Putting the Text in Originalism: Three Odd Amendments
by Michael C. Dorf
Regular readers of this blog and/or my scholarship know that I am a longtime skeptic of constitutional originalism. I've expressed my skepticism in numerous places, but you can find a fairly concise explanation at pages 696-701 of this article in the Catholic Law Review, which reproduces remarks I delivered at a 2019 Federalist Society panel with Professors Sai Prakash and Rick Pildes, as well as Judge Thomas Hardiman and then-Judge (now-Justice) Amy Coney Barrett. Here's an even shorter version:
I regard "old" originalism, which focused on the intentions and expectations of the framers and ratifiers, as unjustifiable in principle; so do most self-described originalists. I regard "new" originalism, which focuses on the constitutional text's original public meaning, as a substantial improvement in theory but extremely under-determinate in the kinds of contested cases in which it is typically invoked, and thus ultimately unhelpful. If jurists who call themselves originalists believe that their linguistic and historical analysis plays a large role in how they decide contested cases, they are fooling themselves. Appellate and especially Supreme Court litigation has a selection bias for cases in which authoritative sources of law do not uniquely determine the outcome, making other factors--especially each judge's values and ideology--critical.
Indeed, it's not even clear to me how much thoughtful originalists really are fooling themselves. For example, during the colloquy on the panel I mentioned above, then-Judge Barrett said both in her opening remarks and in conversation with me (at p. 709) that originalism as she understands it is not designed to constrain judges and doesn't especially constrain judges, or doesn't do so to a substantially greater extent than other approaches to constitutional interpretation and construction.
I confess that if originalists think that originalism provides no further constraint than other interpretive approaches, then I don't understand what originalism is. Accordingly, I heard and read then-Judge Barrett to be saying that treating original meaning as fixed and, where determinate, dispositive, provides a bit more constraint than interpretation that proceeds without doing so. I'm not sure even that very modest claim is accurate in practice, but I agree that it could be true in principle. Historical and/or lexicographical investigations will sometimes yield a more determinate meaning than the face of the text indicates. In any event, although I'm not an originalist, I am a student of history, and even we non-originalists believe that original meaning plays an important role in constitutional interpretation.
We sometimes describe the original understanding as a useful "starting point," but that's not quite right. Surely the starting point is the constitutional text. And that leads me to my main point for the day. The courts--including self-described originalists--treat three odd-numbered constitutional amendments in ways that cast doubt on their commitment to following the text's meaning wherever it leads.
My illustrations were inspired by a presentation I attended on Friday of last week, when Professor Mila Sohoni discussed her paper titled The Puzzle of Procedural Originalism in the Cornell faculty workshop. Professor Sohoni shared a draft of the paper with the workshop participants and lists it on her faculty page, but I couldn't find a version online, so I'll just say a word about it. The paper makes the observation that the core constitutional doctrines covered in the civil procedure course tend to proceed in disregard of the original understanding of the constitutional text. Professor Sohoni argues that the original understanding would, if faithfully applied, lead to results that conservatives would dislike on ideological grounds. Accordingly, she suggests that if and when the Supreme Court gets around to considering original meaning in these areas--the scope of diversity jurisdiction and personal jurisdiction are her key illustrations--that will be a useful test of the bona fides of the justices: will they go with original meaning or their ideological priors?
I found Professor Sohoni's exegesis of the history with respect to the specific doctrines very illuminating. The jurisprudential point got me thinking about other tests. Here I'll say a word about three odd-numbered amendments, which I'll take in reverse order.
Eleventh Amendment: By its terms, the Eleventh Amendment bars suits "against one of the United States by citizens of another state," but in 1890 in Hans v. Louisiana, the Supreme Court construed the spirit of the amendment as restoring a background set of assumptions about state sovereign immumity held by the framers and ratifiers of the original Constitution. Hans, in its focus on what the framers and ratifiers intended and expected quite apart from the text they enacted, was at best an exercise in "old" originalism. It could be retained today on stare decisis grounds, but instead, the Rehnquist and Roberts Courts--with the enthusiastic backing of the most originalist justices--have extended it. If one were seriously interested in the original meaning of the text, one would take note of how the text of the Eleventh Amendment mirrors the text of Article III of the original Constitution. Doing so--as Justice Brennan did in a dissent in a 1985 case--seems to lead to the conclusion that the Eleventh Amendment was meant to limit the scope of diversity jurisdiction but not (as in Hans and more recent cases) federal question jurisdiction. So that's one test failed.
Ninth Amendment: Nothing gets conservative justices more riled up than the practice of recognizing so-called "unenumerated" rights. Consider a typical statement from Justice Scalia. He wrote (in an opinion joined by fellow supposed originalist Justice Thomas) that abortion "is not constitutionally protected-because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." Point (2) is either not originalist (insofar as it allows that slowly evolving practices might have changed something) or at best "old" originalism (insofar as traditions would reflect intentions and expectations if not necessarily original public meaning). But let's focus now on point (1).
It's true that the Constitution says nothing explicit about abortion, but the Ninth Amendment explicitly says that the lack of explicit mention of a right doesn't rule out the right's existence: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Originalists do not so much try to apply this fairly straightforward admonition to recognize at least some unenumerated rights as to evade it. Judge Bork famously said it should be treated as though the Constitution contains an illegible ink blot. Scalia said he complies with the Ninth Amendment by acknowledging that there are other sources of rights beyond those in the Bill of Rights--without explaining why, if that's so, the Ninth Amendment is included in the Bill of Rights. Nor does he explain how an admonition against literal disparagement (e.g., judges can't say "there should be no right to same-sex marriage in a state statute" because that would "disparage" rights protected by another source) would be consistent with the First Amendment. Are there reasons why judges should be cautious in recognizing unenumerated rights? Of course. But the textual exegesis that originalists give of the Ninth Amendment is impossible to take seriously.
Seventh Amendment: The Fourth Amendment refers to "unreasonable searches and seizures," and the Eighth Amendment refers to "cruel and unusual punishments." A later generation might regard as unreasonable, cruel, or unusual what an earlier generation considered reasonable, humane, and common. Thus, these provisions--and others--could be fairly read as allowing evolution. That's consistent in principle with original-public-meaning originalism. The meaning doesn't change; the application does. But original-public-meaning originalism at this level of generality is indistinguishable from living Constitutionalism.
Moreover, there is a still better textual ground for treating nearly all of the Constitution as susceptible to evolution in application. Where the framers wanted to fix application, they knew how to do so. The Seventh Amendment says the right to a civil jury trial "shall be preserved." To be sure, even so, the Supreme Court's cases allow procedural innovations. Preserved apparently does not mean preserved exactly as it was in every respect. The cases say something more like preserved in its essentials. But whether the relevant case law faithfully construes the Seventh Amendment is not my main concern right now. My point is that someone who wishes to discern the original public meaning of the other provisions of the Bill of Rights (and the Constitution more broadly) might take note of the absence of the preservation admonition in those other provisions. It doesn't inevitably follow that those other provisions couldn't be construed using a preservationist rather than an evolutionary approach, but that is at least a fair inference.
Despite all of the foregoing, a practitioner of constitutional law must now play the originalism game because the courts have been stacked with jurists who call themselves originalists. Indeed, even liberal jurists now play the game, as now-Judge/Justice-to-be Jackson illustrated last month. Accordingly, for what I expect to be most if not all of the rest of my career as a legal scholar, I anticipate efforts by most lawyers and jurists to disguise more and more normative and policy debates as debates over original public meaning. That many of the people wearing the originalism costumes themselves don't realize they're only playing dress-up doesn't change the fact that that's what they're doing.