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51 posts from June 2015

06/30/2015

My Reactions to King v. Burwell
Mike Rappaport

I am a strong opponent of Obamacare.  But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed.  I felt much less politically invested in the issue and could more easily view it in an impartial manner.

Thus, I read with a relatively open mind the opinions by Chief Justice Roberts and Justice Scalia in the case.  Although I am a formalist (albeit a soft formalist), I do believe that conflicting provisions in a statute can render it ambiguous and that purpose is permissibly used to resolve an ambiguity – two key premises of Chief Justice Roberts’s opinion.  But in the end, I concluded that Justice Scalia had the better of the argument by a significant margin. 

In my view, Justice Scalia effectively rebutted the claim that the Affordable Care Act contained contradictory provisions.  The provisions limiting subsidies to exchanges established by the state were clear.  The other provisions emphasized by Roberts that appeared to contemplate subsidies in federal exchanges could be reconciled with the “established by the state” provision.  The drafting was hardly exemplary, but there was no clear contradiction, especially when one considered the important canon that one should try to reconcile two apparently contradictory provisions.

Since there was no contradiction, one would only depart from the clear statutory language if there was an absurdity.  For those who are less formalistic, one might find Roberts’s meaning of the statute if there was a much stronger evidence of purpose for that interpretation than for Scalia’s.  But neither standard justifies Robert’s decision.

Roberts claims that the purpose of preventing adverse selection (“death spirals”) justifies providing subsidies on federal exchanges, but as Scalia points out there is another plausible purpose – providing states with an incentive to establish exchanges.  And Congress in at least one other place actually prohibited charging applicants for insurance more based on their health condition under conditions similar to those that would govern insureds under federal exchanges.  Thus, Congress cannot be seen as eschewing such a result.

I have been debating some of my colleagues about this opinion, and their main argument is that Congress would not have wanted to allow “death spirals” merely to provide the states with an incentive.  But I don’t know how they know this.  Certainly, Jonathan Gruber didn’t think this.  Given that my colleagues support subsidies on federal exchanges, it is awfully convenient that they find this purpose argument compelling, which is the basic problem with modern versions of purposivism (as opposed to the narrower version that Hart & Sachs advocated in the Legal Process).

But it seems to me that there is an even stronger argument against their view.  Under the ACA, Congress provided that if a state chose not to accept the New Medicaid program (which vastly expanded the old Medicaid program), the state would lose all of its federal Medicaid funding.  That would have had enormous consequences for the poor people of that state.  Yet, Congress allowed that to happen, because it wanted the state to choose the New Medicaid program.  If Congress allowed that choice under the ACA, I do not know why one would doubt it would also allow the similar choice at issue in King.

(Cross posted at the Liberty Law Blog)

The Chief Justice's Dissent in the Arizona Legislature Case
Michael Ramsey

Chief Justice Roberts has been the target of much criticism for his majority opinion in King v. Burwell, but I think we should instead be celebrating his outstanding originalist dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission (arguing that "Legislature" means, well, the legislature.)  As he puts it:

The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.

Robert's affirmative case begins with dictionaries: 

The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted). The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.” Ante, at 3 (internal quotation marks omitted); see ante, at 27. Moreover, Dr. Johnson’s first example of the usage of “legislature” is this: “Without the concurrent consent of all three parts of the legislature, no law is or can be made.” 2 A Dictionary of the English Language (1st ed. 1755) (emphasis deleted). Johnson borrowed that sentence from Matthew Hale, who defined the “Three Parts of the Legislature” of England as the King and the two houses of Parliament. History of the Common Law of England 2 (1713). (The contrary notion that the people as a whole make the laws would have cost you your head in England in 1713.) Thus, even under the majority’s preferred definition, “the Legislature” referred to an institutional body of representatives, not the people at large.

Then he looks at other founding-era sources: 

Any ambiguity about the meaning of “the Legislature” is removed by other founding era sources. “[E]very state constitution from the Founding Era that used the term legislature defined it as a distinct multimember entity comprised of representatives.” Morley, The Intratextual Independent “Legislature” and the Elections Clause, 109 Nw. U. L. Rev. Online 131, 147, and n. 101 (2015) (citing eleven State Constitutions). The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed. 1961) (A. Hamilton) (describing “the State legislatures” as “select bodies of men”); id., No. 60, at 368 (contrasting “the State legislatures” with “the people”). Noah Webster’s heralded American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws.” 2 An American Dictionary of the English Language (1828). It continues, “The legislatures of most of the states in America . . . consist of two houses or branches.” Ibid. (emphasis deleted).

