Lynn Uzzell on Originalism and Madison's Notes (with a Response by John McGinnis)
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell has a two-part post on the reliability and significance of Madison's Notes: A Pox on Both Your Houses, Part I: Anti-Historical Originalists and A Pox on Both Your Houses, Part II: Anti-Originalist Historians.

From the first:

... [T]wo very different camps — originalist legal scholars and anti-originalist historians — unite in promoting some dubious history about Madison’s Notes of the Constitutional Convention. Each side of the debate has contributed to the debunking of Madison’s Notes, apparently in pursuit of its own agenda.


Crucial to the credibility and respectability of originalists is a credible respect for history in both of its primary meanings. First, history means the actual events that took place in the past. Of special interest to the originalist would be the persons, arguments, and activities related to the formation, adoption, and early application of the Constitution.  The second meaning is the scholarly discipline of studying the extant evidence of those past events to form a coherent narrative about them.

And both senses of history, at least insofar as the history of the Constitutional Convention is concerned, have been under threat since the 2015 publication of Mary Sarah Bilder’s book, Madison’s Hand: Revising the Constitutional Convention. This book is suffused with imaginative conjectures about how Madison “doctored” his Notes of the Constitutional Convention in order to improve his own image, yet it offers very little in new evidence—at least, very little evidence that will stand up to careful scrutiny.

And further:

That the anti-originalist historians have warmly embraced a narrative that discredits the most important historical records about the Constitution’s formation is easy to understand. But the response by some originalists is more perplexing to the outside observer. Georgetown law professor Lawrence Solum and at least one other originalist have privately confided that they believe that Madison’s Hand “helps us.” More publicly, Professor Solum has enthused: “Every constitutional law scholar needs to read this book. And the judges, lawyers, legal scholars, and historians need to rethink its approach to the Framing. Highly recommended!”  Other originalists have been conspicuously indifferent to the book.

By way of contrast, scholars who are more thoroughly acquainted with the history of Madison’s Notes — such as Gordon LloydW. B. Allen, Paul Rahe, and myself — have given compelling reasons to be highly skeptical of the most provocative claims made in Madison’s Hand.  Professor Solum did not offer his reasons for insisting so strenuously that not only historians, but also judges, lawyers, and legal scholars need to read this book and rethink the Framing. However, it is difficult not to suspect that his brief but fervent endorsement arises from some mixture of ignorance of and disdain for the history of the Constitution’s formation. In other words, not only are the details of this epoch unknown to originalists but, as far as they’re concerned, they’re not worth knowing. Therefore, a book suggesting that the history is less knowable is all to the good.

The growing tendency among originalists to spurn constitutional history is a mistake if they hope to appeal to non-specialists who are not already sold on originalism ...

John McGinnis responds: Originalism Deploys History Under Legal Discipline.  It begins:

Lynn Uzzell has written a broadside against both anti-historical originalists and anti-originalist historians. I am one of the originalists criticized. But more importantly, the picture Uzzell paints of originalism as practiced is unrecognizable to me.

Originalism today is deeply historical in its effort to recover the meaning of the Constitution as it would have been understood by the Framers of the Constitution. Indeed, the brand of originalism which Mike Rappaport and I formulated requires following the methods of interpretation that would have been deemed applicable at the time—a subject that obviously requires research into legal history. But more generally, as Mike Rappaport and I have recently discussed, scholars interpreting particular constitutional provisions today undertake deep dives into the historical usage of its legal terms, like “due process” or “cruel and unusual punishment.” They have also applied legal interpretive rules that and they have supported their use by showing that the Framers themselves used them. It is hard to think of more pro-historical originalism than this.

And from further on:

Thus, while I do not I agree with Larry Solum that Mary Sarah Bilder’s claims, even were they true, about Madison, are likely to advance originalism as a positive enterprise, they not likely to dramatically revise our interpretation of the Constitution’s original meaning. It is largely fixed by other historical evidence more relevant to the way legal meaning was determined at the time. That does not mean that the private intentions of the Framers cannot point to the relevant context of the provision. Larry Solum, who Uzzell also criticizes, says as much here, and originalists do make use of such statements for these limited purposes.

One quick sidenote (which I think supports John McGinnis):  in my investigation of Justice Scalia's methodology I conclude that he made only infrequent use of Madison's notes -- see here, Part II.A (finding only eight opinions "citing the Convention debates in support of a substantial argument" and concluding that "the course of the Convention and the discussions within it do not play as central a role in his opinions as they do in some originalist scholarship").


