by Michael C. Dorf
As advertised here on the blog a week ago, yesterday I participated in the Practicing Law Institute full-day conference reviewing the last Supreme Court Term. It was the 22nd annual conference; as Dean Erwin Chemerinsky noted in his opening remarks, I have presented my views at each and every such conference. I quipped that this announcement made me feel old, to which Prof Burt Neuborne, also a participant from the beginning, responded, that it made him actually be old, which, I suppose, is true of me as well. It was, as always, a fruitful day. Interested readers--especially those in need of CLE credit--can view the recorded version here. (It's expensive, even though we panelists aren't paid, because PLI has a lot of overhead to manage to make these programs available.)
Anyway, I'd like to use today's essay to discuss an issue that Dean Chemerinsky raised a couple of times during the day. He noted that in several of the Court's cases last Term, either a majority or separate opinion placed a great deal of weight on the state of the common law at the Founding in order to ascertain the current operation of some constitutional provision or doctrine.
For example, in Uzuegbunam v. Preczewski, Justice Thomas, writing for a nearly unanimous Court, looked to Founding-era common law to conclude that the availability of nominal damages suffices to establish standing under Article III. Conversely, in Transunion v. Ramirez, the Court, per Justice Kavanaugh, found that the plaintiffs lacked standing because they had failed to identify "a close historical or common-law analogue for their asserted injury." Justice Thomas (joined by the three Democratic appointees) dissented in Transunion, objecting less to the majority's reliance on Founding-era understandings of the scope of judicial power than to its characterization of them.
Those two cases and others we discussed during the course of the day led Dean Chemerinsky to observe that the increasingly prominent place given to Founding-era common law in the Court's jurisprudence shows the increasing importance of originalism on a conservative Court. I agree broadly, but I think the details worth examining.
Suppose you are an originalist of the currently fashionable variety: you equate the Constitution's contemporary meaning with its original public meaning. Would you therefore further equate the Constitution's meaning with Founding-era common law? You might, but you would need some special reason to do so. After all, as Dean Chemerinsky observed in one of our sessions yesterday, at a bare minimum you would need to know that the relevant provision was understood by the public to codify rather than depart from the common law.
With respect to standing--at issue in Uauegbunam and Transunion--the argument would have to be that when the ratifying public circa 1789 read Article III's references to "judicial power," "cases," and "controversies," they would have necessarily thought of the kinds of cases that courts of their era heard, which in turn would have invoked the common law. That's plausible, but it's hardly a slam-dunk. After all, while lawyers would have been familiar with the details of the common law, the broader public likely would not have been. To the average member of the ratifying public, the terms "judicial power," "cases," and "controversies" would have likely meant something like "court stuff" rather than invoking all of the complex doctrines that courts had developed.
In other areas the argument for reliance on Founding-era common law is also doubtful. Consider Cedar Point Nursery v. Hassid, in which Chief Justice Roberts, writing for the majority, found that a California law and regulation granting labor organizers access to private farms for up to three hours per day for up to 120 days per year amounted to a "physical invasion" of the property and was thus a taking under the Fifth Amendment (as made applicable by the Fourteenth). In response to the worry expressed by Justice Breyer (joined by Justices Sotomayor and Kagan) in dissent that the majority's approach would jeopardize numerous health and safety regimes that allow regulators access to private property, Roberts (citing earlier decisions) wrote for the majority that no physical invasion will be found where access amounts to a pre-existing limitation on the property owner's right to exclude, which in turn will include "traditional common law privileges to access private property."
But why is that so? Is it because the property owner will have acquired title aware of legal limitations and thus cannot reasonably expect greater rights? If so, shouldn't the relevant inquiry then be into the particular state law property rules at the time of acquisition? But if so, that would contradict cases that apply the same takings rules regardless of when the particular parcel was acquired. So it seems that the Chief Justice has in mind some sort of generalized common law. That reading of his opinion is backed up by the fact that he cites generic sources like the Restatement (2d) of Torts. He also cites an 1816 Massachusetts case to describe the limits of the property right that was "traditionally" enjoyed. The early date and the use of a jurisdiction that was a state from the Founding suggest that Roberts and the rest of the majority think that the scope of property rights subject to takings analysis is substantially informed by Founding-era common law.
