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30 posts from March 2017

03/23/2017

Lawrence Solum (and Cosmopolitan!) on Originalism
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Statement of Lawrence B. Solum re Nomination of Nomination of the Honorable Neil M. Gorsuch To Be an Associate Justice of the Supreme Court of the United States on SSRN. Here is the abstract:

This statement [to the Senate Judiciary Committee] addresses the nature of originalism. Originalism consists of three core ideas: (1) the original meaning of the constitutional text is its public meaning; (2) the original meaning of the text is fixed at the time the text was framed and ratified; and, (3) judges should be bound by the original meaning of the text. Much of the public discussion of originalism has focused on myths: originalism does not attempt to answer the question, "What would Madison do?," and many other charges against originalism are mythical as well. Originalism is in the mainstream of American jurisprudence historically, and originalism should be acceptable to Americans from a broad range of political orientations. The two core arguments for originalism focus on the rule of law and legitimacy.

Also a less-positive take on originalism in Cosmopolitan: 9 Reasons Constitutional Originalism Is Bullsh*t. I did not think I would see in my lifetime an analysis of originalism in Cosmopolitan.

And a response at The Federalist: Cosmopolitan Doesn’t Understand How The Constitution Works.

(Via Stephen Green at Instapundit).

03/22/2017

Why My Daughter Needs Originalism
Chris Green

Yesterday, Senator Amy Klobuchar asked Judge Gorsuch if women could be President, given that the Constitution repeatedly uses the word "he" or "his" to refer to the President. Gorsuch replied somewhat gruffly, "Of course, women can be president of the United States! I'm the father of two daughters and I hope one of them turns out to be president of the United States!" Stanley Fish once commented that my then-five-year-old daughter's question to me about the Originalism Works-in-Progress Conference--"but what are you doing?"--beautifully captured the spirit of the conference, and I too-frequently joke that I will save items for her presidential library. If "he" only refers to men, alas, she will never have one, and neither will Judge Gorsuch's daughters.

Assume for the argument that we will pick our constitutional theory to guarantee the result that women may become president, either today or whenever our daughters are old enough to be president. Which constitutional theory guarantees this result? 

Only originalism.  If linguistic drift changes the requirements of the Constitution, then change in the usage of gender-neutral pronouns changes who may be president. There are many parts of the English-speaking world, especially academic parts of it, in which it would be quite improper to use the word "he" repeatedly to refer to a gender-unspecified individual. Historically, though, "generic he" was of course quite common. If this new norm of language were to become universal, could women be President? Not if today's usage norms are deemed controlling in interpreting the Constitution.  

Sticking with the manner in which language expressed meaning at the time of the Founding is actually the best way to guarantee that women may continue to be eligible for the presidency. Construing "he" in the Constitution to mean what the Founders would have expressed by it--that is, what people in many circles today would say only by saying "he or she"--is clearly the way to go. I therefore put "he" alongside "now" as the Constitution's words which most obviously have only the meaning they expressed at the time of the Founding.

Update (3/23): Mike Rappaport makes the additional important point here that generic "he" is used in the Sixth Amendment. While female chief executives like Elizabeth and Anne were known to the Founders but not common, female defendants were both (a) common and (b) covered by "him" and "his" in the Sixth Amendment.

Jonathan Gienapp on Originalism and History
Michael Ramsey

At Process: A Blog for American History, Jonathan Gienapp (Stanford History): Constitutional Originalism and History.  From the introduction: 

Thanks to President Donald Trump’s nomination of Justice Neil Gorsuch—a self-identified “originalist”—to the Supreme Court, constitutional originalism is yet again at the forefront of American consciousness. Historians would do well to take special notice. Because while most forms of American constitutional jurisprudence have drawn on the history of the Constitution’s creation, only originalism—the theory that seeks to construe the Constitution today in accordance with its original meaning when it was first enacted—implicates the role of historical study in constitutional interpretation. Moreover, despite several assurances through the years that originalism’s death knell had sounded, the theory enjoys more champions, and more influential champions, than at any point previously. Beyond the federal judiciary, leading originalists can be found on most esteemed law school faculties and in a growing network of influential constitutional law centers and think tanks. The thriving annual “Originalism Works In-Progress Conference” at the University of San Diego Law School’s Center for the Study of Constitutional Originalism (which just hosted its eighth iteration) is one prominent marker of popularity and influence; the well-funded annual “Originalism Boot Camp,” which hosts aspiring law students each summer at the Georgetown Center for the Constitution is another. A new mountain of originalist scholarship and new lines of influence linking this academic work with the world of political and judicial action, meanwhile, appears every year. As Gorsuch’s selection illustrates, originalism is as powerful as ever, so its relationship to history remains as urgent as ever.

