Tuesday, November 22, 2022

The Impossibility of Principled Originalism

 By Eric Segall

Last week on this blog, Mike talked about how the leadership of the Federalist Society asked its co-founder Professor Steven Calabresi to not identify himself in that way when advocating certain legal positions concerning the so-called independent state legislature doctrine the Court is going to address later this term. In his final paragraph, Mike wrote the following:

The Fed Soc website proclaims the 'duty of the judiciary to say what the law is, not what it should be.' Evidently, it also includes an implicit exception: unless what the law is doesn't align with the ideological druthers or institutional interests of the Republican Party; then it's the duty of the judiciary to pretend the law is what we wish it were.

Of course, we all know that the Federalist Society leadership is not interested in real judicial engagement with text and history but with political results they favor. But what about the judiciary and the legal academy? Is it possible to be a principled originalist? The answer, given today's strong culture of judicial supremacy, is simply no.

The guests on my last two Supreme Myths podcasts were Saul Cornell, history professor at Fordham, and Jud Campbell, law professor at the University of Richmond (visiting this semester at the University of Chicago). Both men have studied the founding era for years and written in great detail about constitutional thinking at the beginning of our history. They identified many ways today's originalists simply do not adequately wrestle with the debates surrounding the ratification of our Constitution and how that failure leads to misleading accounts by many of today's so-called originalists.

First, and most importantly, both men agreed that how we view rights today simply has very little in common with how rights were viewed in the founding era. In modern America, almost everyone equates rights with judicially enforceable rights. But that idea was not common at the founding. 

The people back then viewed most rights as pre-existing prior to the ratification of the Constitution, which simply confirmed the existence of those rights. English and American thinkers recognized the importance of rights long before judicial review emerged which was around the time of ratification. But even after judicial review emerged, it was still primarily the job of the people, juries, and the legislature, not judges, to safeguard most of these rights. But originalists today advance strong theories of judicial review that simply are inapposite to the theories of rights prevalent at the founding. 

Second, both Cornell and Campbell agreed that in the founding era, almost all rights were subject to  state regulation if they interfered with legitimate public policy concerns. In other words, rights were not trump cards at all when it came to state laws implicating or limiting those rights. Yet, in the Bruen case from last term, the majority opinion laid down a purely historical test for laws regulating guns, suggesting that policy concerns were out-of-bounds for judges reviewing such laws. This approach is anti-historical, anti-originalist, and represents living constitutionalism on steroids. The irony of five self-identified originalists adopting an approach to constitutional interpretation that would have been unrecognizable to the people who drafted and ratified our Constitution is almost too much to bear.

Third, both men agreed that the founding fathers expected modest, humble, and extremely deferential judicial review of the kind we have not seen from the Supreme Court since before 1857 and the infamous Dred Scott case. This aspect of history was well-accepted by the original originalists of the 1970's and 1980's, as I outlined in my book Originalism as Faith. The deferential aspect of originalism was removed by the New Originalists of the 1990's who, after 12 years of Reagan/Bush judges, wanted a more aggressive theory of judicial review for political purposes, not because that form of review was consistent with the founding era. In other words, real historical accounts were irrelevant to the move by most originalists from deferential to strong judicial review.

Fourth and finally, Professor Campbell discussed on the podcast an article he wrote for the Yale Law Journal that persuasively demonstrated that virtually all first amendment doctrine--from the ban on viewpoint regulation to public forum analysis to the striking down of commercial speech laws--is simply unjustifiable from an originalist perspective. Yet, Justices Scalia and Thomas throughout their careers voted to strike down dozens of laws implicating free speech that simply cannot be justified by any version of originalism that takes history seriously. 

The same is likely true for the Court's non-discrimination cases under the equal protection clause (especially strict scrutiny for affirmative action). Although a few originalists, such as Professor Chris Green and Justice Thomas, have suggested a shift toward the privileges or immunities clause and away from the equal protection clause when it comes to non-discrimination cases, the Court is nowhere near making that shift.

A principled originalist would have to wrestle with all the aforementioned historical bases for judicial review and then figure out which precedents to keep and which to throw away under principled originalism. But such a theory of precedent does not currently exist and any such theory would likely have to rely on modern notions of reliance and consequences, not originalism, to make sense or be politically acceptable. The reality is that few if any originalists would throw out most modern doctrines of judicial review that treat rights so differently than they were treated at the founding.

As I've recounted many times, Alexander Hamilton, responding to Anti-Federalist attacks on how judges would have too much power under the new Constitution, said in Federalist No. 78 that judges would not strike down laws unless they were at an "irreconcilable variance" with the Constitution. This idea was consistent with how other founding fathers thought about judicial review: judges would exercise such a great power modestly, humbly, and rarely. A major reason for that limited view of judicial review was that the founding fathers, as noted above, simply viewed the relationship between rights and courts very differently than we view that relationship today. That idea is simply not debatable on historical (as opposed to policy) terms.

But that perspective is not the one offered by most of today's originalists and all the self-styled originalist justices. None of that is to say that our world today would be a better place with much more deferential judicial review (though I think it would be), but it does demonstrate that in a world of strong and non-deferential judicial review (which is not going to change anytime in the near future), there is no such thing and can be no such thing as principled originalism.