He next turns to other uses of "Legislature" in the Constitution:

The unambiguous meaning of “the Legislature” in the Elections Clause as a representative body is confirmed by other provisions of the Constitution that use the same term in the same way. When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself. Our precedents new and old have employed this structural method of interpretation to read the Constitution in the manner it was drafted and ratified—as a unified, coherent whole. See, e.g., NLRB v. Noel Canning, 573 U. S. ___, ___–___ (2014) (slip op., at 19–20); id., at ___ (SCALIA, J., concurring in judgment) (slip op., at 32); McCulloch v. Maryland, 4 Wheat. 316, 414–415 (1819); Martin v. Hunter’s Lessee, 1 Wheat. 304, 328–330 (1816); Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999). The Constitution includes seventeen provisions referring to a State’s “Legislature.” See Appendix, infra. [Ed.:  Yes, he includes an appendix listing every use of "Legislature" in the Constitution.] Every one of those references is consistent with the understanding of a legislature as a representative body. More importantly, many of them are only consistent with an institutional legislature—and flatly incompatible with the majority’s reading of “the Legislature” to refer to the people as a whole.

And some drafting history: 

The history of the Elections Clause further supports the conclusion that “the Legislature” is a representative body. The first known draft of the Clause to appear at the Constitutional Convention provided that “Each state shall prescribe the time and manner of holding elections.” Debates on the Federal Constitution 146 (J. Elliot ed. 1836). After revision by the Committee of Detail, the Clause included the important limitation at issue here: “The times and places, and the manner, of holding the elections of the members of each house, shall be prescribed by the legislature of each state; but their provisions concerning them may, at any time, be altered by the legislature of the United States.” Id., at 225 (emphasis added). The insertion of “the legislature” indicates that the Framers thought carefully about which entity within the State was to perform congressional districting. And the parallel between “the legislature of each state” and “the legislature of the United States” further suggests that they meant “the legislature” as a representative body.

As the majority explains, the debate over the ratification of the Elections Clause centered on its second part, which empowers Congress to “make or alter” regulations prescribed by “the Legislature” of a State. See ante, at 25–27. Importantly for our purposes, however, both sides in this debate “recognized the distinction between the state legislature and the people themselves.” Brown v. Secretary of State of Florida, 668 F. 3d 1271, 1275–1276, n. 4 (CA11 2012).  ... [going on to discuss specific evidence, with a cite to originalist scholar Rob Natelson].

And finally, he rejects the majority's appeal to purpose:

The majority contends that its counterintuitive reading of “the Legislature” is necessary to advance the “animating principle” of popular sovereignty. Ante, at 24. But the ratification of the Constitution was the ultimate act of popular sovereignty, and the people who ratified the Elections Clause did so knowing that it assigned authority to “the Legislature” as a representative body. The Elections Clause was not, as the majority suggests, an all-purpose “safeguard against manipulation of electoral rules by politicians.” Ante, at 26. Like most provisions of the Constitution, the Elections Clause reflected a compromise—a pragmatic recognition that the grand project of forging a Union required everyone to accept some things they did not like. See The Federalist No. 59, at 364 (describing the power allocated to state legislatures as “an evil which could not have been avoided”). This Court has no power to upset such a compromise simply because we now think that it should have been struck differently. ...

This is a strong an orignialist/textualist opinion as anyone should hope for or expect from any Justice.  (And Justice Scalia liked it so much he joined it even though he thought the legislature didn't have standing and so the Court shouldn't be deciding the case in the first place).

Of course, it's a dissent.  So as in the recess appointments case, the question is: should we view this as disappointing, because the textualist/originalist position got "only" four votes, or encouraging, because it got as many as four (!) votes?

(I prefer the latter, because I remember when the orignialist/textualist view would get one vote.)

In any event, the Chief Justice is likely to be on the Court for a long time, and if conservative commentators were thinking for the long term it would seem more constructive to celebrate this fine opinion than to complain about King v. Burwell.

