentions originalism had difficulty responding to a fairly powerful critique consisting of the following elements:

(a) As a general matter, law should consist in the authoritative utterances of the lawmakers rather than their subjective expectations or intentions.

(b) That is especially true with regard to the Constitution, given that the Convention met in secret so that the intentions of the attendees were deliberately withheld from the public, and the ratifying conventions included so many people as to make an inference of subjective intent and expectation virtually impossible to reconstruct.

(c) That observation applies to subsequent amendments as well, even though they were proposed through a public process.

(d) The intentions and expectations of the framers were frequently unclear even with respect to issues that were alive at the time (think about the controversy in the Washington Administration over whether Congress had the power to authorize the first Bank of the United States) and are thus even more opaque with respect to issues the framers did not and could not anticipate.

(e) The framers' subjective intentions and expectations on normative questions reflect views we now regard as odious (such as racism and sexism) and do so in large part because the constituencies who were the targets of these odious views (such as enslaved African Americans and women) lacked a voice in the government.

(3) The foregoing critique is so powerful that just about everyone claiming to be an originalist these days endorses original public meaning rather than subjective concrete expectations and intentions. But that shift has robbed originalism of its main selling point: determinacy. To be sure, as points 2(c) and 2(d) reflect, even expectations-and-intentions originalism was not nearly as determinate as its proponents claimed, but concrete expectations and intentions sometimes are determinate in ways that public meaning is not.

For example, Chief Justice Taney speaking for the Supreme Court in Dred Scott said that a person "whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves" could not be a US citizen entitled to sue in US courts. Why not? Because of the subjective expectations and intentions of the framers and ratifiers of the Constitution. At the Founding, African Americans, Taney said,
had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.  . . . And, accordingly, a negro of the African race was regarded by [the colonists] as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence and afterwards formed the Constitution of the United States. 
The Dred Scott Court was probably right in its description of (white) public opinion at the time of the Constitution's adoption and thus right about the original intent. Likewise, other odious decisions such as Plessy v. Ferguson and Bradwell v. Illinois may well be right as a matter of original intent. At a bare minimum, a case like Bolling v. Sharpe -- which invalidated de jure racially segregated schools in the District of Columbia based on the Fifth Amendment's Due Process Clause -- seems impossible to square with the original expectations and intentions of the Eighteenth Century framers and ratifiers of the Fifth Amendment, many of whom owned slaves.

Public meaning as something distinct from what the audience in 1789, 1791, or 1868 expected in concrete cases solves the problem of odious results, mostly by understanding "meaning" in a quite abstract way. If we divorce the meaning of "freedom of speech" from what the members of the 1791 polity thought it implied for concrete cases, then it becomes possible to say that laws restricting campaign contributions abridge freedom of speech. If we divorce the meaning of "equal protection" from what the Reconstruction Congress that voted for segregated schools and the Freedmen's Bureau expected or intended, it is possible to see Brown v. Board of Education and decisions barring most race-based affirmative action as consistent with the provision's original meaning.

But if one defines the meaning of constitutional terms at a sufficiently high level of generality in order to avoid odious results, originalism ceases to be a distinctive approach to constitutional interpretation. Jack Balkin got a lot of attention for arguing that originalism based on original public meaning is indistinguishable from living constitutionalism, but the point had already been made by others, including such notable nonoriginalists as Ronald Dworkin.

And if originalism isn't really any different from living constitutionalism, the right answer to the question of whether or not to be an originalist is "it doesn't matter."

(4) The problem, however, is that while original public meaning originalism does not fundamentally differ from living Constitutionalism, many judges and the public at large continue to adhere to or support the discredited expectations-and-intentions version of originalism. They borrow the patina of respectability that scholars and learned judges give to originalism via resort to original public meaning and use it to purport to justify appeals based on expectations and intentions.

In my oral remarks, at this point I'll invoke a few illustrations that I describe in greater detail at pages 2020-23 of my 2012 Review essay in the Harvard Law Review. There I cite examples of Justices Scalia and Thomas talking the talk of original public meaning in theory but walking the walk of original expectations and intentions in concrete cases. I also identify examples of politicians routinely speaking about expectations and intentions. Arguments of the form "Nobody in 1868 expected that the Fourteenth Amendment would forbid sex discrimination/abortion prohibitions/laws barring same-sex marriage" litter the public discourse about the Constitution.

Thus, one very good reason not to be an originalist is that even if you are very careful only to endorse public-meaning originalism, your defense of any form of originalism will be used to give unearned credibility to the widely-and-rightly discredited expectations-and-intentions originalism. Given that public-meaning originalism is essentially living Constitutionalism, the better course is the one that leads to less confusion: Don't claim to be an originalist.

(5) Indeed, confusion may be too charitable a term for the phenomenon I've just described. "Bait and switch" seems more accurate. Scholars and other sophisticates defend original public meaning but judges practice original expectations and intentions, which politicians sell to the public as determinate.

Yet even that account may be too generous. A more accurate description is probably something like this: Judges who call themselves originalist sometimes invoke original public meaning, sometimes invoke original expectations and intentions, and sometimes simply ignore original understanding altogether, but in any event they vote their ideological druthers. And it happens that the judges and justices who call themselves originalists have conservative ideological druthers.

As I explained in an August 2017 blog post, that is not what one would expect if original public meaning were determining results. Although originalism should be on average small-c conservative because it is backward looking, so much of modern big-C Conservatism is a modern invention that one can only conclude that it is the ideology, not the supposed jurisprudential methodology, that drives the results self-professed originalists reach. A follow-up essay on my blog by Prof Joseph Kimble summarized further evidence for my conclusion, based on empirical studies of the SCOTUS and of the Michigan Supreme Court. The title of Prof Kimble's post usefully summarizes his findings. It is "Originalism and Textualism in Action: Not Constraining and Not Neutral."

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So in the end I suppose the answer to the question whether a judge should be an originalist depends on whether the judge wants a means to shield from the public and possibly even from herself the fact that her values and ideology play a very large role in how she resolves contested legal questions.