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43 posts from March 2017


A Comment on Originalism and Women Presidents
Michael Ramsey

David Weisberg comments:

I notice that several recent posts [ed.: see here by Chris Green and here by Mike Rappaport] express the view that originalism is the only theory of constitutional interpretation that assures the result that a woman might be qualified to be president, supposedly because one has to revert to a time-dated meaning of "he" to refer to both men and women.  

Of course it is true that there are numerous references to the president as a "he" in the Constitution, but in the one and only provision of the document that sets forth the formal qualifications or requirements of eligibility of the office, "he" disappears and "Person" is used: 

"No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and have been fourteen Years a Resident within the United States."  (Art. II, Sect. 1)

I would also note that the use of "he" to refer to both sexes is not exactly a usage that is relegated to the distant, misty past.  On page 89 of Reading Law (published in 2012), Scalia and Garner write: "The choice is this: Give text the meaning it bore when it was adopted, or else let every judge decide for himself what it should mean today."  Of course Justice Scalia knew there were women on the bench.

 I have published on SSRN a paper demonstrating that Justice Scalia's originalism is irreparably flawed.  See Justice Scalia’s Originalism: A Flawed Theory that Obscures an Important Truth by David E. Weisberg :: SSRN  But, in light of the foregoing, little girls may continue to aspire to high offices, even after originalism has been discarded.

I agree with one implication of this comment, which is that a good bit of what's called originalism is really just textualism (and much of nonoriginalism is also nontextualism, at least in the sense that it does not confine itself to the most plausible reading of the text).  And I agree that presidential eligibility is an example.  Claims that woman could be ineligible to the presidency are not just bad originalism; they are bad textualism. 

Peter Smith: Originalism and Level of Generality
Michael Ramsey

Peter J. Smith (George Washington University Law School) has posted Originalism and Level of Generality (Georgia Law Review, Vol. 51. 2017) on SSRN. 

Here is the abstract:

Even if one concedes that the meaning of the Constitution today is its original meaning, at what level of generality should one seek that meaning? In considering whether bans on same-sex marriage violate the Fourteenth Amendment, for example, should we seek to determine how the framers of the Amendment would have answered that question, or should we instead seek to discern the broad principle — perhaps “equality” or “no caste-like discrimination” — that the Amendment objectively incorporated, even if application of that principle today might produce results that the framers would not have anticipated? The level of generality at which we ask the question almost foreordains the answer. But how should a faithful originalist identify the proper level of generality?

The old originalism focused on the original intent of the framers, and it sought to ascertain that intent at the most narrow level of generality. Under this approach, if the framers believed that a particular practice was constitutional, then it is constitutional today. The old originalism was principally concerned with judicial constraint and judicial restraint; confining judges to a narrow historical inquiry promoted the former, and narrowing the scope of individual rights promoted the latter. But the old originalism suffered from serious defects, including the fact that it could not justify Brown v. Board of Education and other cases that are central to our constitutional identity today.

The new originalism, which generally seeks the objective original meaning of the text instead of the original intent and treats as non-binding the framers’ expectations about how the text would apply, has addressed many of the theoretical defects of the old originalism. New originalists generally acknowledge that because many of the Constitution’s most contested provisions are framed in abstract terms, we should seek their objective original meaning at a correspondingly high level of generality. But the higher the level of generality at which we seek original meaning, the more room there is for judicial creativity in applying the Constitution’s broad principles to issues that arise today.

Indeed, by embracing interpretation of the text at a high level of generality, new originalists have opened the door to interpretations that would have come as a big surprise to the old originalists: originalist arguments not only that Brown was correct (notwithstanding the well-established view at the time of the framing of the Fourteenth Amendment that it would not disturb the common practice of racially segregated schools), but also that the Amendment prohibits gender discrimination, interference with a broad and potentially undefined group of unenumerated rights, and even bans on same-sex marriage.