RELATED: In the New York Times, Jeffrey Rosen: John Roberts, The Umpire in Chief.  From the conclusion:

It’s understandable that liberals and conservatives are disappointed with the chief justice for rejecting positions they deeply favor. But Chief Justice Roberts’s relatively consistent embrace of judicial deference to democratic decisions supports his statement during his confirmation hearings that judges should be like umpires calling “balls and strikes.” As he put it then: “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Although the chief justice’s statement was subsequently mocked, both the Affordable Care Act cases and the marriage equality case show that he meant what he said. Whether writing for the majority or in dissent, he believes that judges should set aside their policy views and generally uphold laws unless they clash with clear prohibitions in the Constitution. In the long term, if he continues to pursue this conception of the deferential role of the court, he may help liberals and conservatives more readily accept their Supreme Court defeats.

Agreed, but the Arizona Legislature case -- and the many others Rosen notes where Roberts has invalidated laws or executive actions -- show that the Chief has a fairly robust view of the "clear prohibitions in the Constitution," based in significant part on an originalist/textualist approach.

06/29/2015

A bit more on Obergefell's immutability claim
Chris Green

I didn't have time on Friday to put links into my SCOTUSblog piece given the "ASAP" deadline, but here is the American Psychological Association's brief on which Kennedy's opinion relies. Surveying the rest of the briefing turns up quite a lot of other material on the immutability issue--see herehere, here, and here for some of the briefs surveying scientific literature, here for anecdotal accounts to consider alongside the Court's use of the plaintiffs' personal histories, and here at 15-16 for a brief making the same point about the APA-cited Herek survey that I made in my essay--i.e., that it actually contradicts a claim of general immutability. 

The Court's cavalier approach to the relevant facts in Obergefell would have trouble, I think, passing muster under administrative-law standards like Overton Park (requiring "adequate explanation"), State Farm (agency must "examine the relevant data and articulate a satisfactory explanation for its action"), Fox ("a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy"), or this morning's Michigan v. EPA ("reasoned decisionmaking").  In another case this morning (the execution-protocol case, Glossip) the Court reiterated that "federal courts should not embroil themselves in ongoing scientific controversies beyond their expertise." That general principle would have served the Court well last week. For much more on the relevance of standards of knowledge to judicial review, of course, see here.

Randy Barnett: Appoint More Originalists to the Court
Michael Ramsey

Reflecting on last week's decisions, Randy Barnett (guest blogging at Instapundit) says for future appointments:

The key is a demonstrated commitment to following the original meaning of the Constitution, whether that leads to upholding or invalidating a “popularly-enacted” law. Avoid those who advocate “judicial deference,” “judicial restraint,” “judicial minimalism” or who condemn “judicial activism” or “legislating from the bench.” None of those catch phrases concern how to interpret the Constitution, and those who utter these largely empty homilies about judicial role are very likely to disappoint.

More from Professor Barnett here (rejecting Jeb Bush's call  for Justices committed to judicial restraint).

I agree, if the conservative concern with last week's decisions is that they don't reflect the rule of law.  As I've argued, originalism is a way (in my view about the only way) to have a rule of law as opposed to a rule of judges.  (To be sure, it does not guarantee a rule of law, for several reasons, but it offers the possibility of the rule of law).  And of course, done right it does not guarantee conservative results.

UPDATE:  Further thoughts from Professor Barnett: Constraint vs. Deference: Two possible meanings of ‘judicial restraint’.

But what does “judicial restraint” mean?  There are two quite different possibilities:

    1. Constraint: “Judicial restraint” could refer to confining oneself to following the meaning of the text of the Constitution (and of statutes) — by which is meant its original meaning — whether this leads to upholding or invalidating properly enacted statutes; or
    2. Deference: “Judicial restraint” could refer to deferring to the will of the majority as reflected in the acts of the more “democratic” branches — i.e. “unelected unaccountable” judges should avoid wherever possible thwarting the will of the people, by which is meant the political preferences of the majority of the electorate. The emphasis here is not on the correctness of constitutional analysis, but on judicial deference to majority will.

What is of utmost importance is that these are not the same thing.

And in conclusion:

In short, because of both the ambiguity of “judicial restraint” and its historical association with deference to legislative majorities, demanding “a proven record of judicial restraint” is very likely to lead to judges who disappoint conservatives and libertarians. Republicans should not be fooled again. And the only way to avoid being fooled again is to demand judges with a proven commitment to the original meaning of the text — by which I mean the whole text, not just the parts that lead to the results they like.