Nicholas Zinos: Fundamental Rights in Early American Case Law
Michael Ramsey

Nicholas Zinos (Mitchell Hamline School of Law) has posted Fundamental Rights in Early American Case Law: 1789-1859 (forthcoming British Journal of American Legal Studies Vol. 7) on SSRN.  Here is the abstract:

Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.


James Durling: The District of Columbia and Article III
Michael Ramsey

James Durling (Yale Law School, Students) has posted The District of Columbia and Article III on SSRN.  Here is the abstract:

Today, nearly everyone assumes that the District of Columbia is an exception to Article III. They assume, in other words, that Congress may create non-Article III courts in the District and staff them with judges who lack salary protections and life tenure. Indeed, forty-five years ago, the Supreme Court specifically upheld the newly created non-Article III court system in the capital. And since that decision, nearly every major scholar of federal courts has accepted the District’s Article III exceptionalism. 

This Article challenges the current judicial and scholarly consensus. Drawing upon extensive historical research, it shows that both the original meaning of the Seat of Government Clause and 170 years of historical practice make clear that Article III’s judicial protections apply fully to the District. It further shows that the various functional justifications typically used to defend adjudication by non-Article III tribunals do not apply to the courts in the capital. In short, this Article establishes that the current D.C. local court system is unconstitutional.

For the thousands of D.C. residents who have to go before non-Article III courts each year, this conclusion should be significant in its own right. Indeed, the history of non-Article III courts in the District reveals the concerning political influence of crime and race on Congress’s decision to create non-Article III tribunals in the capital. But this Article’s conclusion also has broader implications outside the Seat of Government. Perhaps most importantly, it identifies a new principle—Article III’s “one-way ratchet”—that would limit the use of non-Article III tribunals in other contexts. And more broadly, the history of the District of Columbia’s relationship to Article III may provide us with new substantive and methodological insights on our Article III history and jurisprudence.

Seems right to me, as an original matter.

(Via Larry Solum at Legal Theory Blog).


Stephen Presser on Raoul Berger
Michael Ramsey

At Law and Liberty, Stephen Presser (Northwestern): The Coming Resurrection of Raoul Berger? A Remembrance of Government by Judiciary.  It begins: 

Raoul Berger (1901-2000) was the most important and daring voice in favor of an originalist approach to the Interpretation of the Constitution in the last third of the twentieth century. He was not, like many other academic theorists, someone who spent all his professional years as a tenured member of a prestigious faculty, although he was, for a few years, a professor at the law school of the University of California at Berkeley, and, following that, was Charles Warren Senior Fellow in Legal History, in residence at Harvard Law School. Before he was associated with law schools, however, Berger had been a successful concert violinist, and then an equally successful practicing lawyer and government bureaucrat. Once he embarked on his third or fourth (depending on how one counts) career, as a legal scholar, he achieved his greatest fame.  Berger first made an indelible mark for monographs on impeachment and executive privilege, works which quite clearly suggested unpardonable excesses on the part of the Republican, Richard Nixon. That work was of great comfort to Democrats and liberals, but Berger’s scholarship was non-partisan. When he embarked on the research that resulted in Government by Judiciary, and that consumed him for the last three decades of his life (he lived to be just shy of 100, and wrote almost until the end), the progressives were dismayed and the conservatives jubilant, because Berger, as an originalist, provided a remarkable historical pedigree for the notion that progressive jurists had, for many years, wrongly construed the Constitution.

Berger’s brand of originalism was a bit different from that of the most important federal judges, such as Antonin Scalia, but it was clear that Scalia owed a lot to Berger. Berger believed in what he called “original intention,” while Scalia (and, in time, most originalists) embraced what came to be known as “original understanding.” Ostensibly this was a difference between the belief that we should seek the subjective intention of the Constitution’s framers, and the notion that it was the objective meaning of the words they used which ought to guide us. Hence Scalia’s frequent recourse to contemporary dictionaries, and Berger’s frequent use of opinions expressed in contemporary debates, as, for example, in his masterwork, Government by Judiciary.

