[Editor's note: Garrett Epps, Professor of Law at the University of Baltimore, asked that I post the following response to this post in which I criticized his reaction to United States v. Jones (the GPS tracking case). I am always happy to post responses to anything we write (just email me). That goes especially for strongly worded resposes, well-designed to stir things up. So, here's Professor Epps (I do have a few thoughts in response to his response, but for now the stage is his). --Michael Ramsey]
Michael Ramsey accuses me of “anti-originalism” because of an irreverent column on theatlantic.com about Justice Scalia’s opinion in United States v. Jones.
I wrote:
Justice Scalia's opinion . . . focused like a laser on the least interesting or significant aspect of a fascinating case. Writing for five justices, he held that the government loses not because tracking people with a GPS is so intrusive that it should only be done with a warrant -- that issue is left undecided -- but because the police officers physically put something on the defendant's car. Justice Samuel Alito, whose concurrence was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, retorted: “the Court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation).” The actual physical act of attaching a tiny transmitter is so minor that it would not, under today's law, be regarded as a trespass, Alito said. . . .
Scalia's opinion for the Court tried to deal with global satellite and massive computer technology with "originalist" methods: what would the Founding Fathers have thought if a colonial-era sheriff had tracked a bad guy by hiding a constable in his carriage. Seriously, grandpa? Alito retorted. “This would have required either a gigantic coach, a very tiny constable, or both -- not to mention a constable with incredible fortitude and patience.”
On the basis of the above, Ramsey accuses me, without limitation, of hypocrisy, heresy, and—most cuttingly—of “living constitutionalism”:
[A]ssuming Scalia is right about the 18th-century rule, his originalist point is that that’s the rule we have, until we change it in the prescribed way. Professor Epps says this is the wrong approach. But what’s his alternative? I assume it’s to have judges decide for themselves what the best modern approach should be, taking into account modern circumstances and sensibilities (which basically means doing what they think best). So really all Professor Epps is saying is that we should be ruled by modern judges, rather than by the framers’ rules. That’s the fundamental divide between originalists and advocates of a living Constitution. If that is what Professor Epps is saying, here’s why I’m surprised to hear him say it: Not long ago he was arguing that children of illegal aliens, if born in the United States, are constitutionally entitled to U.S. citizenship by the first sentence of the Fourteenth Amendment. (I agree.) But that is a claim that we should be governed by rules laid down in the past by people who didn’t understand modern conditions. We could instead say that modern judges should be free to decide the birthright citizenship issue in light of modern circumstances (that is, however they think best). The framers of the Fourteenth Amendment didn’t know about mass illegal immigration, just as the framers of the Fourth Amendment didn’t know about GPS tracking. We can either apply the rules they wrote to new situations, or we can make up our own rules. Whatever the answer to that dilemma, it should apply across the board. Professor Epps wants to apply the framers’ rule in one situation but make fun of Scalia for doing it another.
Remarkable enough, there are five separate fallacies in this short passage. First, it begs the question. (Of course, if we assume Scalia is correct, I must be wrong to question him.) Next, it distorts what I said in the Jones column. Third, it repeats the silly libel that anyone who isn’t an orthodox originalist believes only in judges’ discretion. Fourth, it misrepresents my Citizenship Clause scholarship. Finally, it makes a frankly insupportable claim about originalism—that it must “apply across the board” or be discarded in toto.
Remarkably, the argument as a whole is even more deeply fallacious than the sum of its parts. In both cases, an “originalist” has proposed a rule to replace existing precedent. In both cases, I assert that the new rule is the product of bad originalism and offer support for the existing rule. The inconsistency between my two arguments is thus imaginary.
Ramsey assumes that Scalia’s rule is clearly correct, but that nonetheless I would prefer to “have judges decide for themselves what the best modern approach should be, taking into account modern circumstances and sensibilities (which basically means doing what they think best).” I don’t assume Scalia’s rule is right; in fact, I think it’s wrong. It’s at best a strained inference from 18th Century tort law. It has no clear applicability to the text of the Fourth Amendment, to the history of its adoption, or to the issue of computerized satellite tracking. Positing it as the “original public meaning” of the Fourth Amendment requires a leap I find unconvincing.
