At Liberty Law Blog, John McGinnis: Why Law Students Need to Learn More about Originalism. It begins:
It would be educational malpractice not to teach antitrust law without explaining the consumer welfare model that generates most modern decisions in American competition law. Even if as a scholar you believed that the model was misguided, this would still be true. Law is a professional discipline and students should be prepared for the world as it is rather than what their professors fantasize it could be.
Similarly, it would be malpractice not to describe originalism as an important theory of constitutional interpretation. To be sure, it is not as dominant in constitutional interpretation as the consumer welfare model is in antitrust. But no one could doubt that originalism is growing in importance. First, Court opinions sometimes treat originalist arguments as decisive. Indeed, as even some commentators on the left recognize, it is sometimes essential for progressives to appeal to the purest originalists on the court, like Gorsuch, because they may break with other Republican appointees precisely because of their greater commitment to originalism. As Randy Barnett noted, from his testimony at the confirmation hearings Kavanaugh may well turn out to be a pretty thoroughgoing originalist.
And on issues of first impression, both Chief Justice Roberts and Justice Alito are also tenacious originalists, as the recent concurrence in the recess appointments case showed. Even Justice Elena Kagan claimed to be an originalist in her confirmation hearing, which I took to be a sincere claim that the original meaning figures into her interpretive method, even if it is not the exclusive method even on questions of first impression.
Beyond helping students to be advocates in particular cases, understanding originalism helps explain what is going on at the Court. Informed by originalism, students can comprehend why justices widely perceived as conservatives (like Antonin Scalia) reach results that political scientists code as liberal in important cases, like those related to criminal procedure. Perhaps most importantly, they would understand the underlying methodological battle going at the court — that is, whether or not originalism will be treated as the predominant rule of recognition for what is our fundamental law.
At Dorf on Law, Eric Segall responds: Originalism in the Classroom? From the core of the argument:
First, to teach that Justices Scalia or Thomas, or the Court as an institution, has ever embraced originalism seriously would in fact be malpractice. As I've documented many times, and explain in Chapter 7 of my book, Scalia and Thomas have voted in a non-originalist manner throughout constitutional law including in the areas of affirmative action, campaign finance reform, takings, standing, federalism, first amendment, and virtually every other area of litigated constitutional law. As to Scalia, if you don't believe me, trust Randy Barnett on this point. And if you believe Barnett, well Thomas and Scalia voted the same way in most (not all) constitutional law cases. To both of them, the Constitution is/was alive and kicking. I think most law professors already know this and teach accordingly.
Professor Michael Rappaport has suggested to me that many of my public statements critical of originalists deal with judicial originalism, not what he calls "academic originalism." I'm not sure that's fair, but let's assume a constitutional law professor teaching the basic con law course wants to teach originalism as part of her course. The question would be: whose originalism?
Larry Solum is a well known originalist who testified in the Gorsuch hearings and has written thousands of pages on the subject. He has not yet, however, applied his theory to actual cases (really). So that seems like somewhat of a dead end for a survey course. I would assume Robert Bork's writings would be part of any originalist materials, except few originalists today agree with his method that included a heavy does of judicial restraint (same with Raoul Berger and Lino Graglia). Those Original Originalists simply don't seem to matter much anymore (to my chagrin).
Ilya Somin and Steven Calabresi urge a form of originalism that they claim justifies the Court's decisions overturning same-sex marriage bans, but many other originalists such as Michael Paulsen think that conclusion is, well, not only not originalist, but comparable to Dred Scott. Randy Barnett and Ilya Shapiro would like to overturn much of the administrative state through their brand of originalism via "judicial engagement", though Michael McConnell would absolutely deny judges that role under his version of originalism. Meanwhile, Will Baude and Steve Sachs think originalism is already our law (including cases like Brown and Obergefell), Most originalists today do not agree with that view.
The reality is that there is no one, two, or even three forms of "originalism" today, which is why my book spends a lot of time talking about the Original Originalists, the New Originalists, and the New New Originalists, and many in between.