In practice there may not really be much of a difference between Scalia and Berger, since, for the most part, one’s subjective meaning is consistent with the contemporary understanding of the words used. Nevertheless, since one really cannot easily look inside the skulls of drafters, Berger’s views were something of an easy target for some critics, who dismissed him as naïve and misguided. Time, however, has tended to support Berger and tarnish his critics, as Berger’s thorough sifting of the primary sources and his relentless defense against those whom he called the “activists” (the defenders really of judicial law-making) pretty thoroughly demonstrated the brilliance and correctness of his basic points.

Berger has become something of a stock example for the discredited "old orignialism."  As this post suggests, a more nuanced account of Berger and his contemporaries would be useful in appreciating the origins of modern originalism.

Thanks to Mark Pulliam for the pointer.


A Reply on New Originalism
Eric Segall

[Editor's note: this is a guest post by Eric Segall (Georgia State) in response to this post from yesterday. As always, we welcome responsive guest posts from anyone whose work is discussed on this blog.]

I always appreciate it when Mike Ramsey comments on my originalism work. His thoughtful response to my critique of Professor Solum's "Surprising Originalism" draws a distinction between a "mistake in application" of a rule and a mistake in "rule selection." I agree there's a difference, but not one that is material to the originalism debate or my belief that New Originalism and Living Constitutionalism are indistinguishable (there are of course many originalists who don't accept the premises of New Originalism).

Mike is suggesting that New Originalists think judges should be bound by the selection of rules in the Constitution but not how the ratifiers thought those rules would be applied.  The problem with this distinction is that few constitutional rules that lead to litigation are application free. Whether we are talking about freedom of speech, equal protection, establishment of religion, or cruel and unusual punishments, most, if not all the time, judges will have to apply rules with judgment. If judges (under New Originalism) are allowed to ignore what the people in 1787 or 1868 thought about the applications of the vague rules they set forth to specific facts, then judges can update the Constitution as they see fit, i.e., like a living constitutionalist.

Moreover, the application of vague rules to questions such as the validity of state bans on SSM or bans on women in combat involve value differences not fact differences. And few scholars or judges want to apply 1868 values concerning gender, sexual orientation, and most other modern constitutional problems. Thus, living constitutionalism and New Originalism merge for virtually all litigated constitutional questions that make their way to court.

Barnett, Bernick, and Gorsuch on Coke
Andrew Hyman

Back in March of this year, Mike Ramsey mentioned a new article by Randy Barnett and Evan Bernick titled "No Arbitrary Power: An Originalist Theory of Due Process of Law.”  I don’t aim to critique that whole article here, but would like to respectfully disagree here with their treatment of Lord Edward Coke.  Justice Gorsuch said something similar about Coke in the recent 5-4 decision in Sessions v. Dimaya (striking down a statute as being too vague).  I’ll try not to get too deep into the weeds here, but some weediness is unavoidable.

Coke, the great jurist of the Elizabethan and Jacobean eras in England, was highly revered during the founding era of the United States, much as William Blackstone was.  But it’s easy to misunderstand Coke, and I think that’s what Barnett and Bernick (as well as Gorsuch) have inadvertently done here.

The constitutional historian Richard B. Bernstein has accurately observed that Coke “wrote in the crabbed, thorny prose of the seventeenth century,” and Coke did so to such a degree that Thomas Jefferson once complained: “I do wish the Devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life.” Bernstein says that Jefferson’s view of Coke was “shared with nearly every law student of his time.”  That’s not to say that they did not admire Coke greatly, but rather that they found studying Coke very difficult.  We are now much farther removed from Coke than Jefferson was, which should give us great pause when making pronouncements about what Coke wrote.  That is why I will maintain an open mind about this matter, even as I present some evidence that seems compelling.

Here’s the passage of Coke in question, commenting on Chapter 29 of Magna Carta:

Nisi per Legem terrae.  But by the Law of the Land.  For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8. where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces of the Law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.  Without being brought in to answere but by due Proces of the Common   law.   No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land.  Wherein it is to be observed, that this chapter is but declaratory of the old law of England. 

Keep in mind that, in the same volume, Coke explained the term per legem terrae as “by the Common Law, Statute Law, or Custome of England” (Coke elsewhere wrote that "the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them").  According to Barnett and Bernick (emphasis as in original):

By identifying due process of law with the law of the land, Coke incorporated into the former phrase the totality of England’s constitution, consisting  in Common Law,” “Statute Law,” and “Custome.” Due process meant both procedures and personnel associated with the common-law courts and the application of valid law—an enactment with content that was inconsistent with the “old law of the land” could not be applied to an individual.

