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."

* * *
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.

13 comments:

Joe said...

The c. 1980 breed of originalist regularly (there are enough here to point to different people on the other side) was not really for "restraint" except to the degree that darn the originalist approach using Prof. Segall "very clear" (paraphrase) test made it necessary to advance conservative ends. This includes both restraint as to stare decisis regarding major liberal precedents and overall. The numbers here might have increased significantly, but they always seemed to be there.

There is also the selective usage problem. Taney cited something that basically was a sentiment on some level. But, the actual holding regarded denying blacks (putatively free by federal law) a right to sue in a federal court. In 1857.

It is far from clear that it would have be a clear understanding (especially since the result in certain cases could harm the interests of whites) of the community we are caring about here. Missouri in the 1850s actually gave as a matter of state privilege counsel to slaves that brought freedom suits. Certain states at least in the late 18th Century gave certain procedural rights to slaves accused of a crime. But, Taney argued they could not -- for any reason -- have standing in a federal court.

This sort of thing comes up repeatedly when originalism comes up. Move past my basic understanding that there probably was some general understanding (put aside good constitutional policy left open by the text) from the founding generation (then and later such as in 1868) that the Constitution will be applied in an open-ended way as new experiences occur that they themselves were not aware of.

The whole enterprise of originalism at some point is oh so tiresome, especially given how firmly that side likes to toss epithets to the other. But, it does give Shag a lot of reading material.

===

As to the opening of this blog post, a reply to a Eric Segall tweet linked an article reporting Brett Kavanaugh will give the featured speech at the society's annual dinner. The person said: "And today, the Fed Soc will gather to gloat on using Trump as a vehicle to infect the federal judiciary with those who will make the value judgments they desire in controversial cases, all under the guise of original public meaning." I think such sentiments have force and Segall, who shares Prof. Dorf's sentiments about the many good people there, has tweeted various sad remarks about how the society has been tainted. This includes members refusing to admit how the society influences the appointment of Trump judges, a key reason many support Trump.

Leonard Leo is the executive vice president. Kavanaugh is a featured speaker. Other examples can be provided. I'm not sure about this "some" business, but I respect Segall and Dorf a lot, and they can take their own counsel.

Unknown said...

From Richard
Bethesda MD

This is my first post to Dorf on Law, but I have been a reader for several years. Full disclosure: I am not a lawyer or historian, but simply an ordinary citizen who loves his country and wants to understand what is going on with it.

Originalism is one of my nutty buttons, because I simply am unable to understand why it has such devoted adherents. Jefferson would have had trouble too; after all he said the “earth belongs…to the living.”

How about Madison? He was an ardent federalist the time of the Convention, but several years later he was a states rights sort of guy when he wrote the Virginia Resolutions after the Alien and Sedition Acts. In fact, this very example shows the underlying truth: You can find a quote to defend your positon just about everywhere. I think Google has helped originalists. All you need do is make up your mind on a subject according to your own belief systems, then simply use a search engine to find a quote that supports your belief- and voila!. Be sure to leave out any quotes that don’t support it.

A nice example is the Heller decision of 2008, the case which retired Justice Stevens called the worst during his tenure. An originalist has to willfully and consciously ignore half the second amendment. Looking for support for my position? Here’s Madison: (albeit in a different context): “Shall one part of the same sentence be excluded from sharing the meaning; and shall the more doubtful…terms be retained in their full extent and the clear and precise expressions, be denied any significance whatsoever?” (this quote from Noah Feldman’s recent book on Madison).

To be sure, that ultimate originalist, Roger B. Taney, did not use Google in his Dred Scott decision That abomination even outdoes Koramatsu; (and perhaps the upcoming DACA decision). Always interesting to see how the justices can contort things to suit their individual agendas

My favorite originalist premise has actually never been tested, namely that women do not have the right under our Constitution to be Supreme Court justices, congresswomen, or presidents. The 19th amendment gives them the vote but not the right to hold office. The first three articles all use the pronoun ‘he.’ It will not do to say that the pronoun ‘he’ is also applicable to women as well. The Founders quite clearly differentiated between the sexes (and so did Abigail Adams; “Remember the ladies” she told her husband. Hah!) If you need any further convincing, check out the 14th amendment which is quite clear on the applicability to males. The ‘Equal Protection of the Laws’ gives…equal protection but not the right to be, say, president and such. If the Equal Rights Amendment passes, that will change things, but under the current status, women are still excluded from the federal government in these capacities.