My alternative ground of decision, in addition, is not “have judges decide for themselves what the best modern approach should be.” It is, instead, to apply the Court’s own caselaw: Katz v. United States and its progeny. The “rule we have” is Katz, not Scalia’s fresh interpretation of English tort doctrines. Justice Samuel Alito takes Scalia to task for attempting to replace the Katz standard with his “originalist” “rule” when Katz is more clearly relevant and useful, and I agree.
To expect judges to follow stare decisis is hardly to ask them to “do[] what they think best”; it is to ask them to do their jobs. To say that supporting stare decisis means believing only in “doing what [judges] think best” is a false dichotomy and, in 2012, a tired one.
Now, as for my alleged false claim of originalist virtue: in my article, “The Citizenship Clause: A ‘Legislative History,’” I suggest that we should apply the text of Section One of the Fourteenth Amendment; I repeat that argument in the online debate with Professor Edward Erler that Ramsey cites. The amendment’s text has a fairly straightforward natural-language meaning, one which, as far as one can tell, has changed little since its adoption in 1868. This argument from text shares quite a few presuppositions with those of most originalists. But Ramsey has already claimed that, since I don’t accept Justice Scalia’s strained application of Lord Camden's 1765 opinion in Entick v. Carrington, I simply must believe that nothing in the Constitution’s text governs anything in the present. Constitutional law permits two and only two alternative views.
That’s silly.
A careful reader of my argument will find it more subtle than Ramsey does. The text of Section One and the caselaw applying it make it settled law that all children born in the United States (other than children of diplomats) are citizens by birth. In the past 20 years, a new interpretation has arisen. Its proponents claim that the “original intent” of the Fourteenth Amendment was that the children of those present in the U.S. illegally would not be citizens by birth. They cite historical materials to demonstrate that the Framers had that meaning for the term “subject to the jurisdiction” in mind. In the online debate, I write that the proponent of that meaning “has the burden of proving the validity of this special technical interpretation.” My law-review article makes the same point. My thesis is that those claiming originalist warrant for their interpretation have not proved their case:
[W]e are faced with a claim by [proponents of the restrictive reading] that . . . an unclear reading was the Framers’ “clear intent.” The question in the first instance is not what the “original intent” was, but rather whether those who make “originalist” claims to have deduced it have borne their burden of proof.
The evidence I cite in the article doesn’t “prove” that the Framers would have thought anything about our current situation; but it falsifies (as close to conclusively as can be done in our inexact field) the claim that the original “intent” was what the proponents claim. The argument sounds in fidelity to relatively clear text, which is much different from Scalia’s claim of fidelity to general notions of 18th-century law. However, as noted above, my two arguments are the same: where a present rule exists, originalists must carry a burden of proof to displace it; flawed originalist arguments cannot do so.
Finally, Ramsey asserts, “We can either apply the rules they wrote to new situations, or we can make up our own rules. Whatever the answer to that dilemma, it should apply across the board.” I agree that we should “apply the rules they wrote”—that is why I resist allowing the Clause’s text to be replaced by faux originalist interpretation. I do not believe that Scalia’s “rule” is “the rule[] they wrote” in the Fourth Amendment, however, and so I don’t want to apply it.
Note that Ramsey’s statement assumes that a valid methodology can answer all our constitutional questions, from the proper minimum age of a President to the existence vel non of a right of marital privacy. That dog, as we say where I grew up, don’t hunt. In law, as in life, we will never find the Philosopher’s Stone.
In arguing and deciding cases, lawyers and judges properly draw on many sources—among them text, history, structure, principle, caselaw, and practicality. Some of these are dear to originalists—the actual debates by framers and ratifiers, the legal sources upon which they drew, the public discussions that place concepts in contemporaneous contexts, the intellectual and political history to which a given constitutional provision is a response. I find those materials fascinating and valuable, and as an academic I am proud to associate with originalists of many stripes, including Ramsey.
But originalist scholarship should not require a loyalty oath. It is absurd to claim that originalist methods are capable of resolving all our questions “across the board.” Unless originalism is magic, it is going to fail in some cases. United States v. Jones is such a case.
Perhaps some argument from 18th Century law and philosophy would clarify the issue of massive warrantless computerized satellite surveillance. But if so, Justice Scalia didn’t produce it in Jones. In fact, my article does not actually so much “make fun of Scalia” as report (admittedly with wry pleasure) that his junior colleague, Samuel Alito, openly mocks his opinion.
There is a difference between good originalism and bad originalism. Scalia’s opinion was bad originalism. Michael Ramsey should be addressing its failures; they are far more significant than mine.