These arguments might come as a welcome surprise to those who are skeptical of originalism, but they also come at a cost. First, there is little to distinguish these ostensibly originalist arguments from non-originalist approaches to interpretation, most of which begin by reading the text at a high level of generality and then seek to rely on practical judgment to apply the principles behind the text to modern circumstances. Second, new originalism’s flexible approach to the level of generality means that the approach cannot fulfill its promise of judicial constraint.

Indeed, in practice originalists have varied the level of generality at which they seek original meaning, often from case to case and issue to issue, in ways that cannot be explained simply by reference to the level of abstraction at which the constitutional text is expressed. This article documents that phenomenon, and concludes that sooner or later originalists will have to choose between their claims of constraint and neutrality, on the one hand, and legitimacy, on the other.


Randy Barnett on Historians and Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Challenging the priesthood of professional historians -- a long and sharp critique of this post by Jonathan Gienapp: Constitutional Originalism and History (for my milder response, see here; but based on Professor Barnett's comments, I think I may have underreacted).

Here is part of Professor Barnett's critique (the post is too long and rich to adequately summarize):

I agree [with Gienapp] that bracketing the assumptions, values, and logics that shape contemporary consciousness is important in seeking to understand the past. But, as a consumer rather than a producer of the works of historians, I must say that, when they venture into the constitutional arena, historians far too often fall short of this objective. Oddly, for some, the past never fails to disappoint their presentist ideological agenda. (A marvelous counter-example is the book Freedom National: The Destruction of Slavery in the United States, the thesis of which came as a complete surprise to its author, historian James Oakes. Oakes’ legal analysis was also particularly astute for a nonlawyer. I spotted no errors.)

This is why I like to check their footnotes. I like to see for myself if they have successfully “bracket[ed] the assumptions, values, and logics that shape contemporary consciousness.” But nowadays, such footnotes are often sparse, and are very general in what they do report. All too often we must take their narrative of the “alien, past world” on faith. And as the last paragraph makes clear, Professor Gienapp’s explication of how history is supposed to be practiced shares a lot in common with those religions that require their laymen to take the biblical interpretations of their clergy on faith. Call this the vision of historians as spirit guides or priests.

And from later on:

Back before I was an originalist, I disparaged the search for original framers intent to apply to present circumstances as “channeling the Framers” (a phrase Professor Gienapp puts in quotation marks, though without a source. Perhaps he got it from me). As in “Oh Framers, would you think that detecting increased heat emanating from a house was a ‘search’?” This is not an empirical inquiry; this is a hypothetical thought experiment; it is quite literally a counter-factual inquiry. And it appears that, according to Professor Gienapp, this exercise and nothing as mundane as “empirical knowledge” is “at base” the “historians’ expertise.”

But the converse problem with this claim is that some historians seem to think they can investigate the meaning of legal terms and concepts in the past without any legal training. For this it helps to be a lawyer. True, some of the best legal historians do have legal training, but not all who opine on the “meaning” of the Constitution do.


... [H]istorians who opine on constitutional “meaning” or political argumentation (without legal or philosophical training) tend to avoid the substance or merits of legal or philosophical arguments made by their historical subjects and choose instead to focus on the hopes, fears, ends, objectives, agenda, and expected applications of historical figures, groups and movements. If all you have is an hammer, then everything is a nail. If all you have is the historical method–as defined by Professor Gienapp–then the meaning of “meaning” must be reduced to the import or purpose of a constitutional provision, not the communicative content of what it said.


Ken Levy on the Problems with Originalism; James Rogers Responds
Michael Ramsey

At Liberty Law Blog, James Rogers: Originalism and the Shakespeare Test (responding to this New York Times piece by Ken Levy [Louisiana State]: The Problems With Originalism).

Professor Levy starts off with a good definition: 

Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

I think that's fine except for the phrase "should clearly follow."  I would say instead "may become clear."  Once again, originalism does not necessarily claim that it will make most issues clear; it only says that when the original meaning is clear, it should be followed.

