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39 posts from February 2017


A Comment on Q & A with Judge Gorsuch
Andrew Hyman

Mike Ramsey suggests the following answer (to a question suggested by Jeffrey Toobin) during upcoming confirmation hearings for Judge Gorsuch:

Q. Do you believe that the Constitution includes a right to privacy?

A.  As to the right of privacy, regardless of its basis in the text, the Court has recognized it on multiple occasions (as Justice Scalia himself did).  How far it extends is of course another matter, and that remains unsettled.

That's a bit too wishy-washy for my taste.  Sure, various aspects of privacy are protected to some extent by the Bill of Rights, such as the Fourth Amendment requiring probable cause to get a search warrant.  But there's no general right of privacy in the Constitution, and Senators ought to propose a constitutional amendment if they want to put one there, instead of trying to put judges on the Court who are willing to read things into the Constitution that are not there.  

Personally, I liked Judge Bork's answer to a similar question:

A. "Privacy to do what senator?  You know, privacy to use cocaine in private?  Privacy of businessmen to fix prices in a hotel room?"

That was a bit blunt in 1987, when Republicans held only 45 seats, but times have changed.  In 2013, Justice Scalia was much blunter, characterizing the Warren Court's privacy jurisprudence by saying "there’s a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage".  And in 2016, Scalia criticized "the judge-made theory of 'substantive due process' which guarantees certain fundamental rights like privacy" and called that theory "utterly idiotic."  Again, I think Scalia was pretty much on target.   Similar straightforward answers from Judge Gorsuch would be refreshing and accurate.  

I also note that Congress already has plenty of power to bar states from violating general privacy rights for certain types of people, and the courts could then extend those statutory rights to other people using the Equal Protection Clause. I discussed this basic concept here at this blog.

Josh Blackman on Statutory Originalism
Michael Ramsey

At Josh Blackman's Blog: Statutory Originalism.  From the introduction:

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. ...

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”  ...

I think it noteworthy that, even as many people deride constitutional originalism, statutory originalism is not especially controversial.  Yet, as Scalia and Garner made clear in Reading Law,  they are essentially the same enterprise.


Some Answers for Jeffrey Toobin
Michael Ramsey

At The New Yorker, Jeffrey Toobin poses six questions Senators should ask Judge Gorsuch, most of them framed as supposedly "gotcha" questions for originalists.  I'm sure Judge Gorsuch could do much better, but here are my suggested answers (Toobin's commentary is omitted here but the answers sometimes respond to it; also in the spirit of confirmation hearings I will not comment on cases that might come before the Court, as Judge Gorsuch surely would not):

1.  During the campaign, President Trump repeatedly promised to nominate pro-life justices to the Supreme Court. Are you pro-life?

A:  Textualist originalists seek the original meaning of the Constitution's text (with due regard to precedent).  What they think about the underlying merits of a challenged law should be irrelevant to their decision.  So it doesn't matter whether an originalist candidate is pro-life (or pro-death penalty, or pro-gun control, or pro- any other policy that might come to the Court).  Indeed, an originalist judge might be particularly solicitous of the constitutionality of a law that person disfavored, or vice-versa, to avoid the danger that a policy preference might influence the outcome.  In contrast, most forms of nonoriginalism depend to some extent on the policy assessment of the particular judge (so this might be a fair question to nonoriginalists).

2.  Like Justice Antonin Scalia, you’ve described yourself (and been described) as a textualist and an originalist. The text of the Constitution does not directly refer to a right to privacy. Do you believe that the Constitution includes a right to privacy?  [Note: in the commentary, Toobin says this question "puts textualists on the spot"].

A:  A commitment to textualism (and originalism) does not entail a rejection of precedent.  Justice Scalia said he would not disturb precedents "woven into the fabric of American law," and he frequently followed and applied precedents that do not seem justified by the Constitution's original meaning.   People who are unduly alarmed by originalism as a practical method of judging often overlook this point.  As to the right of privacy, regardless of its basis in the text, the Court has recognized it on multiple occasions (as Justice Scalia himself did).  How far it extends is of course another matter, and that remains unsettled.