My further thoughts: The problem with judicial restraint (meaning simply deference to legislative majorities) as an interpretive philosophy is that it isn't an interpretive philosophy.  No one (except those who don't believe in judicial review at all -- and they are unlikely to be appointed to the Supreme Court) thinks the Court should always defer.  Rather, they think the Court should mostly defer, unless something points strongly the other way.  But what is that "something"?  Unless "judicial restraint" judges have some interpretive philosophy (such as originalism) informing their decisions, nothing tells them what can overcome the principle of restraint.  So, most likely, they will abandon restraint when intuitively there seems a moral imperative to do so -- that is, in the most important cases.  So paradoxically the advocate of restraint becomes unrestrained when it matters most.

To be clear, I'm not saying this always happens, just that it's a risk.  And there are very good restrained originalist judges, such as the Sixth Circuit's Jeffrey Sutton (who deferred in both the first ACA case and in the same-sex marriage case).  But I'm skeptical of an approach that says, I'll be restrained except when I think it's really important not to be.  And I think that's the way a lot of judges look at it.

06/28/2015

Edward Purcell: Democracy, the Constitution, and Legal Positivism in America
Michael Ramsey

Edward A. Purcell Jr. (New York Law School) has posted Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History (Florida Law Review, Vol. 66, No. 4, 2014) on SSRN.  Here is the abstract:     

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with opposing theories of democracy and constitutionalism. Positivist ideas subsequently became the instrument first of Progressives who criticized the “Lochner Court,” then of New Deal justices who preached “judicial restraint,” then of many critics of the Warren Court, and finally of the conservative originalists in the present day who broadly condemn “liberal judicial activism.” The Article shows that, as American politics changed over the years, so too did the alleged significance and practical uses of positivism for arguments about both democracy and constitutionalism. The Article concludes that positivism contributed — and is able to contribute — little to coherent normative theories of either democracy or constitutionalism but that it nonetheless has substantial practical value for both. Positivism’s emphasis on the social and behavioral realities that underlie the law highlights the need to constantly examine the extent to which the legal system honors a society’s democratic values and constitutional principles not just in words and slogans but in the actual operations and social consequences of its legal system.

Via Larry Solum at Legal Theory Blog, who comments

Highly recommended, but readers should be warned that Purcell's understanding of positivism is historical and practical and not conceptual or contemporary.  His understanding of the association between originalism and positivism simply does not hold for contemporary versions of legal positivism--which understands all law as "positive" in the sense that it is necessarily the case that legal content is determined by social facts, not moral facts.  Thus, even the most extreme forms of living constitutionalism (for example, a form that embraced the proposition that the Supreme Court may adopt amending constructions of the constitutional text) do not (and cannot) involve anything other than positive law, albeit law that is made by the Supreme Court.

06/27/2015

Shoba Sivaprasad Wadhia: The History of Prosecutorial Discretion in Immigration Law
Michael Ramsey

Shoba Sivaprasad Wadhia (Penn State Law) has posted The History of Prosecutorial Discretion in Immigration Law (American University Law Review, Vol. 64, 2015) on SSRN.  Here is the abstract:

This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014.

06/26/2015

"Oh, well, we know better."
Chris Green

My contribution to the SCOTUSblog symposium on Obergefell is now posted, with a title from Justice Kennedy's comment at oral argument. Most of the content will probably surprise few readers of this blog, but I do work in references to Toy Story 2 and Apocalypse Now, leaving Pride & Prejudice on the cutting room floor.

Statutory Originalism in King v. Burwell
Michael Ramsey

Without getting into the merits of the majority opinion in King v. Burwell, I just want to note that methodologically it is both textualist and originalist.  The key sections are Parts II.A. and B.  In Part II.A., the majority looks closely at various textual provisions which (it says) raise doubt about whether the key phrase "an exchange established by a state" really means what it appears to mean.  Then, after concluding (mainly on the basis of the text) that the key phrase is ambiguous, Part II.B turns to the majority's understanding of the intent of the enacting Congress in order to resolve the ambiguity.

Here is some of the key language:

Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. See New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 419–420 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”).

As discussed above, Congress based the Affordable Care Act on three major reforms: first, the guaranteed issue and community rating requirements; second, a requirement that individuals maintain health insurance coverage or make a payment to the IRS; and third, the tax credits for individuals with household incomes between 100 percent and 400 percent of the federal poverty line. In a State that establishes its own Exchange, these three reforms work together to expand insurance coverage. …

Under petitioners’ reading, however, the Act would operate quite differently in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way. …

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well.

This is originalism: it is looking at the intent of the enactors to reach a conclusion about the original meaning of the enactment.  (Whether it is persuasive originalism I leave for another day).