An originalist has no choice but to boot the women out of Congress and the Supreme Court. You can’t simply rely on tradition (one of Justice Scalia’s favorite fall-backs when he couldn’t find a quote to support his position… he had to think of something, didn’t he?).

Oh well. I’m sorry I won’t be able to get to the Federalist Society meeting (wasn’t invited), but I know Professor Dorf will do a splendid job as he always does.

egarber said...

This is great. Love the topic. Will there be video posted?

Steve Davis said...

I'm not quite convinced that there isn't SOME level of generality at which we should understand the "original public meaning" of Constitutional provisions that would give us an interpretive scheme that lies somewhere between "originalism" as it is frequently touted by conservatives and "living constitutionalism."

I'm not sure what that level is, and it probably varies from case to case, but I can't help but think that some trace of originalism -- what I call "smell test" originalism -- provides useful guidance for how judges should do their jobs. Originalism isn't determinative, but it can exclude interpretations that simply run too far afield of how the language would have been understood when it was enacted. The interpretation must at least pass the originalist smell test in some way. It's got to be traceable to the text, as it would originally have been understood.

For instance, does the vague "privacy right" found in the Due Process clause in Roe v Wade mean you have a Constitutional right to take cocaine? I think most would say no. One valid objection, I think, is that this interpretation simply lies too far outside all the possibly reasonable ways that the Due Process clause would have been understood when it was passed, at almost any level of generality. There might be so many other objections to this outcome that the originalist objection would be unnecessary, but at least in the abstract this seems to me like a potentially useful interpretative guide.

Joe said...

The reasonableness question is usually a good factor to mix in.

Roe v. Wade cited a collection of cases that dealt with decison-making in family life. There was a wider kernel there regarding such things like sexual matters overall, but the core was questions of family life, childbearing and so forth.

Thus, moving from contraceptives, pregnancy decision-making, questions involving child-raising (such as sending them to parochial school) etc. to drug use is a big step. It is a higher level of generality than Roe v. Wade itself. It's possible [Justice Tom Clark eventually wrote a short article regarding personal marijuana use that suggested it is protected by the right of privacy & even there marijuana isn't cocaine] but harder.

This does come up in originalism debates but cocaine level hard cases often are avoided. So it is unclear how useful it is. For instance, is sex equality cocaine level? Prof. Eric Segall has said that Roe v. Wade was wrongly decided but that the same sex marriage cases was a clear case that was rightly decided. YMMV here.

TruePath said...

The question of whether claiming to be an originalist is harmful insofar as it gives support to these bad arguments is a more complex issue insofar as it also means foregoing the opportunity to more credibly argue that these are bad forms of originalism.

Absent moving the needle so far that originalism becomes seen as a completely fringe view (an impossible task given the prevalence of self-described originalists on our courts) it's unlikely disavowing originalism will shift the public sense that it's a controversial but respectable view. Moreover, one audience that is pretty important are the self-described originalists on the bench.

I think the very history you cite here proves this point. The critiques you mention didn't succeed in pushing originalism into disrepute but did succeed in shifting what those who describe themselves as originalists believe.

IMO lots of the people who identify as originalists primarily desire what they see as a public acknowledgement that it's the written constitution that controls not free form moral reasoning. Push back on originalism and they will fight back giving further credance to these bad arguments. If we instead costlessly concede the abstract idea of originalism and push for a higher degree of generality we might turn them into occasional allies.

Coyote said...

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

Raoul Berger actually agreed with this. He opposed mind-reading but instead advocated using statements of supporters of a particular statute or constitutional amendment as being decisive in regards to interpreting it.

"(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."

I think that the response to this might be to focus on "original understanding" here--as in, to look at statements from ratifying conventions and perhaps elsewhere as well to see just how exactly people back then actually understood these provisions. Of course, using dictionaries and whatnot could also help with this--in the spirit of original meaning--but this wouldn't be the only tool in one's arsenal to deal with this.