3. The authors of the Fourteenth Amendment, which guarantees the equal protection of the law and was adopted in 1868, almost certainly believed that racially segregated schools were permissible. Does that mean that Brown v. Board of Education was incorrectly decided? If Brown was correct, doesn’t that suggest that the meaning of the Constitution can change over time?

A:  As Justice Scalia explained, ultimately what matters for textualist originalists is the text's original meaning, not what the framers thought about it.  Their thoughts may be good evidence of what it means. in cases of ambiguity.  But where the text is clear, a subjective intent cannot override it.  In the case of segregation, Justice Harlan eloquently explained in dissent in Plessy v. Ferguson (1896) why it was banned by the plain language of the Fourteenth Amendment.  Thus, even if it is true that the "authors of the Fourteenth Amendment" thought the Amendment allowed segregation (and, as an aside, that is by no means clearly true), the Amendment nonetheless means what its says.  Thus Justice Scalia concluded that Plessy was wrong (and Brown was correct) as an original matter -- a view shared by many leading originalist scholars including Michael McConnell, Michael Paulsen and Steven Calabresi.  

4. Is money speech? Can Congress or the states regulate campaign expenditures at all? Congress has banned corporations from contributing directly to political campaigns for a century. Is that ban constitutional?

A:  Money is not speech but restricting the expenditure of money to circulate a message is a direct impairment of the ability to speak.  This does not seem controversial.  Presumably no one would say that Congress can prohibit a person from spending money on ink, paper or pens to write a letter protesting government action.  Presumably no one would say that Congress can prohibit a group of people from spending money to print a newspaper.  Nothing suggests that these restrictions would have been thought constitutional in the founding era.  The scope of this principle is more difficult, however.  Restrictions on contributions to a political campaign (which might then be used by the candidate to speak) are less obviously an infringement of speech, and the Court has said they are subject to reasonable regulation.

5. Do religious people have to follow laws that violate their consciences? Do they have to pay taxes? Do their children have to go to school? How do you decide which laws they can ignore, and which ones they are required to follow?

 A:  Here it is important to distinguish between constitutional requirements and statutory requirements.  In Employment Division v. Smith, the Court, in an opinion written by Justice Scalia, held that religious people must follow generally applicable laws (that is, ones that do not single out religion) even if those laws violate their consciences.  While that decision has been criticized on originalist grounds, it is now well-entrenched in precedent. So as a constitutional matter, the answer is "yes".   After the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA), to partially overrule Smith.  The RFRA says that in some circumstances religious people do not have to follow federal laws that violate their consciences.  The statute sets out the circumstances, although the statutory test is a little unclear; recent controversial decisions by the Court have been an interpretation of the statute.  If Congress thinks the Court has interpreted the statute incorrectly, it can amend the statute to clarify.

6. We all know that when people arrive at our borders, they give up certain rights. For example, they certainly give up the right to protest about searches of their luggage. But do visitors give up all their rights, like the right to equal protection of the laws? Can we ban all black people from coming to the United States? All Jews? All Muslims?

A:  U.S. citizens have an unqualified right to enter the country under Supreme Court precedent and the Constitution's original meaning.  People who already have been approved to enter have a right to enter subject to losing that right based on individual circumstances, in accordance with due process.  The issue is more difficult for non-citizens who have not been approved to enter.  The Supreme Court has held that Congress' power to exclude aliens is "plenary" and that Congress can indeed exclude based on racial classifications (in the Chinese Exclusion case in the late nineteenth century).  However, the Chinese Exclusion case was not an originalist opinion and it's doubtful if it is a precedent that should be respected.

[As my answers suggest, these questions are not the "gotchas" Toobin likely thinks they are.  They're good questions, though, in that they allow a nominee to explain why originalism is not as scary an idea as many people -- Toobin included -- like to suggest].