In the recent 5-4 decision in Sessions v. Dimaya, Justice Gorsuch wrote something similar (citations omitted):

[I]n my view the weight of the historical evidence shows that the [Due Process] clauses ought to ensure that the people’s rights are never any less secure against governmental invasion than they were at  common  law.    Lord Coke took this view of the English due process guarantee…. And many more students of the Constitution besides -- from Justice Story to Justice Scalia -- have agreed that this view best represents the original understanding of our own Due Process Clause.

If Coke did indeed interpret the Due Process Clause as being violated whenever the legislature offers less protection than did English law that is now hundreds of years old, then such an interpretation by Coke ought to be hugely influential today, and hugely supportive of what Barnett, Bernick, and Gorsuch wrote (blockquoted above).  And, such an interpretation by Coke ought to be hugely empowering for the American judiciary, because any difference between ancient English law and current procedural or substantive law would be subject to ongoing judicial approval or rejection, to assure that current law is just as good as old English law was.  Nevertheless, for better or for worse, what Barnett and Bernick have attributed to Coke is not what Coke actually meant.  At the outset of the same volume, Coke wrote the following:

[T]he prudent Reader may discerne what the Common Law was before the making of every of those Statutes, which we handle in this work, and thereby know whether the Statute be introductory of a new Law, or declaratory of the old, which will conduce much to the true understanding of the Text itselfe.

This clarifies, for a prudent reader seeking true understanding, that when Coke later referred to the Edwardian statute “37 E. 3. Cap. 8” (which Coke meant to cite as “37 E. 3. Cap. 18”), and when Coke said that this Edwardian statute is “declaratory of the old law of England,” he meant that the statute was not saying something new but rather was reiterating what had already been said in Magna Carta.  The phrase “declaratory of the old law” did not mean “incorporating all pre-existing law,” as Barnett and Bernick would have it, although admittedly they have some very distinguished company in this misunderstanding of Coke.

It may well be that Coke made mistakes beyond misciting the Edwardian statute, but there is some truth to the humorously cynical view that Coke’s mistakes were the common law.  In any event, the mistakes of twenty-first century scholars (myself included) are surely not to be considered to be the ancient common law of England.


A Response to Eric Segall on New Originalism
Michael Ramsey

Last week I noted Eric Segall's post at Dorf on Law in which he criticized "New Originalism" as no different from living constitutionalism.  Commenting on a new article by Larry Solum, Professor Segall concluded: "The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism."  This is because, he says, "originalism, in [Solum's] hands, allows judges to update the application of the Constitution’s broad phrases over time as facts and values change."

Though I'll leave it to Professor Solum to respond specifically on his views, here I want to explain why I think Professor Segall is confusing two types of "updating" and thus reaching a stronger conclusion than is justified.  In sum, he's confusing mistakes in rule selection and mistakes in rule application.  Here's a core part of Segall's discussion, referencing the 1873 case Bradwell v. Illinois, in which the Court held that the Fourteenth Amendment did not entitle women to be members of the bar:

We know that the people living in 1873 thought the original public meaning of the Fourteenth Amendment was that women could be barred from practicing law. Solum says we are not bound by that meaning today because the people living then were wrong about the facts [regarding women's intellectual equality with men]. If he is right, then we are not bound by what the people in 1873 thought about gays and lesbians, abortion, the administrative state (such as it existed then), and the relative dangerousness of guns compared to concerns about public safety. In other words, Solum’s brand of originalism ... leads to a state of affairs where the meaning of the text is not fixed at ratification (as applied to hard facts), and we are obviously not bound by what the people at the time thought about how that meaning applied to practical legal problems. In other words, originalism and non-originalism end up in exactly the same place in the context of real life litigated cases.

Solum argues ... that the Court’s lax rules on summary judgment whereby judges dismiss civil cases before they get to the jury might be inconsistent with the original public meaning of the Seventh Amendment, which provides that in “Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” But the people who ratified this provision lived in a much less litigious world than we have today. They may well have been under the factual misunderstanding that our judicial system can tolerate the time it would take to try all civil cases without the current rules for summary judgment. Or not. The point is that if we allow judges to revisit the factual assumptions upon which the constitutional text was based, then we are in effect changing the meaning of that text, something judges do on a daily basis. If this is originalism, then everything is originalism.