UPDATE: Mark Tushnet has these comments at Balkinization: Originalism as Performed by the Supreme Court. From the introduction:
Eric Segall has an interesting post on "Originalism in the Classroom?" I thought it might be interesting to try to figure out how one might teach originalism in a standard doctrinal course on the First Amendment. My text is Justice Alito’s discussion of the respondent union’s “originalist defense” in the recent Janus decision.
What follows is pretty harsh, but I agree; Janus was not, in my opinion, originalism's finest moment. But the selection does not appear very fair to originalism, because I don't regard Janus as typical of originalist Supreme Court opinions, and I doubt Professor Tushnet chose it at random. Perhaps he could balance it with an opinion like Justice Scalia's concurrence in Noel Canning, which (agree with it or not) I think is much more typical of originalist judicial reasoning.
Though I generally agree with the post, I think Professor Tushnet is wrong on one point. He criticizes the Janus majority for appealing to precedent: "Strictly speaking, originalism as such shouldn’t care about the consequences of following the historical materials where they lead. But, perhaps there is some “consequences matter” constraint on originalism. The usual example is paper money. One might expect, then, a discussion of why these consequences of originalism are more significant than other consequences, for example, in Heller." But most versions of originalism allow some role for nonoriginalist precedent. The routine criticism of originalist judges for incorporating precedent (mostly from the left) persistently and irresponsibly ignores this aspect of judicial originalism. (But, I would agree that judicial originalism needs a better theory of precedent).
In the current issue of National Affairs, William Haun: The Virtues of Judicial Self-Restraint. Here is the introduction:
The modern conservative legal movement began with a principal focus on judicial self-restraint. Decades of a burgeoning federal criminal code, expanded delegation and deference to administrative agencies, and an increasingly prominent libertarianism within the conservative legal movement, however, have facilitated a shift in originalism's emphasis. Rather than focus on constraining the courts' interference with democratic choice, originalists now advocate empowering the courts to police the coordinate branches and the states. The main goal underlying this shift — protecting the individual liberty guaranteed by the Constitution — is a goal originalism rightly values. But this new focus does present the serious risk that the next generation of conservative legal minds will either not appreciate the role judicial self-restraint plays in originalism, or — if certain libertarian originalists have their way — the next generation will simply discard judicial self-restraint altogether.
As early legal conservatives like Judge Robert Bork and Chief Justice William Rehnquist understood, originalism without judicial self-restraint is not originalism at all. Applying the original meaning of the Constitution's limits on power protects individual liberty, but those limits do not create a self-governing community or provide answers to every challenge self-government faces. Rather, those limits constitute the fundamental boundaries that no government committed to liberty can cross. Self-government is therefore facilitated by another, complementary form of liberty, the liberty that judicial self-restraint protects: the liberty to make laws.
As the guarantor of the liberty to make laws, judicial self-restraint is more than a critique of "judicial activism" or "legislating from the bench." It is the conclusion of deep insights into human nature and the nature of law. Writings from Yale law professor Alexander Bickel, who informed Judge Bork's articulation of judicial self-restraint, demonstrate that the liberty to make laws is what defines a self-governing people. Genuine communities are not sustained solely by ideological commitments to abstract theories of rights. Adherence to a certain conception of individual liberty depends not merely on philosophical principles, but on what Joseph Schumpeter referred to as the "extra-rational" attachments of family, neighborhood, religious associations, and interpersonal connections that build allegiance to a nation and its ideals. Individual liberty therefore depends upon the liberty of a people to create a community in law that reflects their values.
By confining judicial analysis to what the American people adopted in text when they originally made law (i.e., when they adopted the Constitution), judicial self-restraint ensures that courts cannot invalidate or impose upon the liberty to make laws. Judicial self-restraint's respect for the liberty to make laws also gives focus to the originalist inquiry. Since Alexander Hamilton responded to Brutus in the Federalist Papers, there has been a debate over the harmony of judicial review and self-government. By insisting on judges that are committed to an originalism that is explicitly informed by judicial self-restraint, the challenge presented by that debate can be met.