 (Via Howard Bashman at How Appealing, and also Mark Pulliam).


Randy Barnett on Richard Lempert on Originalism (with an Added Comment)
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Out of touch law professor criticizes Judge Gorsuch and “originalism”.  It begins:

The Brookings Institution has published a shockingly ignorant critique of Supreme Court nomineee Neil Gorsuch’s commitment to originalism, entitled Is Neil Gorsuch an “Originalist”? Impossible. I use the term “ignorant” advisedly as the author Richard O. Lempert, the Eric Stein Distinguished University Professor of Law and Sociology, emeritus, University of Michigan, is apparently unaware of–and uninformed by–the past 25 years or more of originalist theory, methodology and practice. Originalists actually listened to the critique of originalism made in the 1980s and adjusted their position accordingly. (The term “originalist” was actually coined in 1980 by Paul Brest in a famous critique, The Misconceived Quest for Original Understanding.)


[I]f Professor Lempert’s critique of originalism is what we have in store when the Senate Judiciary Committee hearings commence on March 2oth, it is useful to see how far his criticisms are from his target. .;. [extensive criticism follows].

In addition to Professor Barnett's well-founded criticisms, another move in the essay annoys me: Professor Lempert's central claim is that the original intent cannot be found, but he typically proceeds by rhetorical questions or conclusory statements, without demonstrating that an original meaning is actually unknowable.  For example, he writes:

For the most part, however, we cannot know what the Framers intended. Even if it is clear how the Framers intended the Constitution to be applied to a dispute they could anticipate, there is no way of knowing how they would have applied it to a dispute they could not even dream of. For example, the Constitution gives Congress, not the Executive, the sole power to declare war, but we managed to fight wars in Korea, Vietnam, Afghanistan and Iraq without any formal Congressional declaration. In extending the power to declare war only to Congress, did the Framers intend to provide a constitutional defense to men charged with a refusal to fight in Vietnam? No one can tell.

Actually, I've studied this question closely over the course of many years and I believe I can tell.  The phrase "declare war" included both formal declarations and the uses of force without a declaration.  Thus the President could not start wars.  However, the framers accepted broad statutory authorizations by Congress for presidential war making, for example in the 1798 naval war with France and the 1801 action against Tripoli.  Thus Iraq, Afghanistan and at least most of Vietnam were constitutional under the Constitution's original meaning and no such defense would be permitted.  Korea, on the other hand, was not approved (formally) by Congress and thus was an unconstitutional use of force by the executive.  Would that provide a defense to a soldier refusing to fight?  I think it would.  The exact issue never came up in the founding era, but it follows from the war being unconstitutional that a presidential directive to fight an unconstitutional war would be illegal and thus could not be the basis of prosecution.  In a somewhat analogous situation, the Supreme Court in Little v. Barreme (1804) held that an illegal executive order could not be a defense for a navy commander who was sued for wrongful seizure of a ship.

Perhaps Professor Lempert has studied this issue at length, including reading the evidence that I and others have put forward, and concluded that we are wrong.  A few originalists do take a different view (John Yoo being the most prominent).  But nothing in Professor Lempert's essay suggests that he has thought about the issue for more than a few minutes, and he cites nothing to show that originalism cannot provide an answer -- he simply asserts it.  In his post, Professor Barnett charges Professor Lempert with the fallacy of attacking a straw man; I think we can add assuming his conclusion.

Professor Barnett also asks a question I too have wondered about:

Why would [a person on the Left] possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause? 

(Or, I would add, the declare war clause?)


John Vlahoplus: Toward Natural Born Derivative Citizenship
Michael Ramsey

John Vlahoplus (independent) has posted Toward Natural Born Derivative Citizenship (forthcoming, British Journal of American Legal Studies Vol. 7) on SSRN.  Here is the abstract:

Senator Ted Cruz's campaign for the Republican presidential nomination again raised the question whether persons who receive derivative citizenship at birth to American parents abroad are natural born and eligible to the presidency. This article uses Supreme Court decisions and previously overlooked primary source material from the Founders and the First Congress to show that they are not natural born under the doctrinal and historical meaning of the term. 