But I think the Bradwell example and the Seventh Amendment example are different. 

In the first example, we are supposing for purposes of discussion that the framers of the Fourteenth Amendment adopted a rule something like "Woman shall be treated equally with men except where there are relevant differences between them," and that in applying that rule they thought women were intellectually less capable with respect to practicing law (thus the result in Bradwell).  New Originalism says: We are bound by the rule that "woman shall be treated equally with men except where there are relevant differences between them" but we are not bound by the (erroneous) factual conclusion that  women are intellectually less capable with respect to practicing law.  Thus we can now say Bradwell was wrongly decided and still be (new) originalists.  This is an example of a framers' mistake in application of a rule.

In the second example, we are supposing for purposes of discussion that the framers of the Seventh Amendment adopted a rule something like "judges shall not take factual determinations away from the jury on summary judgment" and that the framers of the Seventh Amendment made a mistake (we now believe) in thinking that this would be a sensible way to run a civil justice system in a complex society.  But (without meaning to speak for Professor Solum) I think the New Originalist conclusion is (or should be) that, notwithstanding that mistake, we are still bound by the rule that "judges shall not take factual determinations away from the jury on summary judgment."  The framers' mistake here is not a mistake of application; it is a mistake of rule selection.  And we are bound by the rules they selected, even where we think they were mistaken.

Now Professor Segall is right that this still leaves a lot of ground in which New Originalists can "update" constitutional outcomes (and that is one place where more traditional, Scalia-style originalists will disagree with them).  But it does not mean that New Orignialism collapses into living constitutionalism.  The mistake-in-rule-selection category is one place it does not.

Here's a similar example, taken from a post by Ilya Somin.  Professor Somin acknowledges (at least for purposes of discussion) that the original public meaning of the executive power clause created a unitary executive for matters involving prosecutions.  But, he says, that is a bad rule for modern conditions because the executive has become so much more powerful than the framers imagined (in large part, he says, because of departures from the original design elsewhere).  Thus, he says, we should reject the unitary executive today.

Again, I think this is an example of a mistake in rule selection.  The framers erred (we will assume) in thinking that the unitary executive would be the right design for the future.  But nonetheless, that's the rule they chose.  New originalism's mistake-in-application approach does not allow updating here, because it's not a mistake in application. (To be clear, Professor Somin doesn't make a New Originalist argument, so I'm not quarreling with his reasoning, just saying that a New Originalist should not accept his conclusion).  So again, this is an example where living constitutionalism and New Originalism diverge.


Andre LeDuc: Originalism's Claims and Their Implications
Michael Ramsey

Andre LeDuc (Independent) has posted Originalism's Claims and Their Implications (Arkansas Law Review, Vol. 70, No. 4, 2018) on SSRN.  Here si the abstract:

In this article I explore six of the most fundamental disagreements between originalism and its critics over originalism’s implications. These implications — and the implications of the critics’ alternatives — figure prominently in the arguments advanced in the debate. Reconstructing these arguments in their strongest possible form permits the confusion and misdirection in the debate over originalism to emerge.

First, originalism argues that it best comports with our republican democracy. Judicial review, performed by unelected judges with lifetime appointments, may appear inconsistent with the fundamental principles of our democratic republic. Originalism argues that deference to the original understandings or expectations with respect to the Constitution answers this challenge. The critics offer three principal replies to that claim. First, the originalist strategy of finding the original understanding and intentions with respect to the Constitution is rejected as undoable. Second, even if and to the extent that such intentions and understandings existed, the originalist project of finding meaning is rejected as blinkered and mechanical. Third, Bobbitt argues that the originalist premise is flawed: there is no need to reconcile judicial review and constitutional interpretation with democracy. 

Second, originalism claims that it offers the only neutral method of constitutional interpretation. Critics deny the argument from discretion on a number of grounds. Third, originalism claims to offer a better account of the textuality of the written Constitution. Critics reject the arguments for that claim. Fourth, I examine how originalism limits constitutional change. Critics argue that the originalists fail to provide a plausible account of constitutional flux. Fifth, I assess the claim that originalism is necessary, and therefore any other inconsistent theory of constitutional interpretation is necessarily impossible. The critics rightly deny this singularly bold and implausible claim. Sixth, I examine the claim that originalism can restore the Lost Constitution, and, in so doing, radically change our constitutional law. Critics of originalism, and even some defenders, have questioned whether originalism can accomplish the mission set out for it. This skepticism is misplaced, at least on the terms on which originalism makes its constitutional argument.

