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David Weisberg on Originalism and Peña-Rodriguez v. Colorado (with my Comments)
Michael Ramsey

Regarding this post, David Weisberg writes: 

In DC v. Heller, Justice Scalia’s opinion for the majority correctly rejects the absurd argument that, if one takes an originalist approach to the Second Amendment, then one is compelled to conclude that the operative clause protects only the right to bear flintlock weapons.  This is absurd because, whatever interpretive theory one relies on, it is obvious that the drafters knew the difference between the words “arms” and “flintlock weapons”.  If they wanted the operative clause to be limited to flintlock weapons, they were perfectly capable of using those words in the operative clause.

With regard to the post (03/07/2017) discussing Justice Thomas’ dissent in Pena-Rodriguez v. Colorado, I would think precisely the same kind of argument would apply to his assertion: “The Sixth Amendment’s protection of the right, ‘[i]n all criminal prosecutions,’ to a ‘trial, by an impartial jury,’ is limited to the protections that existed at common law when the Amendment was ratified.”  Surely, the people who drafted the Sixth Amendment would have recognized the difference between an amendment that guaranteed the right to a “trial, by an impartial jury”, and one that guaranteed the right to a “trial, by an impartial jury, only to the extent such right is protected by the common law as of the date of the ratification of this Amendment….” 

If the drafters and ratifiers of the Second Amendment wanted to refer only to flintlock weapons, why didn’t they draft the amendment in those terms?  If the drafters and ratifiers of the Sixth Amendment wanted to limit the right to an impartial jury only to the extent such right is protected by the common law as of the date of the ratification of the amendment, why didn’t they draft the amendment in those terms?

Or, to put the exact same question another way, when the Eighth Amendment was drafted, did the phrase "cruel and unusual punishments" really mean "punishments that are cruel, and that are also unusual as of the date of the ratification of this amendment"?  If they meant the latter, why did they draft the former?  Surely, they could appreciate the difference just as well as we can. 

I think this is an important comment in getting at a key to originalist methodology.  As to the Second Amendment point, I agree, although for somewhat different reasons.  I would say:  it is normal, and indeed inevitable, in ordinary lawmaking, to refer to categories of physical things as they now exist or will exist in the future.  Otherwise, the law rapidly becomes a nullity.  Thus, I cannot drive my Tesla (assuming I could afford a Tesla) 100 mph on the highway and defend against an ensuing traffic ticket on the ground that Teslas did not exist when the speed limit law was written.  Justice Scalia said in Heller that such an argument with respect to "arms" borders on the frivolous, but I think is is actually literally frivolous in that, if I tried to use it in traffic court regarding my hypothetical ticket I would deserve (and maybe get) sanctions.  No sensible legislator would write a statute that way.  No one thinks statutes are written that way; the idea that we should have such a view of the Constitution is, as the comment says, absurd.

But the issue in Peña-Rodriguez is not analogous.  The question is not what an impartial jury means; it is what "the right" to an impartial jury means (specifically, whether it includes the right to overturn a verdict by proof of bias).  That question is not affected by the problem of new physical things not in existence at the time of enactment.  People of the enactment era understood the risk of jury bias in the same sense we do, and had a (limited) idea of what rights one had against it.  There is nothing "new," in the sense that a Tesla is new; the question is simply whether the scope of "the right" should be the scope understood at the time of enactment or some other scope that we make up.

Now it's possible that the common meaning of such a phrase at the time of enactment was that it delegated to future generations the decision as to the scope of the right.  But that is unlikely in the abstract, because that creates no firm right; it only creates whatever right judges of the future are willing to recognize, which could be much less (or more) than the enactors wished.  It is even more unlikely in the specific case of the Bill of Rights, which (as Justice Thomas said) was understood at the time as codifying pre-existing rights.  In this circumstance, the enactors are trying to enact a value judgment (how much protection to give to jury rights) and they typically would not want future generations second-guessing them.  Unlike in the case of speeding cars (where we assume the goal is to cover all cars, whether existing at the time of enactment or not), the assumption -- at least absent contrary evidence -- is that the goal is to enact the specific rights the enactors have in mind.

The question on the Eighth Amendment is difficult because the Amendment could be described either way.  Justice Scalia thought it referred to a value judgment -- that is, that it precluded the kind of punishments that were unusual at the time because they were barbarous, such that if more barbarous punishments came into common acceptance later, they would still be unconstitutional.  But I am not so sure.  "Unusual" might refer to facts as they exist from time to time -- that is, whatever is not common practice at the time a case is brought.  It's plausible that the enactors' concerns, and the way their enactment was understood at the time, centered on departures from usual practices in punishment, not on any particular kind of punishment.  If that's true, then it's analogous to the Tesla -- a change in facts changes the outcome (although it does not change the meaning). 

UPDATE:  David Weisberg adds this response:

Prof. Ramsey asserts: "In this circumstance, the enactors are trying to enact a value judgment (how much protection to give to jury rights) and they typically would not want future generations second-guessing them."

I assume he (and Justice Thomas) would say the same thing about every right enumerated in the first eight amendments; that is, all those rights would be limited in scope or extent to the scope they had in 1791.  I submit that precisely the same line of reasoning led Justice Scalia to conclude that a modern-day reinstatement of flogging as punishment for crime would be constitutional: he was assuming that "unusual" in the Eighth Amendment meant "unusual in 1791".  Nowhere in the Bill of Rights is there any explicit reference to such a temporal limitation on any right, whether in the Sixth Amendment, the Eighth Amendment, or any other amendment.    

The drafters could have highlighted that very important temporal limitation, and avoided even the possibility of "second-guessing", if they had added only a few words to the Ninth Amendment, so: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, and those enumerated rights shall be deemed to be as extensive, but only as extensive, as they were deemed to be when ratified as part of the Constitution."  That is the gist of what would have done the job. 

The enactors, we are told, did not want future generations second-guessing them.  They were, I take it, concerned that that might happen.  A few words added to the Ninth Amendment would have ensured that there could be no such second-guessing, but those words are nowhere to be found in the Constitution.  Did the drafters simply screw up, or did they write precisely what they intended to write?  Were the enactors careful, thoughtful statesmen and lawyers, or were they slobs?

Consistent with my usual policy, I give him the last word.