It argues further that a living constitutional theory cannot justifiably interpret the term more broadly because derivative citizenship statutes have long discriminated on grounds including race, gender, sexual orientation, and marital and socioeconomic status. The Supreme Court upholds them even though they would be unacceptable if applied to citizens because they merely discriminate against aliens. Moreover, many who assert presidential eligibility or other constitutional privilege for children born to American parents abroad intend to favor traditionally dominant groups or rely on political theories of bloodline transmission of national character that the Supreme Court used to justify its infamous decision in Scott v. Sandford. No justifiable living interpretation can incorporate such discrimination or discredited political theories in qualifications for the highest office in the land. 

The article examines the meaning of the term "natural born" in the broader context of similar discrimination in English and British law from which American law developed. It acknowledges the difficulty of reconciling centuries of derivative nationality law and practice with our highest constitutional ideals of equal protection of the law. It concludes by identifying threshold requirements for and a possible approach to developing a justifiable theory of natural born derivative citizenship.

Thanks to Seth Barrett Tillman for the pointer.  I read an earlier draft; the attention to eighteenth-century British sources is impressive.


Requiring Freedom of Speech and Press in Every State via the Commerce Clause in Combination With the Equal Protection Clause
Andrew Hyman

For originalists, a most difficult and pressing question is what to do about applying the First Amendment and other parts of the Bill of Rights against the states.  That has been done heretofore via the Due Process Clause, but that type of incorporation has been widely (and rightly) regarded as illegitimate.  If clearly illegitimate, those cases ought to be overturned, because deliberate usurpation of constitutional power is not nice, and is the most dangerous sort of precedent.  But there are alternatives to simply letting states decide for themselves what to do about these fundamental rights. 

The leading alternative has been to use the Privileges or Immunities Clause of the Fourteenth Amendment, but that Clause unfortunately makes the rest of the Fourteenth Amendment look like a model of crystalline clarity by comparison.  While I have in the past supported a rather narrow interpretation of the Privileges or Immunities Clause that would only apply against states those rights that are spelled out in the Constitution, the arguments for various other interpretations of that clause are non-trivial and plentiful, so it's quite understandable that the courts have been reluctant to go along (cf. the 2010 case of McDonald v. Chicago in which the Privileges or Immunities Clause was the basis for the deciding vote of Justice Thomas, though I doubt it was because of the amicus brief that I wrote urging that approach). 

If the First Amendment is not incorporated against the states, it would not be the end of the world.  On the contrary, the country would doubtless pass a new constitutional amendment just like it has done plenty of times already.  But there is no need for that, in my view, because Congress has ample power to get the job done.  To keep things simple, I will focus here only on the speech and press clauses.

No one, presumably, would dispute that Congress has ample power under the Commerce Clause to say that no state shall infringe the speech and press rights described in the First Amendment, with respect to journalists traveling from out of state who are speaking or writing within the scope of their employment.  The same is probably true even when opinion or news journalists from out of state are speaking or writing outside the scope of their employment, for at least two reasons: first, it is necessary and proper to avoid the difficulties of determining exactly what expression is inside or outside the scope of employment, and, second, journalism would be chilled if journalists despise visiting states where they cannot fully exercise such a fundamental right as free speech outside of their work.  Suppose, then, that Congress backstops the freedom of speech and press for journalists by enacting such a statute under the Commerce Clause (I do not know whether President Trump would sign it after characterizing the mainstream media as an enemy of the American people, but suppose he does not veto it).

One might object on Comity Clause grounds that it is unconstitutional to discriminate between in-state and out-of-state journalists.  Indeed, though “privileges and immunities” typically do not include natural rights, they can still refer to the means of protecting natural rights.  But this is no problem, because the Comity Clause only requires that a state not discriminate against citizens from out of state, and does not prevent discrimination in favor of citizens from out of state.  So the federal statute protecting journalists should withstand constitutional scrutiny (it also may be that the Comity Clause only refers to certain rights of all in-state citizens rather than just a subset like journalists).