And from later on:
An originalism that is explicitly committed to judicial self-restraint resolves the counter-majoritarian difficulty. This originalism respects both individual liberty and the liberty to make laws, and thus is the only judicial philosophy, as Chief Justice Rehnquist put it in "The Notion of a Living Constitution," that is "consistent with [a] democratic philosophy of representative government." Under this approach, only the liberty to make laws (as exercised by the American people when they adopted a given constitutional provision) could invalidate a subsequent exercise of the liberty to make laws (by a subset of the American people in a statute or other legislation). Where the Constitution does not speak to an issue — because the controversy simply could not have been envisioned by the founders, or the closest historical analogue is too attenuated, or the power sought to be exercised is simply not the "judicial power" Article III vests in courts — the judiciary must let the people decide how to exercise the liberty to make laws.
This originalism therefore protects the liberty to make laws from judicial encroachment, while also preserving the integrity of the Constitution's individual-liberty guarantees by applying them as they were understood by the American people. Any other philosophy, Rehnquist observed, makes judges something other than "keepers of the covenant; instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country."
And this, relevant to some recent posts here:
Judicial self-restraint still provides originalism with political talking points; selecting judges who will only "interpret the law, not make it," deriding "judicial activism," and admonishing judges that "legislate from the bench" are all part of our political lexicon regarding the role of the courts. But as discussed above, judicial self-restraint provides much deeper insights into human nature and the role of law than mere sloganeering. Those insights risk being discarded by the recent, considerable shift in originalist emphasis from constraining the judiciary to empowering the judiciary to constrain the other branches of government.
Several explanations have been offered for this shift. One reason is the supposed academic "turn" in originalism: the change from an approach appealing to the citizenry at large to one that is developed by academics, with their colleagues and judges as the primary audience. As Thomas Colby detailed in "The Sacrifice of the New Originalism," the approach to originalism articulated by Bork and Rehnquist in the 1970s and '80s underwent transformations in the latter decade that enhanced its intellectual appeal. Some of these changes improved originalist methods; perhaps the most widely accepted change was the shift from searching for the founders' "original intent" to the Constitution's "original public meaning." But, Colby argued, "[i]ntentionally or not," subjecting originalism to the academy made it more like an abstract theory that, in turn, "effectively sacrificed [its] promise of judicial constraint."
Another reason is the rise of libertarians and even liberals adopting originalist approaches, which is arguably connected to the academic "turn" given their prominence in academia relative to traditional conservatives. In an essay at the website Law and Liberty, law professor Jesse Merriam characterizes the critical turn in originalism as one that infused it with libertarian premises about the nature and source of rights (which are inherently contractarian). While some have disputed aspects of Merriam's account, it would be very hard to argue that the prominence of libertarian law professors and scholars in expounding originalism has not affected how originalists, especially younger college and law students, think about originalism.
(Thanks to Mark Pulliam for the pointer).
At Legal Theory Blog, Larry Solum has this entry in his "Legal Theory Lexicon": The New Originalism. From the introduction:
The phrase “New Originalism” was first used Evan Nadel in 1996, but the phrase was popularized by Randy Barnett and Keith Whittington a few years later. Of course, this phrase is just a name that theorists use, and it has been used in different ways. For our purposes, we can think of the New Originalism as a subfamily of originalist theories that accept the Fixation Thesis and the Constraint Principle, and reject the old originalist idea that a particular kind of intention (the purposes or expectations of the framers) is the touchstone.