Despite that urgency, historians continue to show little interest in originalism. But in scoffing it off as quaint curiosity, outlandish absurdity, or both, they ignore how a largely one-sided and consequential debate has evolved. Fortunately, Gorsuch’s nomination offers a fresh opportunity to probe originalism’s relationship to history. It has evolved significantly since its emergence, around the time that Antonin Scalia—the theory’s most visible champion for the past three decades and the justice Gorsuch has been nominated to replace—first took his seat on the Supreme Court. But originalism’s development is not simply intriguing in its own right. By understanding how it has changed, we can appreciate the unique, little understood, and urgent threat it now poses to the practice of history.

And from the conclusion:

No doubt historians investigate a plethora of historical meanings, often privileging exactly the kinds of subjective intents and understandings that public meaning originalists disparage—such as, for instance, the authorial intent that shaped a text’s production, the intellectual purposes that a text served, or the broader intellectual or cultural context from which a text emerged. But that choice is irrespective of knowing how to think historically. If the goal happens to be deciphering the public meaning of a historical text, then this foundational historical skill remains every bit as essential. The reason why is what originalists’ favored keyword searches (detailed above) fail to take into account: that, as Bernard Bailyn has put it, “the past is a different world.”  Words and concepts that appear in historical sources often bear a superficial similarity to our own, but grasping what they actually meant in their original historical context requires first reconstructing the foreign conceptual world from which they issued. Keyword searches can never disclose this world (in fact, such searches presuppose that this world is immediately accessible and virtually identical to our own). But, as all historians know, bringing this world into focus requires a much deeper level of immersion. It requires a version of what is needed to decode early modern French cat massacres, crowd activity in eighteenth-century Britain, or early nineteenth-century New York ordinances on pig-keeping.  It requires taking up residence with the natives of the historical past, engrossing oneself in their logics, tracing the patterns made by their thoughts and meanings, and learning how to think and reason as they once did. In the case of the American Constitution, it requires knowing how to think and reason as Founding-era Americans did, knowing how to see the world as an original constitutional reader would have. It requires learning how to speak eighteenth century. It requires knowing how to think historically. It requires, in short, behaving like a historian.

I agree with much of the essay, in particular that it would be a great contribution for historians to become more involved in the originalist enterprise.  I do not agree (as Professor Gienapp says midway through the essay) that most originalists "have dismissed most eighteenth-century historical evidence as irrelevant to their quest"; if they have, they shouldn't.  But historians have not helped themselves by claiming implausibly that the historical meaning of texts cannot be determined or that only historians can make historical arguments.  (To be clear, Professor Gienapp does not make these claims; but I have heard them many times).  Collaboration between historians and legal scholars to reach common ground on historical meaning would be an important step forward.

(Via Alfred Brophy at The Faculty Lounge).

03/21/2017

More Questions for Judge Gorsuch
Michael Ramsey

Everyone seems to have a set of questions the Senate should ask Judge Gorsuch.  Many of them involve originalism (thanks for all the free publicity, Judge!).  Here are a few highlights:

At Politico, Jeff Greenfield: What the Senate Should Ask Judge Gorsuch -- A few good questions could rescue the Supreme Court hearings from the charade they've become.  On originalism: 

Asking Gorsuch point-blank whether he believes in “originalism” or views the Constitution as a “living” document is an invitation to a linguistic tap dance. A better course would be to frame the issue specifically. For instance:

“The Eighth Amendment forbids ‘cruel and unusual punishment.’ But it doesn’t define the term. If a punishment like flogging or branding was a regular feature of 18th century criminal justice, would that mean a court could not forbid it under the Eighth Amendment today?”

Or, “Interracial marriage was outlawed by 16 states for a century after the 14th amendment and its equal protection clause was adopted. When the issue came before the Supreme Court in 1967, the ban was unanimously struck down. Did the court have to find that legitimizing interracial marriage was the ‘original intent’ of the drafters in order to reach its decision?”

Either question would make clear where originalism finds its most difficult challenge, and might help provide a clue to how Gorsuch works through such a challenge.

