Originalism, Deference, and Judicial Hypocrisy
By Eric Segall
I am currently working on a long law review article showing that the original meaning of judicial review is nothing like the practice of judicial review today. One can believe in originalism or one can believe in non-deferential, strong judicial review, but one cannot believe in both (at least with intellectual consistency). This blog post is a short summary of that thesis with a lot more to come.
Originalist Professors Michael Rappaport and John McGinnis have long argued in essays, articles, and a book that judges today should use only those interpretive methods that were available to judges at the founding to decide constitutional law cases. The early originalists such as Robert Bork and Raoul Berger would have certainly agreed with that thesis. Professors Will Baude and Steve Sachs, who maintain that our law today is the original law until formally changed, would likely agree with Rappaport and McGinnis. And, most New Originalists, who disagree among themselves about many aspects of constitutional interpretation, would nevertheless likely accept that judges should conduct both constitutional interpretation and constitutional construction in ways similar to how judges acted around the time of the ratification of the Constitution. In essence, Originalists today believe judges should look to relevant ratification periods to determine how today’s judges should decide cases (leaving aside the issue of following non-originalist case law).
There are now five self-avowed Originalists on the Supreme Court of the United States and countless others on the lower courts. There is little doubt that lawyers are going to have to make originalist arguments to prevail in major constitutional litigation for the foreseeable future. For better or worse (mostly worse), it appears originalism is here to stay.
If originalism is our law, then judges have a duty of substantial deference in all cases not directly affecting federal courts themselves, such as issues concerning juries and federal jurisdiction. Even at the founding, judges exercised relatively strong judicial review in cases where the judicial power or jury rights were directly at issue.
On the other hand, in all other cases, overwhelming evidence suggests that originalist judges should rarely overturn state or federal laws. What that means for today is whether the case involves affirmative action, free speech, abortion, gun rights, separation of powers, federalism, or most other constitutional questions, judges should only invalidate state or federal laws upon a clear showing by the plaintiff of constitutional error and an opinion that makes extremely transparent the nature of that error.
This test is not the same as one that suggests judges should only strike down laws when no rational person could deem the law constitutional, but it does require judges to demonstrate an obvious inconsistency between a statute and the Constitution. This form of deferential judicial review was assumed by most of our founding generation and the judges and politicians who discussed the issue during the ratification period. Additionally, the Reconstruction Amendments were not meant to change the nature of the burden judges were supposed to shoulder when exercising judicial review.
For example, Originalist Professor Chris Green has written the following: "Judicial review is the exercise of an extremely important, weighty, and not-easily-corrected power. Courts may refuse to enforce statutes, but only when they conflict with state or federal constitutions, and clearly so."
Similarly, Originalist Professor John McGinnis has said the following: "Those who framed the Constitution and rendered justice in the early Republic did understand judicial duty as requiring a clear incompatibility between the Constitution and a statute before displacing the latter by the former."
These modern-day Originalists are correct that the founding fathers believed that judges would exercise judicial review modestly, sparingly, and only after trying every reasonable way possible to avoid declaring state and federal laws invalid. I can't provide that evidence in this blog post, but the most obvious founding-era statement of this idea can be found in one of the most important discussions of judicial review during that time period.
Alexander Hamilton in Federalist No. 78, responding to a critic of ratification who believed that the Supreme Court would be too strong, said that judges would not strike down laws unless they were at an "irreconcilable variance" or against the "manifest tenor" of the Constitution. Both of those phrases were meant by Hamilton to suggest strong judicial deference.
In today’s world, however, Originalist judges do not exercise this kind of deference. Over the last few years, Originalist Supreme Court Justices and Originalist lower court judges have overturned both state and federal laws without fulfilling their duty of clarity to show that the statute or practice at issue clearly violated the United States Constitution. Just this last term, the Court overturned state practices in two religion cases, one involving a praying coach who was fired by his school, and one dealing with aid to religious schools in a state that did not want to provide that aid, without any discussion of the original meaning of the free exercise clause or any showing of clear error. In my article, I will show the Court today regularly exercises strong and aggressive judicial review, not the deferential kind that originalism requires.
Today’s Originalist judges want to use text and history to evaluate a law’s meaning and/or its application to the facts at issue but discard the overarching originalist premise of judicial review-that it be modest, rare, and only exercised upon a showing of clear error.
In other words, Originalist judges aren't really originalist because truly adhering to the original nature of judicial review would not allow them to as freely impose their personal values on the rest of us, and government officials do not like to give up their power. That hypocrisy is currently the coin of the realm of so-called originalist judges and justices.