Now, consider the Equal Protection Clause.  Presumably most lawyers would  agree that when a state inhibits the ability of everyone to speak and write freely, but makes an exception for journalists from out of state, that raises a reasonable equal protection issue.  And, because speech and press rights are fundamental, strict scrutiny of the state’s discrimination ought to be triggered in the courts.  In my view, then, the Equal Protection Clause can be used to extend the coverage beyond journalists, to everyone else in the state, including not just local journalists, but also bloggers, protesters, and all other human beings in the state.  That is because the state does not have a compelling interest in protecting speech by out-of-state journalists alone.

Now, I would like to anticipate some objections.  First of all, one might argue that the business of journalism can flourish even if reporters do nothing more than observe and then go back to their home states and report about it (by speaking and writing).  While there is some truth to that, still Congress has always been allowed under the Commerce Clause to regulate commerce based upon moral and cultural concerns rather than economic concerns.  That is evident, for example, from the Constitution itself, which explicitly allowed Congress to bar importation of slaves after the year 1808.  And there is no question that securing the speech rights of itinerant journalists is a regulation of interstate commerce.

Another possible objection is that combining the Commerce Clause and the Equal Protection Clause in this way would not be limited by the Bill of Rights, and so would place unlimited power in federal hands.  My response is that the power in federal hands would actually be reduced, because instead of the judiciary unilaterally decreeing fundamental rights based (improperly) upon the Due Process Clause of the Fourteenth Amendment, any such decree in the future would require a concurrence of Congress (in exercising the commerce power) with the judiciary (which determines how the Equal Protection Clause operates).

And how about the cases that have explicitly limited congressional power under the Commerce Clause, like U.S. v. Morrison which addressed sexual assault?  Can Congress forbid sexual assault during any interstate business trip, and then have that law extended via the Equal Protection Clause to everyone else in a state?  Well, no, because there is typically no state action when a person is sexually assaulted, whereas the Equal Protection Clause has always been understood  correctly by the courts as a limit on state action only.  Likewise, this concept of combining the Commerce Clause with the Equal Protection Clause to protect free expression would not commandeer states, because states would not be required to take any action for or against anyone; but, if a state tries to act against free speech by out-of-state journalists then the state would be stopped via the Commerce Clause, and if the state tries to act against free speech rights of anyone else, then the state would be stopped via the Equal Protection Clause.  States are stopped right now from violating free speech rights, without any suggestion that a commandeering principle has been violated.

Let’s consider one last scenario.  Suppose Congress purports to forbid people from smoking indoors in public, nationwide, on the basis that secondhand smoke would chill businessmen from visiting smoky states.  First of all, I doubt that Congress would want to do this.  Second, I doubt that the courts would deem freedom from secondhand smoke to be a fundamental right.  Third, the Equal Protection Clause would not be applicable because there would be no state action.  Fourth, the Commerce Clause would be an equally adequate (or inadequate) basis for such a federal law at virtually every public indoor place within a state, so the Equal Protection Clause would not be needed even if it were applicable.

FURTHER THOUGHT:   I want to emphasize that there's definitely an Equal Protection issue if a state is banning speech by local journalists but allowing speech by journalists from out of state, even if the latter is compelled by federal law.  Assuming the Constitution requires that that equality issue be resolved (and I am sure it does), then the Equal Protection Clause together with the Supremacy Clause puts the onus on the states.  This becomes especially clear because the Constitution only includes a general equal protection requirement that's applicable against the states.  (Regarding Bolling v. Sharpe, Michael McConnell is right that Congress never "required that the schools of the District of Columbia be segregated.")  Finally, please also note that the Fourteenth Amendment bars a state from denying "the Equal Protection of THE laws" rather than "the Equal Protection of ITS laws" (emphasis added).  That was a deliberate word choice, repeatedly emphasized by Republicans like John Bingham and George Edmunds prior to ratification.  I'm not sure if that word choice is really necessary to alleviate concerns that I am bootstrapping the Equal Protection Clause, but that word choice does seem more than sufficient.