Actually these are both pretty unhelpful questions.  On the first, as I've noted, "unusual" could have (at least) two possible original meanings.  One is Justice Scalia's -- that it referred to particular kinds of punishments: punishments that were aberrational at the time of enactment.  Another is that it referred to punishments that are aberrational at the time the punishment is imposed.  I think a conventional originalist could have either view, depending on one's perception of what motivated the amendment.  (For more extensive discussion, see here from John Stinneford).

On the second, (a) what is it with commentators and "original intent"?  How many times must one say that the touchstone of modern originalism is the original meaning of the text, not the framers' intent disconnected from the text?  To be clear, the answer the the question posed in the last sentence of the paragraph is "no."  Period.  (b) Post-ratification practice is evidence of original meaning, but it's not conclusive evidence.  The fact that "16 states" [not actually that many, plus how many were ex-Confederate States?] outlawed interracial marriage might only be evidence that many states did not live up to their constitutional obligations.  The question is whether the original meaning of the Fourteenth Amendment barred laws against interracial marriage.  I think most originalists (including Scalia) would say it did, based on the text itself and the Court's early interpretations in cases like Strauder v. West Virginia.  (See here for more extensive analysis from David Upham).

In sum, originalists have thought about these issues in depth.  They simply aren't material for "gotcha" questions.

The Los Angeles Times does better in an editorial, asking (among others) these questions:

For example, to Americans in the 19th century, the “equal protection of the laws” guaranteed by the 14th Amendment might seem to protect only racial equality; in the 20th century it seemed obvious to many Americans that it also prohibited some forms of sexual discrimination. Does Gorsuch object to that updated interpretation? Does he believe that a constitutional provision must be viewed through the eyes of the generation in which it was adopted and can't be interpreted to deal with situations its authors never could have imagined, such as cellphone GPS signals being used to track suspects without a warrant?

These are both pretty tough questions and the answers would reveal a tendency toward one or another camp within originalism.  On the sexual discrimination point, some (like Justice Scalia) would say that is so far outside the framers' idea of equality that the Fourteenth Amendment can't cover it, and updating (if thought appropriate) must be done by amendment or legislative processes, not by unelected judges.  Others (like Michael Paulsen) would say that the plain meaning of equality includes equality for women (as many people, especially many women, recognized at the time of enactment), even if post-enactment men did not live up to that aspiration.  (In my view an even better question is what the nominee thinks of Obergefell v. Hodges, the same-sex marriage case, as a matter of originalism: this really gets at the question of how much changing understandings of facts allows outcomes completely unanticipated by the framers -- see my discussion here).

The second question the Times poses is also hard, although it's mangled by the tendentious phrasing: of course all conventional originalists think that the Constitution can "be interpreted to deal with situations its authors never could have imagined."  Originalism does not fail to accommodate technological change, as Justice Scalia made clear in District of Columbia v. Heller, for example (holding that the Second Amendment protects the right to "keep" modern arms that were unknown in the founding era and dismissing the contrary argument as bordering on the frivolous).  But there's a substantial question how far this goes.  In Kyllo v. United States, for example, the question was whether the Fourth Amendment required the police to obtain a warrant before using infrared technology to measure the heat coming from a private home (high heat levels suggesting drug-growing operations).  Justice Scalia said the original meaning of the Fourth Amendment required a warrant; Justice Thomas thought it did not.

One observation from all this is that originalism has extensive internal debates about how far it extends the Cosntitution's text into modern controversies.  Commentators (and aspiring question-writers) would do well to work within these debates to formulate truly meaningful questions instead of trying to play "gotcha" in areas where thoughtful originalists will already have well-considered answers.  The questions for Judge Gorsuch should try to locate him on the spectrum of modern originalism in terms of how far he would go apply the text's original meaning in ways unanticipated by the framers.  All originalists are willing to do this to some extent, but some more so than others.  If one really cares what sort of Justice Judge Gorsuch will be, this is an area to investigate.

RELATED:  Other interesting sets of originalist-oriented questions from Ilya Somin here, and Ramesh Ponnuru here.