06/25/2015

Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System
Mike Rappaport

In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view.  Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution.

The problem with this argument is that it lacks support.  The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations.  The question for departmentalists is to show that the Constitution actually adopted departmentalism.

Here is what I regard as the basic textual problem with arguing that the new system established departmentalism: the Constitution typically used terms that had their historical or common law meanings.  Thus, when the Constitution used the term “judicial power” or “executive power” it typically meant those terms to have their traditional meanings.

That does not mean that the Constitution retained the entire traditional system.  It clearly established a new system in certain ways, but it did so by changing the rules governing these entities, not by using the traditional terms in a new way.

Let me provide an example.  The Constitution diminished the powers of the President from those of the King.  But it did not do this simply assuming that the term “executive power” would have a new meaning.  Instead, it vested the executive power in the President, but then took away or constrained various powers that the King had.  So it gave the Congress the King’s power to declare war.  And it constrained the King’s unilateral power to make executive appointments by giving the President the power to appoint officers only with the consent of the Senate.  It did these things expressly rather than by assuming that readers would understand that the system had been changed.

Thus, if departmentalism were to be adopted by the Constitution, it would occur through provisions in the Constitution that would adopt it.  But I am not aware of any such provisions.

That the Constitution is the supreme law of the land and that each branch is required to follow it do not do the trick.  That the Constitution is the supreme law does not prevent courts from the obligation to follow judicial precedent if, as I have argued, precedent is either required by the Constitution or if the Constitution treats it as a matter of federal common law.  Similarly, that the Constitution requires each branch to follow it does not prevent the other branches from also having to follow judicial precedent if, as I have suggested might be true, such an obligation is either required by the Constitution or it the Constitution treats it as a matter of federal common law.

(Cross posted at the Liberty Law Blog)

Originalism and Sons of Confederate Veterans
Michael Ramsey

Candid originalists acknowledge that originalism can't give a clear answer to every case.  One that seems especially difficult: last week's Supreme Court decision in Walker v. Sons of Confederate Veterans.  The question is whether Texas can offer its citizens the opportunity (for a fee) to design their own license plates, but reserve the ability to veto designs it finds offensive (in this case, a design incorporating the confederate flag).  Justice Breyer's answer ("yes," for a 5-4 Court) has come in for some sharp criticism from across the political spectrum -- see here from Josh Blackman ["not only wrong, but dangerous"]; here from Michael Dorf ["so badly reasoned that it cannot be taken seriously"]; here from Ed Whelan ["Justice Alito's dissent strikes me as devastating"]; here from Calvin Massey ["The Court got it badly wrong."]).

I doubt originalism has anything useful to say on this issue.  Textually, the question is whether this restriction "abridg[es] the freedom of speech."  But how to assess that?  I can't think of any practice in the eighteenth or nineteenth century that's reasonably analogous.  That being so, I can't see how to answer the textual question.  We can't make any progress without knowing whether analogous practices were understood to violate the freedom of speech.  The question (from an originalist standpoint) isn't whether the practice abridges the freedom of speech in the abstract, but whether it abridges the eighteenth/nineteenth century meaning of freedom of speech.  And if there's no analogous historical practice, there's no way to assess that question.

A couple of options are then available.  We could say that this is a situation in which the original meaning "runs out" and leaves us in the "construction zone" where (apparently) judges create their own answers.  (And if that's the case, I'm not sure on what basis we can criticize judges for picking one result where we would have picked another).

Or we could impose a default rule.  For example, we could say (as I assume John McGinnis would say) that since the government action is not clearly contrary to a constitutional rule, it should be upheld.  But also, perhaps we could say that, since the First Amendment protects speech and the Texas rule appears to limit speech, the Texas rule should be invalid unless Texas can show it's allowed by the Constitution's original meaning (which Texas can't).  Thus we would face the question of how to pick among default rules.

John McGinnis would further say, I think, that originalism provides the default rule, because the presumption of constitutionality was part of the way people understood the courts' judicial power at the time.  Perhaps that's right, but it depends on proof of a common understanding that may not be possible.  And if the common understanding on this point is ambiguous or not fully developed, then what?  We would need a default rule for picking the default rule.

I don't think any of this amounts to an argument against originalism.  A common argument against originalism is that it can't give a clear answer to every question.  The response is, of course it can't.  That's not an argument against using originalism where it does give an answer.  But I'm inclined to think Walker is a case where it doesn't (and one may as well admit it).