Has Originalism Been Tried?
Mike Rappaport

Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego.  It was another very enjoyable and productive event.  University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post:

I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was one of a small but non-trivial number of critics of originalism there, and the fact that we were included also speaks well for the conference, of course.  I learned things worth learning and would be delighted to go again.

Richard continues the blog post by discussing the views of some originalists that real originalism has never been tried.  He then expresses some skepticism about advocating a hypothetical approach of this type.

I have to admit that I don’t hear a lot originalists arguing that the approach has never been tried.  I’m not sure what these people have in mind.  I suppose they could have in mind new research techniques, such as corpus linguistics, that would allow much better understandings of the original meaning of language at the time of the framing.  But this technique is mainly about allowing modern interpreters to understand the original meaning and does not suggest that people at the time of the Constitution did not practice originalism.

In my view, the original methods approach – which requires interpreters to employ the interpretive rules that were deemed applicable to the Constitution at the time of its enactment – is the proper originalist interpretive approach.  Given that this approach requires that we employ the interpretive rules that existed at the time of the Constitution, it might seem problematic to claim that originalism had never been tried.

But things are a bit more complicated than this.  At the time of the Constitution, there were differing interpretive views – most importantly, the approaches of Thomas Jefferson and John Marshall.  They each sought to justify their approaches based on original methods –  that is, based on the applicable interpretive rules at the time.  So the leading approaches followed original methods, but they differed on its content.

What should originalists do today?  In my view, we should follow the correct original methods approach.  That is, we should determine what the proper approach was at the time and follow it.  In my view, the proper approach was closer to Marshall’s approach, but was not exactly Marshall’s.

So, I am advocating both something that was tried (the original methods) and something that was not tried (employing only a quasi-Marshallian approach).  But I see nothing unrealistic or problematic about advocating this.

But I should add that there no reason to expect or require that originalism work perfectly in accord with what I expect or desire.  Even in an originalist world, where everyone accepted originalism, it would be unlikely that all originalists would agree.  In fact, one might expect different originalist parties.  One possibility is a split between liberal originalism and conservative originalism, but there are other possibilities.  Would that be real originalism, even though I would presumably disagree with some of it?  Sure.  That may be the only kind of originalism we could realistically expect, but despite the disagreement it would still be much better, in my view, than what we have now.

Richard Primus on Originalism (with a Response from John McGinnis)
Michael Ramsey

At Balkinization, Richard Primus (Michigan): Originalism as Old and New (commenting on the San Diego originalism works-in-progress, at which he was an invited commentator).  From the beginning:

One of the things I learned [at the conference] -- I think -- was something about the growth of a relatively new perspective on originalism among many leading originalists.  Over the course of my time as a law professor, I've periodically heard originalists say that originalism is a new interpretive theory, one that has never really been put into practice.  One upshot of this view is the further idea that little or nothing in judicial practice to this point in time should be adduced as evidence of serious problems with originalism as a judicial method, because nothing that's been done so far is originalism.  If judges trafficking in individual meanings have been sloppy with their history, or if looking to original meanings doesn't have a demonstrated capacity to reduce the scope of disagreement among judges (because judges interpreting original meanings seem to come down on opposite sides of a contested question pretty much in the same proportions as we'd guess they'd come down on opposite sides if they used some other method), it doesn't follow that originalists shouldn't claim that courts can in fact learn to do history properly of that originalism has the virtue of making the law more determinate than other decisionmaking methods do.  What seems like counterevidence isn't, because real originalism has never yet been tried.  And in the meantime, we should recognize that originalist theory is in its infancy and cut it some breaks accordingly.  If we let it mature, and then road-test it, it might turn out to be great.