Some, but not all, of the new originalists add the following two ideas:
These two ideas have several implications, but one implication is especially important. The Old Originalism is associated with an antipathy to judicial discretion in constitutional interpretation and construction. One of the motives for the Old Originalism was the belief that the Warren Court had broken the tether between the constitutional text and constitutional law and that judges were now importing their own moral and political beliefs into constitutional doctrine. Ideally, originalist judging would be both constrained and restrained. Constrained, in that the original meaning would provide an objective basis for the resolution of all or almost all constitutional cases. Restrained, in that originalist judges would rarely use the power of judicial review to strike down legislation or executive action.
The ideas associated with the New Originalism did not fit the old idea of perfect constraint and restraint. First, public meaning seems less constraining than original intent. The public meaning of some provisions of the Constitution is vague (at least on the surface). Phrases like “freedom of speech” or “legislative power” may have a core of determinate meaning, but they also seem to have a penumbra—a set of borderline cases. New Originalists call this area of underdeterminacy, “the Construction Zone.” If there is a substantial construction zone, then the constitutional text cannot do all the work of deciding constitutional cases. Moreover, some of the theorists who are called “New Originalists” have theories of constitutional construction that permit normative considerations to enter into the decision of cases inside the construction zone: Randy Barnett and Jack Balkin are prominent examples.
Professor Solum is a leading (perhaps the leading) theorist of New Originalism, so I hesitate to disagree with him on its definition. But still, I wonder about this definition. Under it, Justice Scalia was a New Originalist. (In 1987). That does not capture the way I think about New Originalism. I see it as much newer than that -- more a 21st century phenomenon, associated (as he says) with scholars such as Randy Barnett, Jack Balkin and Keith Whittington. To me, its central characteristics are (a) the interpretation-construction distinction, which I would call an essential rather than an optional attribute, and (b) strong skepticism about the framers' expected applications as evidence of public meaning. Using these characteristics, Justice Scalia was not a New Originalist, and neither were most of the originalist writings of the 1990s and early 2000s.
Perhaps, though, what I'm describing is the New New Originalism. There's no doubt that Scalia pioneered a break with the Old Originalism that (as Professor Solum says) emphasized framers' intent and judicial restraint. My point is that there was another break in the late 200os (0r so) that departed from Scalian originalism. The question is which of these breaks should be labeled the shift to New Originalism.
Josh Blackman (South Texas College of Law Houston) has posted The Power to Exclude on SSRN. Here is the abstract:
Under modern doctrine, the federal government has an inherent authority to exclude aliens from entering the United States. In contrast, states lack any power to exclude aliens from entering their own borders. Though well settled, this dichotomy stands in tension with our Constitution’s structural design. It is a bedrock principle that the federal government only has those powers that are enumerated in the Constitution. In many respects, modern doctrine inverts our constitutional order. The states, which have the strongest claim to a general power to exclude cannot exercise that power. Congress, which has the weakest claim to an inherent power to exclude, can exercise that power with few discernible limits.
Does the federal government have the power to exclude aliens? Yes, though the answer is not as straightforward as many of us have assumed. There are four plausible candidates in Article I to support an exclusionary power: the Naturalization, Commerce, Law of Nations, and Migration of Importation Clauses. However, none of these clauses, standing by itself, supports an enumerated power to prevent foreign aliens from entering the United States. Rather, the strongest argument in support of an exclusionary power is an implied authority. It is both “necessary” and “proper” for Congress to restrict entry to aliens in order to more effectively naturalize citizens and, perhaps, regulate commerce. This authority is incidental, and does not “flatten the principle of state sovereignty.” Therefore, the exclusionary power does not amount to a “great substantive and independent power” that improperly aggrandizes Congress’s reach over states, their officials, and individual Americans. This authority belongs solely to Congress, and is not an inherent executive power.
(Via Josh Blackman's Blog).
Professor Blackman presented this paper at this outstanding conference at Michigan State University over the weekend, and I was invited to comment on it. I largely agreed with it and made three main points on its substance:
(1) I completely agree that the Supreme Court's idea of inherent power over immigration is inconsistent with the Constitution's original meaning and indeed completely contrary to the document's basic design.
