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06/29/2018

Not Much Originalism this Week from the Supreme Court
Michael Ramsey

In contrast to last week, this week was a disappointing one for Supreme Court originalism.  First, in Trump v. Hawaii, Chief Justice Roberts' majority opinion upholding the constitutionality of the President's travel ban relied on the rational basis test.  Though it may reach the right result here, the rational basis test is (as various originalist scholars have argued) is a Court invention.  And the Court's strongest originalists didn't add much in concurrence -- just this from Justice Thomas (who went on to complain about nationwide injunctions):

[T]he President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14).

If Justice Thomas means by this that President's "executive Power" in article II, Section 1 includes the power to exclude aliens, I think there may be an originalist case for it (though I'm not sure why this would override Bill-of-Rights protections). But Knauff does not develop a constitutional argument; instead it relies on powers of sovereignty, which suggests the extraconstitutional theory of foreign affairs power in the Curtiss-Wright case and which does not have a sound originalist foundation.  Thomas' extensive originalist dissent in Dimaya mostly addresses a separate issue -- whether immigration statutes are limited by the due process clause; it says little about the President's independent power.

Second, in Janus v. NFSCME, Justice Alito's majority opinion -- finding compelled public sector union dues unconstitutional -- had this rather thin originalist analysis:

The most surprising of these new arguments is the Union respondent’s originalist defense of Abood [the case overruled in Janus]. According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees. Brief for Union Respondent 2–3, 17–20.

As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have “no [free speech] rights.” ...

Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. See Ex parte Curtis, 106 U. S. 371, 372–373 (1882). The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using “‘contemptuous or disrespectful words against the President’” and other officials, and an 1801 directive limiting electioneering by top government employees. Brief for Union Respondent 3. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while recognizing that government employees possess First Amendment rights. ... 

...

The Union has also failed to show that, even if public employees enjoyed free speech rights, the First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who
framed and ratified the Bill of Rights. Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “‘sinful and tyrannical,’” supra, at 9, and others expressed similar views.

In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment.

This analysis seems to put the burden on the government to show support from the original understanding, without explaining why the burden should be allocated this way.  Also it does not really grapple much with what I think is the core originalist question in the case, namely whether forced contributions to private entities that engage in expressive activities is different from forced contributions to the government itself (where the government engages in some expressive activities).  None of the other Justices in the majority concurred to offer additional analysis.

(Of course, Justice Kennedy's retirement may have some originalist implications...)