Monday, July 25, 2022

Expected Applications, the Second Amendment, and Why Real Originalism is Either Intolerable or Impossible

 By Eric Segall

Last week at the Law & Liberty blog, Professor John McGinnis, a self-proclaimed originalist, was quite giddy about the Court's Second Amendment opinion in New York Pistol & Rifle Association v. Bruen striking down a New York law requiring a special permit to conceal carry a handgun. His essay, titled "Bruen's Originalism," takes away three main points from the case:

First, it considers carefully how the right to bear arms would have been expected to be applied both before and around the time of its enactment. It thus endorses “expected applications” as a way to give a provision concrete meaning. Second, many, if not most, of these expected applications derive from legal context—both how the Second Amendment reflected previous law and what subsequent law said about how it was to be applied. It thus suggests that this constitutional provision which seems on its face to be written in ordinary language may require a legal gloss to be fully understood. Finally, Bruen stands for the proposition that legal doctrine can be derived from a provision’s original meaning.

Leaving aside the obvious point that the Court's historical analysis was an after-the-fact cobbled-together rationale for a result reached on other grounds, I want to focus this post on McGinnis' first point about "expected applications.” If  McGinnis is descriptively right, his analysis goes a long way to showing why true originalism is either intolerable or impossible.

McGinnis concedes that there is an intramural debate among academic originalists concerning "expected applications." He says the following:

One of the controversial issues in originalist theory is the use of “expected applications.” Expected applications are instances of how those around the time of enactment thought the provisions or provisions with similar language would be applied. Some originalists, like Jack Balkin, reject expected applications even as evidence of what the Constitution means, preferring to interpret the text as enacted, unmediated by the applications surrounding the era of enactment. In contrast, Mike Rappaport and I believe that the expected applications are often good evidence—sometimes the best evidence—of what the text actually meant....Thomas clearly embraces expected applications.

I don't think this really captures Balkin's position but it does accurately state the opposition to strong reliance on expected applications by most New Originalists, including Professor Larry Solum. For example, in trying to justify why the 14th Amendment protects against gender discrimination today, given that we know that was not the original expectations of those who wrote and ratified the Amendment, Solum has said the following:

[I]n Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender. . . . Bradwell could have been understood as consistent with the [Privileges or Immunities Clause] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

I doubt McGinnis would agree that known expected applications of imprecise language can be waved away by later judges just because of "changing beliefs about facts."  That is why, I think, McGinnis believes there is disagreement among originalists about how binding expected applications actually are on judges. Solum's approach, as I've written many times before, is indistinguishable from living or common law constitutionalism (see below). I don't think McGinnis is a living constitutionalist.

Five other Justices joined Thomas' opinion. Let's assume McGinnis is right and the expected applications of those who ratified and voted for constitutional text provide very strong evidence of what the words originally meant, and judges should follow that evidence. What would that approach, faithfully applied, mean for constitutional law. Hold on to your seats.

1) As Professor Jud Campbell has shown, the founders did not generally expect the First Amendment to bar the government from penalizing speech after-the-fact. There is much evidence to support this history both when the Amendment was originally enacted and in 1868 when the 14th Amendment, according to the Court, first applied it to the states. This sincere application of the First Amendment would show that just about every free speech case in history striking down laws that were not prior restraints is inconsistent with the original expected applications of the ratifiers of the First Amendment. Would McGinnis go that far? Even if he would apply precedent faithfully, what about new issues of free speech? 

2) There is simply no question that the 14th Amendment was not meant to forbid gender discrimination. At the time of  ratification, women had no federal right to vote and could be prohibited from many occupations (and were); wives in many states were effectively the property of their husbands. Would McGinnis say gender discrimination is not prohibited by the 14th Amendment? What about a state law giving husbands almost total control of their wives?

3) There is much evidence that those who ratified and voted for the 14th Amendment thought segregated schools did not violate the Amendment. There are a few minority views on this question but they are not persuasive. The Court's decision in Brown says nothing to the contrary regarding original understanding. Is McGinnis (or Thomas) willing to reverse Brown?

4) Similarly the people who ratified and voted for the 14th Amendment thought and expected the Amendment would allow state bans on interracial marriage. The Court's decision in Loving v Virginia says nothing to the contrary regarding original understanding. What say you Professor McGinnis?

5) As McGinnis himself has written, the founding fathers expected modest and humble judicial review coupled with a "duty of clarity" to explain with very strong reasons why a law is unconstitutional. He has even said the appropriate standard as an original matter was that judges "were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision." 

McGinnis does not go quite as far as my proposed "clear constitutional error" standard which I glean from Founding history but in any event many of the cases he supports, including Bruen, do not meet his own standard. Moreover, as Professor Campbell and I have both pointed out, constitutional rights according to the Founders were subject to a balancing with the harm to the public caused by the judicial enforcement of the right. If McGinnis really applied his expected applications approach sincerely, he would have to accept, contrary to Thomas' statements in Bruen, that all constitutional cases require balancing. Text and history alone are simply not the only calling cards as an original matter.

McGinnis is correct that most of the time the best evidence of original public meaning is expected applications. But using those expectations leads to intolerable results that I doubt McGinnis or Thomas would accept. That is the precise reason why originalist scholars like Solum, Randy Barnett, and most New Originalists argue that known expected applications are not binding if "beliefs about facts" change. But if judges are allowed to throw away known expected applications under that vague and unworkable standard, then we are back to living and common law constitutionalism because for any modern case it is not hard to find changing beliefs about facts relevant to the continued validity of known original expected applications. 

So, a theory of interpretation that allows judges to discard expected applications is not really originalism, and being bound by known expected applications leads to terrible results few are willing to accept. But there is a third problem with using expected applications as a major factor in constitutional interpretation. In most, albeit not all cases, we won't be able to reconstruct expected applications because constitutional litigation today simply involves issues the ratifiers and framers of both the original Constitution and the Reconstruction Amendments could not possibly have anticipated. 

We have no idea what the original expected applications of the Founders would have been for today's modern weapons that can be hidden easily, shot quickly, and kill hundreds in minutes. We have no idea what the original expected applications of the ratifiers and voters of the 14th Amendment were concerning  many complicated issues regarding the internet, both in the areas of speech and personal jurisdiction. We have no idea what the original expected applications of the Founders would have been about a President using an unmanned drone strike to kill an American citizen abroad whom no court has found to be a terrorist but could blow up New York City with a cell phone. We have no idea what the original expected applications of the Founders would have been about congressional delegations to administrative agencies or many federalism issues in a country with 50 states (not 13) and a geography so big they didn't even have a good idea how big our country was going to be. I could go on and on.

The problems with judges using known original expected applications to decide today's cases are that such an approach leads to many intolerable modern results when we actually know the expectations and in many cases we won't know those applications anyway. The problem with an original public meaning approach that allows judges to discard known expected applications if those applications were based on false facts is that our society has changed so much since 1791 and 1868 that a judge can always find changed facts, much less changed beliefs about facts, to reach a preferred modern result which is just living constitutionalism by another name.

For all those reasons, real originalism is often intolerable in those cases where we can divine expected applications or impossible in cases raising legal issues people who lived centuries ago could not possibly have anticipated or understood.