Dynamic Originalism?

On the surface, Monday's decision in Northwest Austin Municip. Util. Dist. No. 1 v. Holder did not decide much: Holding that § 5 of the Voting Rights Act permits a utility district that does not register its own voters to "bail out" of section § 5 (if it qualifies for bailout), the Court declined to reach the question whether § 5 remains constitutional these many years since its enactment. Yet, as some commentators have already noted (e.g., Tom Goldstein here), it's hard to read the majority opinion of CJ Roberts as anything other than a warning to Congress that, if it doesn't change § 5, the Court will strike it down.

Here I want to ask how one might go about reconciling the very strong suggestion of the majority that a statute could be constitutionally valid in 1966 (as the Supreme Court said of the VRA § 5 in South Carolina v. Katzenbach), but be unconstitutional in 2009, without any substantial change in the text of either the statute or the Constitution. To put the point precisely, must CJ Roberts rely on either dynamic statutory interpretation or living Constitutionalism to support the result at which his opinion strongly hints in Northwest Austin Municip Util. Dist.?

We can set aside dynamic statutory interpretation immediately here, because there is no contention that the meaning of § 5 itself had changed. On the contrary, the very problem to which the Court points is that § 5 has not changed, even though the ostensible justification for it has changed. So how can Justices who call themselves originalists sign onto an opinion that suggests that a statute can be valid in 1966 but invalid in 2009? (Justice Thomas, who is the most originalist of the current Justices, did not join the CJ's opinion in Northwest Austin Municip Util. Dist., but his separate opinion poses the issue even more starkly, because he would have held § 5 invalid, even as he made quite clear that he thought it was valid in 1966.)

To answer my question, an originalist needs an account of what sorts of changes are and are not relevant to constitutional interpretation. In a case like Northwest Austin Municip. Util. Dist., the originalist would likely say something like this: The core meaning of the 10th Amendment doesn't change; it disallows federal statutes that cut deeply into traditional state control over elections, absent a showing that the statute falls within some enumerated power; where the asserted source of power is enforcement of the Fifteenth Amendment, validity in turn will depend "on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible;" this was proven in 1966 but there is no comparable record today.

In short, an originalist will allow that changed facts can warrant changed applications of constitutional language. Here's another example. In County of Riverside v. McLaughlin, the Supreme Court found the Fourth Amendment satisfied by a procedure that allowed an arrestee to go before a magistrate for a probable cause hearing within 2 days (or longer if the relevant period included a weekend or a holiday) of arrest. Justice Scalia dissented on originalist grounds. He said that the Fourth Amendment incorporated the common law rule, and that the common law in turn required the arresting officer to bring the arrestee before a magistrate "as soon as he reasonably can." Justice Scalia thought that at the most, that meant within 24 hours. Although he did not say so, it is clear that the data he used to arrive at that number related to modern technology: A delay of 48 hours to transport a prisoner by horse-drawn carriage from a remote location to a courthouse might have been reasonable in 1800 but would not be reasonable in 1991 (when McLaughlin was decided) because of technological advances in transportation and communication.

In the originalist account of both Justice Thomas's separate opinion in Northwest Austin Municip. Util. Dist. and Justice Scalia's dissent in McLaughlin, one would say that constant interpretation allows for changed results where factual circumstances change. So far so good, but then we get to the hard question: What if popular values have changed? Why can't that warrant a changed constitutional reading? Suppose that just about everybody thought that there was no denial of equal protection to forbid same-sex marriage in 1868 but that today people understand this to be unequal. If the meaning of a "reasonable" seizure under the Fourth Amendment depends on the technology available at the time the seizure occurs, why doesn't the meaning of "equal protection," or "cruel," or, for that matter, "reasonable," depend on the values commonly held at the time the issue arises?

Indeed, the question is especially difficult because in a case like Northwest Austin Municip. Util. Dist., the "fact" that is relevant to the need for § 5 of the Voting Rights Act is itself totally dependent on the values people hold: Where people are sufficiently racist (surely a value) to try to discriminate with respect to voting, Justice Thomas and the Court would allow the pre-clearance mechanism; such racism was widespread in the covered jurisdictions in 1966; it's not proven today. But if the value of racism counts as a fact relevant to how the meaning of the 10th and 15th Amendment change over time, why can't the value of acceptance of homosexuality count as a fact relevant to how the meaning of the 14th Amendment changes over time?

I do not raise these questions because I think they are unanswerable. I have little doubt that a committed originalist could argue that Justices Scalia and Thomas really are being originalist in their respective opinions in McLaughlin and Northwest Austin Municip Util. Dist., but that a decision like Roper v. Simmons, which finds that the juvenile death penalty has become cruel and unusual as a result of "the evolving standards of decency that mark the progress of a maturing society," is incompatible with originalism. What I would note here is that the various steps of the argument--including the fact/value distinction and its specification to make Northwest Austin Municip Util. Dist. a changed-fact case rather than a changed-value case--are all contestable and in no way commanded by anything we can clearly attribute to the text of the Constitution.

Posted by Mike Dorf