(2) I agree that (a) the migration or importation clause strongly implies that Congress has substantial power over the entry of aliens, and (b) that the necessary and proper clause combined with the naturalization clause is likely the best source of this power. (Aside: I am still thinking over the role of the law of nations clause, as suggested by Robert Natelson and Andrew Hyman; our panel did not focus much on that clause). I'm doubtful, though, that the clauses on which Professor Blackman relies can give Congress complete power over entry of aliens -- for example, over aliens who wish to enter not for the purpose of obtaining residency or citizenship and not for commercial purposes.
(3) I think the case for executive power to refuse entry to aliens is stronger than he indicates, though I'm less persuaded of it than I once was.
In The New York Times, Barry McDonald (Pepperdine): Should the Supreme Court Matter So Much? From the introduction:
If you paused during the heated battle over Brett Kavanaugh’s Supreme Court nomination to ask yourself whether it made any sense for the appointment of one individual to one position in our government to matter so much, let me assure you: The answer is no. It doesn’t make any sense.
Why did Justice Kavanaugh’s confirmation matter so much? Because the Supreme Court has come to matter so much — indeed, because it has come to matter too much. The court has become a political actor that wields excessive power in our democracy. The uproar over the Kavanaugh hearings was, at bottom, a reflection of that unfortunate fact.
Americans have become so used to having the Supreme Court decree the country’s policy on such vital matters as abortion, gun rights, same-sex marriage and campaign finance that they assume this is how the court is supposed to function. But that assumption is mistaken.
Our nation’s founders would blanch to see how different the court is today from their conception of it. Only if we can figure out how to restore the Supreme Court to its intended role can we avoid a future in which a court nomination continues to be capable of tearing our country apart.
What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).
And from later on:
Yet in 1958, in the face of defiance by Southern states of its 1954 ruling in Brown v. Board of Education requiring the desegregation of public schools, the Supreme Court declared that it was the “supreme” interpreter of all things constitutional in our system. Forgetting the court’s confessed sins during the pre-New Deal era, the more liberal members on the court started inferring rights in the Constitution based again on vague notions of due process “liberty.”
First there was an inferred right of contraceptive freedom. Then there was an inferred right of abortion, then of sexual privacy and then of same-sex marriage. Not to be outdone, the more conservative justices on the court, drawing on the First and Second Amendments, have discovered a personal right to have guns, a corporate right to spend unlimited money in American elections and, just this past summer, a worker’s right to not help pay for collective bargaining by a union.
When such vital matters of social policy are determined by a handful of unelected justices and their interpretations of malleable terms like “liberty” and “free speech,” the American people are robbed of their ability to have a say about the rules that dictate how they live. One way or another, the Supreme Court needs to recover the founders’ vision of its modest role in our system of self-government. When it is not clear to justices of both ideological stripes that the Constitution requires a ruling that will have major public policy implications, the court should leave it to the people to decide for themselves.
(Via How Appealing).
This is a powerful brief for judicial restraint. Unlike a number of reflexive liberal turns to judicial restraint after Justice Kavanaugh's confirmation, Professor McDonald acknowledges that true embrace of judicial restraint requires rejection of a large part of left-liberal constitutionalism of the past 50 years. I have three quick comments.
First, I'm not sure about the originalist foundations of this argument. Perhaps the framers' test was that courts should rule only against laws and executive actions only when the Constitution was "clearly transgressed." But the early federal courts, including the Marshall Court ruled against the political branches and especially the states a fair amount, and there's a fair amount of founding era commentary about courts policing the constitutional boundaries of government. Very strong judicial restraint as a consequence of originalism remains, I think, unproven.
Second, although Professor McDonald commendably lists a number of cases from both sides of the political spectrum he thinks are problematic, he avoids the really hard ones. What does he think about Brown v. Board, Loving v. Virginia, West Virginia v. Barnette, and similar interventionist but widely accepted (by both sides) cases? These are the biggest challenges for judicial restraint.