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

I think that you're going too far here. After all, we know for sure that there were certain things that the draftsmen of particular US constitutional amendments didn't actually intend to do. For instance, no contemporary supporters of the 5th and 14th Amendments actually intended either of these two amendments to ever nullify the natural-born citizen requirement for the US Presidency.

Coyote said...

"(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."

If you're saying that the constitution needs to evolve to new circumstances, though, then this logic could also apply to the issue of overruling explicit constitutional text. After all, theoretically speaking, one could come up with a scenario where two parts of the US Constitution (with one part ratified later than the other part) were initially understood as being harmonious but where changes in facts over time could make these provisions appear much less harmonious than they were at the time that they were written and ratified. For instance, if the original US Constitution would have explicitly allowed US states to ban interracial marriage and/or same-sex marriage, this part of the original US Constitution could have initially been viewed as being compatible with the 14th Amendment but as a result of changes in facts over time, present-day observers might not have seen these two parts of the US Constitution as actually being compatible.

"(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."

The problem with that argument, though, is that it would, at least in some cases, justify overruling explicit constitutional text as well. For instance, in a scenario where the original US Constitution would have explicitly allowed US states to have segregated schools, anti-miscegenation laws, same-sex marriage bans, et cetera and where the draftsmen of the 14th Amendment would have explicitly stated that the 14th Amendment does not affect this earlier part of the (original) US Constitution in any way. If results-oriented judging is so important, then it would logically follow that we can overrule the presumption against implied repeal as well as the presumption in favor of more specific language (over more general language) in this specific case so that we can achieve a good result.

This is why I've also embraced Paul A. Clark's argument in regards to the 5th Amendment and the natural-born citizen requirement for the US Presidency. After all, why exactly should I be bound by the Framers' judgment in regards to this when this judgment is repulsive to my own conscience? For reasons of settlement and coordination? But judges don't seem to care about settlement and coordination when it comes to statutes or state constitutional provisions that settle extremely important questions; so, why exactly should they slavishly care about settlement and coordination in regards to this specific issue?

Coyote said...

"IMO lots of the people who identify as originalists primarily desire what they see as a public acknowledgement that it's the written constitution that controls not free form moral reasoning. Push back on originalism and they will fight back giving further credance to these bad arguments. If we instead costlessly concede the abstract idea of originalism and push for a higher degree of generality we might turn them into occasional allies."

If the written constitution controls but its meaning can be altered at will, though, then the written constitution doesn't actually control all that much, does it?

Coyote said...

@Unknown: "My favorite originalist premise has actually never been tested, namely that women do not have the right under our Constitution to be Supreme Court justices, congresswomen, or presidents. The 19th amendment gives them the vote but not the right to hold office. The first three articles all use the pronoun ‘he.’ It will not do to say that the pronoun ‘he’ is also applicable to women as well. The Founders quite clearly differentiated between the sexes (and so did Abigail Adams; “Remember the ladies” she told her husband. Hah!) If you need any further convincing, check out the 14th amendment which is quite clear on the applicability to males. The ‘Equal Protection of the Laws’ gives…equal protection but not the right to be, say, president and such. If the Equal Rights Amendment passes, that will change things, but under the current status, women are still excluded from the federal government in these capacities."

I thought that the term "person" is used in regards to US presidential qualifications in the US Constitution?

Joe said...
This comment has been removed by the author.
Joe said...

"written constitution that controls"

On some bland level, who disputes this? Some very limited group at best.

Plus, that isn't what they are argue, is it? The text, as understood today, would follow that rule. The written would control. They aren't just "textualists" though the two seem to be confused repeatedly.

There is that "origin" bit. They do at times argue that originalism is the only way to have the written constitution control, but a basic problem is that in action "originalism" tends to if anything promote "free form moral reasoning." Anyway, I'm not going to grant their dubious premise on that point.

Some general idea that the written constitution controls and in some fashion a helpful way to understand its meaning is to research "original" something (understanding? meaning? whatever) is fine on some level. The answers there will repeatedly get you a range of things (same sex marriage? sure! separation of church and state? sure! a more accomodationist view? sure!) so there can be cross-ideological allies at least ad hoc.

Plus, on various easier questions the various sides can agree too. Kavanaugh, e.g., argued the stare decisis is originalist.

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