03/20/2017

Josh Blackman: SCOTUS after Scalia
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted SCOTUS after Scalia (NYU Journal of Law & Liberty, Vol. 11, No. 1, 2017) on SSRN.  Here is the abstract:

 The sudden passing of Justice Antonin Scalia disturbed the Supreme Court’s predictable rhythm. This Foreword will analyze the contentious period from Justice Scalia’s death until President Trump’s inauguration, and draw four lessons about the Court, the Constitution, consistency, and Congress. First, this interregnum allows us to study how the short-handed Court engaged in self-help in the short term, and in the long run, how the Court may remain evenly-divided Court for years at a time. Second, with a possible liberal replacement for Justice Scalia, the conservative legal movement’s faced a near-death experience. Part II analyzes how this brush with fate may impact the Roberts Court’s views on incrementalism, institutionalism, and originalism. Third, the change-in-administrations offers an opportunity to lay down markers and chart future movements on the left and right with respect to three important areas: federalism as a check on federal power, deference to the administrative state, and state-led litigation against the federal government. Part III discusses how constitutional consistency will evolve during the Trump Presidency with respect to federalism, administrative law, and state-standing to pursue nationwide injunctions.

Finally, Part IV considers how the unexpected outcome of the election — whereby the Presidency and Senate were both in Republican control — simply delayed the inevitable: at some point, the President and Senate will be of different parties, and they will not be able to agree on a Supreme Court nominee. Through a novel approach developed in this Foreword, the Senate can offer preliminary votes on several possible candidates to fill a Supreme Court vacancy. Though not bound by those resolutions, the President would be wise to consider the Senate’s counsel before making the nomination. By offering Senatorial “advice” before the President’s nomination is made, the “consent” process between the two branches becomes more collaborative and less antagonistic.

It is important, not to simply shrug off the past year as an outlier in the Court’s history. The atypical October 2015 term may, soon enough, become the new normal.

03/19/2017

Stephen Gottlieb: Democracy Essential to the Legitimacy of Constitutional Interpretation
Michael Ramsey

Stephen E. Gottlieb (Albany Law School) has posted Democracy Essential to the Legitimacy of Constitutional Interpretation on SSRN. Here is the abstract:

Contemporary risks to democracy sharpen the question about what use the Court should make about democratic thought, especially empirical thought. By contrast, the argument over originalism has largely eliminated democracy from constitutional interpretation, partly in reaction to Carolene Products. This manuscript argues, first, that no theory of constitutional interpretation can be legitimate without democracy, and then explores the implications of that conclusion.

03/18/2017

Michael Morley: The Federal Equity Power
Michael Ramsey

Michael T. Morley (Barry University School of Law) has posted The Federal Equity Power on SSRN.  Here is the abstract:

Erie killed general law. Due to statutory, constitutional, and fairness constraints, a federal court generally must apply state substantive law in diversity and supplemental jurisdiction cases.

Since our nation’s founding, however, federal courts have treated equity as an independent branch of general law, binding of its own force in all cases that come before them. In Guaranty Trust Co. v. York, the Supreme Court held that, notwithstanding Erie, federal courts may continue to rely on traditional principles of equity derived from the English Court of Chancery to determine the availability of equitable relief, such as injunctions, receiverships, and equitable liens, in cases arising under state law. This so-called “equitable remedial rights doctrine” is based on an anachronistic misunderstanding of the nature of the federal equity power. This Article offers a bold new approach to understanding the nature and limits of the federal equity power. 

There is no single body of equity law that federal courts must apply in all cases that come before them. In cases arising under state law, there is no basis in the Constitution, federal law, or Federal Rules of Civil Procedure for courts to impose their own equitable standards for relief. Rights and remedies are inextricably intertwined. The manner in which state-created rights are protected is as much a matter of substantive state policy as the state’s initial creation and allocation of those rights. A federal court must apply state statutes and precedents — not uniform, centrally devised federal standards — to determine the availability of equitable relief for state-law claims.

Conversely, for cases arising under federal statutes, the equitable principles that apply are a question of statutory interpretation. When a federal law authorizes equitable relief, a court may presume Congress intended to incorporate traditional equitable principles, absent a clear statement to the contrary in the law’s text or legislative history. And for constitutional cases, federal courts may presumptively apply traditional equitable principles as a matter of constitutional common law, unless Congress chooses to displace it. Thus, contrary to received wisdom, there is no single federal equity law. The scope of equitable relief a federal court may afford depends on the underlying law from which a claim arose.