When the claims advanced by originalism and by its critics are examined, they generally prove implausible or uninteresting. The debate over originalism has reached a stalemate on these key issues. The exchanges with respect to these claims offer no reason to rehabilitate or even to continue the originalism debate.


New Book: 51 Imperfect Solutions by Judge Jeffrey Sutton
Michael Ramsey

Recently published, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford Univ. Press 2018), by Judge Jeffrey Sutton (6th Circuit).  Here is the book description from Amazon: 

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties. 

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue-and some others as well-through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions. 

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform.


Randy Barnett and Richard Primus Discuss Loving v. Virginia
Michael Ramsey

At SCOTUSblog, Andrew Hamm reports on a program at the Supreme Court Historical Society: Constitutional interpretation and Loving v. Virginia.  It begins: 

“How would each of you have decided Loving v. Virginia?”

Justice Ruth Bader Ginsburg put this question to scholars Richard Primus and Randy Barnett on Tuesday at the Supreme Court, interrupting their debate over modes of constitutional interpretation. According to Jennifer Lowe, the director of programs at the Supreme Court Historical Society, it’s the first time a justice has spoken up at one of these events.

Loving is a 1967 decision in which the Supreme Court held that Virginia’s anti-miscegenation law violated the equal protection clause of the 14th Amendment. Ginsburg has called Loving “one of the most important decisions” in history, “as important, if not more important, than Brown v. Board of Education,” “the one that, more than anything else, was meant to end apartheid in America.”

On Professor Barnett's response: 

For his part, Barnett defended public-meaning originalism, the theory that “the meaning of the text of the Constitution should remain the same until it’s properly changed by amendment.” He contrasted his approach with other theories of originalism based on the framers’ intentions for a particular amendment or on expectations by the public for how an amendment would be applied. Public-meaning originalism requires extensive historical investigation, but not, unlike other types of originalism, “impossible” counter-factual inquiries.

Barnett criticized Primus’ response to Ginsburg’s question. “I think on Richard’s approach, it’s very difficult to know why Loving wouldn’t have come out the other way before Brown.” “Without Brown being decided, then Loving is obviously wrong,” Barnett continued, because “legal practice and precedent said [Virginia’s law] was constitutional and so it must have been constitutional.”

Under Primus’ approach, Barnett suggested, anti-miscegenation laws “only became unconstitutional … 13 years after 1954,” when Brown was decided. But “if Loving is correctly decided, as it clearly is, in my view,” Barnett argued, “it’s because it was unconstitutional the day the 14th Amendment was enacted,” in 1868.

“Just because people back then didn’t think it was irrational” for a state to pass anti-miscegenation laws, Barnett continued, “doesn’t mean that it was rational” under the actual text of the 14th Amendment. “That was true in 1868 and it was true all the way through,” Barnett said; “it’s only people’s opinions about whether it was irrational that have changed, not the Constitution itself.”

And further:

Throughout the debate, Barnett attempted to distinguish between interpretation and application. “People make mistakes in the application phase,” and “it’s entirely possible for judges to be wrong,” even for decades. “Mostly what courts do,” Barnett had explained earlier, “is apply the doctrines they’ve developed in the past to implement the meaning of the text.” “That is your true living Constitution,” Barnett said, employing a term often used in contrast with originalism, “the living Constitution is how doctrines that have been developed to implement the Constitution have evolved over time.” “They’re only to be reconsidered,” he asserted, “if it’s established that they are somehow undercutting or inconsistent with or not faithful to both the letter and the spirit of the original Constitution.”

Barnett called for “an intellectual division of labor” between historians and judges. It’s “not realistic” that judges do the historical research required under public-meaning originalism, which should be accomplished by historians from law schools, history departments and outside the academy. Barnett noted that “in major cases that have been decided in the last five or 10 years that concern the original meaning of the Second Amendment, the right to keep and bear arms, and the original meaning of the recess appointments clause, justices don’t have to originate their own research. They rely on research that’s been done by others.”

(Thanks to Mark Pulliam for the pointer).