Third, there have been a number of post-Kavanaugh proposals to limit the power and role of the Court. Judicial restraint seems to me to imply this one: an amendment declaring that the Court shall not find any actions of the state or federal executive or legislative branches unconstitutional absent a supermajority vote (of 6 or maybe 7 of 9 Justices). My guess is that most people -- perhaps even most people who say they favor judicial restraint -- would not favor this rule. But it would be a way to test the depth of commitment to the project of scaling back the Court's power.
Elizabeth Reese (U.S. Court of Appeals for the Seventh Circuit) has posted Or to the People: Popular Sovereignty and the Power to Choose a Government (39 Cardozo L. Rev. 2051 (2018)) on SSRN. Here is the abstract:
To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. However, in casting the Tenth Amendment as the states’ rights amendment, these textualists have inexplicably glossed over the Tenth Amendment’s final four words, which reserve powers to “the people.” This Article highlights this inconsistency and argues that this omission ignores a vital structural protection against federal and state tyranny. Viewed through the same textualism that reinvigorated state sovereignty, the Tenth Amendment’s final words cannot be redundant or superfluous but rather define and protect the people as a sovereign body capable of wielding specific powers— particularly those powers that the Constitution places beyond the reach of our governments. Primarily, the Tenth Amendment protects that power which is at the heart of popular sovereignty as well as the foundation of our democracy, the power of the people to choose their government. The Tenth Amendment ought to protect popular sovereignty—as it protects state sovereignty—by serving as a source for robust judicial review of federal and state laws that infringe on popular sovereignty. Recognizing this overlooked portion of the Tenth Amendment could alter current legal doctrine surrounding voting rights by treating free, fair, and accessible elections as a matter of competing sovereign powers rather than individual voting rights. By ignoring the people in the Tenth Amendment, American jurisprudence has ignored a vital structural protection against federal and state tyranny and risked governmentdriven erosion of democracy in America
At the Yale Journal on Regulation's Notice and Comment Blog, Aditya Bamzai & David N. Goldman: The Takings Clause, the Tucker Act, and Knick v. Township of Scott. From the introduction:
Last week, the Supreme Court heard oral argument in Knick v. Township of Scott, a case that presents the question whether “the Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank, requiring property owners to exhaust state court remedies to ripen federal takings claims.” ... The Williamson County Court contended that “no constitutional violation occurs until just compensation has been denied” and that the state government had not denied just compensation until its state tribunals had spoken.
... As Justice Kagan put it (on page nine of the transcript): “[W]hen exactly [does] the violation occur and why [does] it occur before the state denies compensation in the inverse condemnation proceeding? . . . Is that because — are you saying that’s because the right to compensation is immediate; in other words, there’s a right to compensation contemporaneous with the taking?”
As we will explain in a forthcoming article on The Remedial Structure of the Takings Clause, this question, as well as the proper scheme for enforcing the Takings Clause generally, was the subject of debate for well over a century before Williamson County. James Kent, a master in chancery in New York who had significant influence on the development of American equitable remedies, discussed the issue in his Commentaries on American Law. “The better opinion,” he wrote, “is, that the compensation, or offer of it, must precede or be concurrent with the seizure and entry upon private property under the authority of the state.” “The government is bound” under the Takings Clause, Kent continued, “to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceed without taking these steps, their officers and agents may, and ought to be restrained by injunction.” (To our knowledge, neither Kent’s Commentaries, nor the cases discussed below, have been brought to the Court’s attention in the briefing in Knick, nor analyzed in the sizable scholarly literature on Williamson County.)
This post will address how Chancellor Kent’s logic plays out in claims against the federal Government, how it plays out in claims against state officers and municipal governments, and the implications for Knick and other related issues.
Christopher R. Green (University of Mississippi - School of Law; The Originalism Blog) has posted Our Bipartisan Due Process Clause (George Mason Law Review, forthcoming) on SSRN. Here is the abstract:
What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length—but in 1862, rather than 1866.