03/17/2017

Ilan Wurman: Constitutional Administration
Michael Ramsey

In the current issue of the Stanford Law Review, Ilan Wurman (Winston & Strawn LLP) has the article Constitutional Administration (69 Stan. L. Rev. 359 (2017)).  Here is the abstract:

Administrative law rests on two fictions. The first, the nondelegation doctrine, imagines that Congress does not delegate legislative power to agencies. The second, which flows from the first, is that the administrative state thus exercises only executive power, even if that power sometimes looks legislative or judicial. These fictions are required by a formalist reading of the Constitution, whose Vesting Clauses permit only Congress to make law and the President only to execute the law. This formalist reading requires us to accept as a matter of practice unconstitutional delegation and the resulting violation of the separation of powers, while pretending as a matter of doctrine that no violation occurs.

This Article argues that we ought to accept the delegation of legislative power as a matter of doctrine because doing so can help remedy the undermining of the separation of powers. Accepting delegation as a matter of doctrine allows us to delineate the legislative, executive, and judicial components of administration and to empower each constitutional branch of government over the component corresponding to its own constitutional function. With this insight, for example, a legislative veto of the administration’s legislative acts is constitutional.

This Article seeks to make one functionalist move (accepting delegation) in order to deploy formalist tools to restore some semblance of the original constitutional scheme of separate powers. It seeks to take both formalism, which has served merely to mask the administrative state’s unconstitutional foundations, and functionalism, which has failed to offer any limiting principles to modern administrative practices, more seriously than modern scholars and doctrine do. A functionalist approach to delegation allows us to deploy formalism—but an honest formalism—to the separation of powers.

(Also, I hear he has a forthcoming book on originalism...).

03/16/2017

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.

03/15/2017

The Language of the Law and Pena-Rodriguez v. Colorado
Mike Rappaport

Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law.  The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law.  But what turns on this question?  The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices.

A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards the defendant and his alibi witness during the deliberations.  This evidence of bias, however, was excluded based on a Colorado evidence rules which “generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict.”  The Supreme Court majority opinion, written by Justice Kennedy, held that this no impeachment rule was unconstitutional as violating the Sixth Amendment right to “an impartial jury.”

While the majority opinion largely neglects originalist arguments, Justice Thomas in dissent argued that the no impeachment rule did not conflict with the Sixth Amendment.  He based his argument on his claim that the Sixth Amendment was protecting the common law right that existed at the time of the Constitution.  Thomas wrote:

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. See . . . 3 J. Story, Commentaries on the Constitution of the United States §1773, pp. 652–653 (1833) (Story) (explaining that “the trial by jury in criminal cases” protected by the Constitution is the same “great privilege” that was “a part of that admirable common law” of England). . . . It is therefore “entirely proper to look to the common law” to ascertain whether the Sixth Amendment requires the result the Court today reaches.

The common-law right to a jury trial did not, however, guarantee a defendant the right to impeach a jury verdict with juror testimony about juror misconduct, including “a principal species of [juror] misbehaviour”—“notorious partiality.” 3 Blackstone 388. Although partiality was a ground for setting aside a jury verdict, ibid., the English common-law rule at the time the Sixth Amendment was ratified did not allow jurors to supply evidence of that misconduct. In 1770, Lord Mansfield refused to receive a juror’s affidavit to impeach a verdict, declaring that such an affidavit “can’t be read.” Rex v. Almon, 5 Burr. 2687, 98 Eng. Rep. 411 (K. B.). And in 1785, Lord Mansfield solidified the doctrine, holding that “[t]he Court [could not] receive such an affidavit from any of the jurymen” to prove that the jury had cast lots to reach a verdict. Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B.). ...

Justice Thomas is arguing that the right had a specific historical legal meaning and that determines its content.

Significantly, this argument only applies if one believes the Constitution is written in the language of the law.  The reason is that “the right to an impartial jury” is referring to the historical legal right that existed at common law.  By contrast, if the Constitution is written in ordinary language, then this legal meaning could not be employed because legal meanings are not part of ordinary language.  Since it seems pretty likely that this right had its common law meaning, especially as supported by the purpose of the Bill of Rights to preserve the historical rights of the English, this is one of many strong arguments for concluding that the Constitution is written in the language of the law.

If the right only has its ordinary meaning, then how should it be given content?  What does “the right to an impartial jury” mean in this context?  It is not clear.  One might believe that it should include the right to admit juror evidence to set aside a verdict based on racial bias, but what about verdicts based on other types of bias?  The Supreme Court indicated the answer to other types of bias would not justify such setting aside.  Ultimately, the matter is not clear and so the Court must decide based on some extraconstitutional matter.  The majority opinion reads like it was decided based on the Justices’ values.