What I noticed about this view at this weekend's conference was that it seems to be held by more leading originalists than I think was the case ten or even five years ago.  I heard this view articulated, or at least alluded to, by originalist scholars of various different stripes: young and old, diverse in terms of the particular form of originalism they favor, and so forth.  To be sure, the view isn't universally held among today's leading originalists: I'm sure any number of the originalists at the conference would disavow it.  Indeed, there are some extant theories of originalism that rely on the contrary claim that we've in fact been doing originalism all along.  (Think of methodical-postivism originalists like Will Baude and Stephen Sachs.)  But if the thirty or so originalists at this weekend's conference are a representative sample, the community of leading originalist theorists has shifted at least some appreciable distance toward the view that originalism has never yet been tried.

John McGinnis responds at Liberty Law Blog: Once and Future Originalism.  He begins:

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School [ed.: that's the University of San Diego School of Law, please] under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

Of course, originalist scholars have refined the theory over time in what William Baude has called the division of labor between the bench and the academy. But these efforts do not change the map, but fill in important details. The world of scholarship on originalism as on other subjects is inevitably fractal: even progress on one question leads naturally to other questions. There is nevertheless an essential continuity between the  interpretive method Madison endorsed and that in which many originalist conference participants were earnestly engaged.

My view is in between.  I agree with Professor McGinnis that originalism was the main interpretive approach in the early years (not by that name, of course).  But I think things began to go astray earlier than the Progressive Era -- the late nineteenth century Supreme Court began appealing to extraconstitutional considerations and issued decisions seemingly based on little more than the Justices' own intuitions, with disturbing frequency.  For example, consider the range of federal power cases resting not on the federal government's delegated powers but on supposed inherent rights of sovereignty (the Chinese Exclusion case is a prominent one).  Relatedly, the Insular Cases created an exception to the geographical reach of the Constitution based apparently just on convenience.  And, after a good start in Strauder v. West Virginia and Yick Wo v. Hopkins, the Court drifted away from the original meaning of the Fourteenth Amendment and ultimately into Plessy v. Ferguson.  (Michael Paulsen and Luke Paulsen have an appropriately harsh assessment of this period in their book The Constitution: An Introduction).

I also think Professor Primus is partly right on two grounds.  Originalism has not been done consistently at the Court for a long time, although some cases are based on originalism (increasingly so, after Justices Scalia and Thomas joined the Court).  So, regardless of early practice, it's true that there is not a consistent experience with originalism in the modern era.  Further, originalism has only recently gained the deep and careful attention of a range of scholars, so its theoretical underpinnings in the modern era are relatively new and still being developed.  I'm not sure if this adds up to the full claim he is making, but I see where he gets the idea.

Professor McGinnis concludes (and I agree [including with the view he attributes to me]):

But originalists today are not advocating a radically new and lawless philosophy.   Originalism was the law once and today has enough influence on decisions that it is, in the words of Michael Ramsey [at the conference], one of the contenders for a rule of recognition deeper than the proposition that law is whatever the Supreme Court says it.  It can become an even more plausible as a contender, if originalists accept, as Michael Rappaport and I think they should, a role for precedent under rules that mediate between the generative force of originalism and the need to recognize than any legal system makes mistakes. Then nonoriginalist decisions that are woven in the consensus fabric of American life need not be disturbed.

It should not surprise us that in a nation as heterogeneous and divided as ours has become, that no underlying interpretive methodology is likely to gain a permanent victory. But the Gorsuch nomination as well as the growing culture of originalism suggests that the Constitution’s original interpretive method is regaining dominance.


Caroline Mala Corbin: Justice Scalia, the Establishment Clause, and Christian Privilege
Michael Ramsey

Caroline Mala Corbin (University of Miami School of Law) has posted Justice Scalia, the Establishment Clause, and Christian Privilege (First Amendment Law Review, Vol. 15, 2017) on SSRN. Here is the abstract:

Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion.

This symposium Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.