But again, why? Founding-era limits on the scope of property rights cannot be very informative of the expectations of current property owners. Hence, presumably the majority in Cedar Point has in mind that those limits are informative of the scope of the Takings Clause, much in the same way that when the Court (again through Chief Justice Roberts) has described the categorical exclusions from the First Amendment's protection for "freedom of speech," it has justified them by reference to the "traditional" limitations "from 1791 to the present."
Here, then, is the originalist reasoning of the Court in takings cases, in free speech cases, and in other contexts I haven't bothered to elaborate: The scope and limits of constitutional rights and other constitutional provisions are informed by the understandings of the public at the time of ratification, which will in turn reflect the common law at the time.
Note, however, that this reasoning appears more sound if one is an old-style expectations-and-intentions originalist than if one is a currently fashionable public-meaning originalist. Sure, we can expect that the ratifying public will have expected that property rights and free speech could be limited pursuant to traditional common law exceptions, but without knowing a whole lot more, we cannot say that that expectation was a product of the meaning of the particular words of the Fifth and First Amendments, as opposed to expectations formed through other mechanisms. Put simply, without substantial inquiry into distinctively linguistic understandings of the particular words of the Constitution, there isn't good reason to equate the scope and limits of Founding-era common law with the scope and limits of the relevant constitutional provisions.
And to be clear, the Court does not typically engage in distinctively linguistic analysis, skipping right over that step to examining the content of the common law. That move suggests that, as I have argued many times before, Justices who purport to be originalist talk the public-meaning originalism talk but walk the expectations-and-intentions originalism walk. And that in turn opens them up to the substantial body of work (some of it by public meaning originalists themselves) criticizing expectations-and-intentions originalism.
Of course, even if it can be shown that public-meaning originalism favors a particular interpretation, that shouldn't necessarily be dispositive. Consider the Fourth Amendment, which, by its text, does not expressly require warrants. It says only that for a warrant to issue, there must be probable cause. Some scholarship shows that the Founding-era understanding was that a warrant provided officers with immunity from liability in tort. If a federal officer executed a warrantless entry and search, he could be sued for trespass, but a warrant would provide a defense. Thus, even without requiring warrants, the Fourth Amendment could protect privacy by incentivizing officers to obtain warrants, and then only based on probable cause. And that understanding makes sense not just of the practice at the Founding but of the text itself.
Yet it doesn't necessarily follow that the modern case law--which deems warrantless searches unconstitutional absent one of the (numerous) valid exceptions the Court has articulated--is wrong. Perhaps liability in tort was sufficient in the Founding era to protect against unreasonable searches and seizures, but modern doctrines like qualified immunity undercut the key incentives, and so obtaining the protection available in the Founding era might well be thought to justify deeming warrants actually required today. We have here what is sometimes called a problem of translation.
Admittedly, construing the Fourth Amendment not to require warrants makes sense of the text, but construing it to require warrants also makes sense. How so? Suppose the proprietor of a concert venue posts a sign saying "Tickets: $25." The sign doesn't expressly state that one needs a ticket to attend the concert, but that is surely a fair inference. Likewise, we might think that a fair inference of the text of the Fourth Amendment is that for a search to be reasonable, a warrant is generally required. Again, that's not what the text literally says, but it's a plausible reading and arguably the reading that best carries forward the values the Fourth Amendment's framers and ratifiers understood it to embody, in light of the change in surrounding context.
Bottom Line: If one wants to be an originalist, there may sometimes be good reason to refer to Founding-era common law, but public meaning originalism does not automatically mean that such sources are informative; and there are good reasons not to be an originalist of any sort.