Via Larry Solum at Legal Theory Blog, who has additional comments and excerpts, including this in response to the claim that originalism is indeterminate:

Of course, many contemporary originalists affirm that the original public meaning of the constitutional text underdetermines some constitutional questions.  Where the text is vague or opened textured or where ambiguities cannot be resolved by contextual disambiguation, there may be "construction zones"--where the development of constitutional doctrine is not fully determined by original meaning.  Nonetheless, a very good case can be made that the determinate provisions (including much of the hard-wired or structural constitution) and the core of settled meaning of provisions that are vague have real "bite." See William Baude & Stephen E. Sachs, Originalism's Bite.


Mark Tushnet on President Trump and the 25th Amendment
Michael Ramsey

At Balkinization, Mark Tushnet: The 25th Amendment Option: Law and Politics.  On interpreting the 25th Amendment:

 [The 25th Amendment provides that when] the Vice President and a majority of the Cabinet declare that the President is "unable to discharge the powers and duties of his office," and send that declaration to Congress, the Vice President immediately becomes Acting President. The (now not quite) original President then can send his own declaration to Congress, "Yes, indeed, I'm able to discharge the powers and duties," and he becomes President (again) -- unless the Vice President and a majority of the Cabinet send another declaration, "No he isn't." within four days. At that point Congress has two days (if in session) to determine by a two-thirds vote in both Houses that yes indeed he is unfit. If the vote goes against the President, the Vice President becomes Acting President (apparently until the end of the original President's term -- so Pence would have the title Acting President, not President).

The legal part of all this is, What does "unable to discharge the powers and duties" mean? The clear intention of the Amendment's drafters was to deal with situations of physical and mental disability (Garfield for the eleven weeks between his being shot and his death, Wilson after his stroke). But that's "expected applications" originalism. The text is compatible with an interpretation in which "unable" means "unfit by demonstrations of sustained and serious failures of temperament" (or something along those lines). Another way to put it is that "unable" should be interpreted in a way just short of Gerald Ford's "high crimes are whatever a majority of the House think they are" standard: If there's a reasonable case to be made that the President is unable to discharge, etc., according to some reasonable understanding of "unable," the 25th Amendment is satisfied.

This is emphatically not how textualist originalism works.  True, "unable" can have the figurative meaning "unfit" or "not able to perform effectively" in some contexts (he's "unable" to play quarterback because he throws a lot of interceptions).  But it also (and I would say more commonly) means literally "not able" -- that is, not capable of doing the thing in question because of an absolute impediment (he's "unable" to play quarterback due to a broken leg).

The question is, which meaning would a reasonable person at the time of enactment more likely give to the word as it is used in the 25th Amendment, taking into account its history and context?  The question is not whether one meaning "is compatible" with the text; the question is which meaning is more likely.

To answer this, we can consider (as the post indicates) the background that gave rise to the amendment, namely the situation of presidents who were literally "unable" to function as president (not just doing so poorly).  We can also consider the impact of the amendment if it did mean "unfit" (which would be a substantial constitutional innovation, in effect extending impeachment from "high Crimes and Misdemeanors" to general lack of competence) versus the impact if it meant only literally unable (a minor adjustment in the case of unusual circumstances).  And we can consider whether people at the time of enactment talked about it only in the latter terms, or if they also saw it as a check against unfit presidents.

Professor Tushnet derides this approach as "original expected applications" though I might think it better described as "purpose."  I agree that for an original public meaning originalist the touchstone is the text, not the purpose or the expected application.  But purpose and expected application, although they cannot override text, are important to deciding on the meaning of text.  Where a word is ambiguous (that is, it has two possible meanings, as here) they are indications of what meaning was understood.

My guess is that looking at the history would show the "unfit" meaning is not even "compatible" with the original meaning of the amendment -- given the significance of the change, if no one at the time is recorded as advancing the "unfit" meaning, that's pretty strong evidence that it was not the original public meaning.  But again, the question is not whether the "unfit" meaning is "compatible" but whether it is more likely than not to have been the original meaning.  Once the question is posed this way, I can't imagine the answer is at all in doubt.