Professor Rogers responds with his "Shakespeare test":

Here’s what I call the Shakespeare test. I substitute “Shakespeare play” and related words for the “Constitution.” The point is simply to judge whether, and to what extent, a proposed method of reading the Constitution differs from what we’d use when reading something more familiar. (It doesn’t need to be a Shakespeare play. It could be a baseball rulebook, or a math textbook, or the newspaper. Whatever.) Let’s try it with Levy’s paragraph:

Textualism says that when interpreting a Shakespeare play, readers should confine themselves to the words of the Shakespeare play.

Well, I’m unsure I would use the word “confine.” But, yeah, if we’re reading a Shakespeare play, then of course it’s the text of the Shakespeare play that we’re trying to interpret. It’s not really confining. It would be odd to try to interpret Henry V by, say, exegeting passages from The Crucible.

Originalism says that if the words [of a Shakespeare play] are at all unclear, then readers need to consult historical sources to determine their meaning at the time it was published . . .

Well, yeah, pretty much. At least if we’re interested in understanding what Shakespeare wrote in the play.

and the correct application of Shakespeare’s text to new situations should clearly follow.

Well, here Levy sets up a straw man. ...  As best I know, no sober textualist or originalist ever said application should “clearly follow” from application of the methods. Indeed, those I’ve read typically underscored that application isn’t necessarily clear or easy. But back to the Shakespeare test, there is, to be sure, a lot of wisdom to be chewed on in Shakespeare plays. The application of that wisdom to novel circumstances in one’s life today, however, is not necessarily clear. Indeed, readers can argue over what this or that passage might mean today. I don’t see that as a barrier, however, to trying to understand what Shakespeare actually wrote [or] to trying to apply it to one’s life today.

I'll add two thoughts.  (1) The indeterminacy criticism of originalism might have some bite if originalism really did not yield definite answers on any contested issues.  Originalism might then seem pointless.  But I do not think the indeterminacy critique can make this claim.  Here are two quick examples from my field (foreign relations law).  First, I think -- after a good bit of study -- that the original meaning of the Constitution is that the President cannot start a war without Congress' approval.  Not all originalist scholars agree with this view, but I think most do.  Second, I also think the Constitution's original meaning did not allow for sole executive agreements to preempt state law (contra United States v. Belmont).  Again, most originialists who have thought about the issue agree, and I'm not aware of a sustained argument to the contrary.

Does Professor Levy think I'm wrong on these two points?  Then he should make the arguments.  Otherwise, why should we accept his claim that originalism is categorically indeterminate (if that is what he's saying)?  True, it's not that easy to prove that originalism is always indeterminate; it would require examining originalist claims across a wide range of subjects.  But that's my point: unless one has made a comprehensive study, one should not make categorical claims.

Professor Levy likely would respond that he only means to claim that originalism is indeterminate in a large number of areas.  But as argued above, that isn't an argument against originalism.  It's just an argument against thinking that originalism will solve all our interpretive problems.

(2) In any event, suppose originalism is always indeterminate.  Why is that such a problem?  Professor Levy says that then it is "nothing more than [a] thinly veiled disguise[ ] for modern political conservatism."  But Professor Levy himself says that judges should take into account "the public policy consequences of each possible decision" and that they should "interpret constitutional language in light of our own, not [the framers'], moral and linguistic norms."  If conservative judges decide according to "the public policy consequences of each possible decision," they will reach results consistent with "modern political conservatism" -- apparently just what Professor Levy thinks they should do.  So originalism would not really lead to different outcomes in this scenario.  At worst, it is a distraction not affecting the result.

In sum, I think Professor Levy is partly right: sometimes originalism is indeterminate (or yields a very close call), and judges being human, they may often in such cases decide according to their moral or policy intuition.  Thus conservative judges will end up with a conservative result.  However, he's hardly in a position to complain about this outcome, since he thinks that's what judges should do anyway.  I also think he is partly wrong: sometimes originalism does give definite answers, and in these cases the honest originalist judge (and surely most are honest to this extent) will pick the originalist outcome.  The real debate should be whether in these cases, we want the judge to follow the determinate original meaning or the judges' moral and policy intuitions (which, for a conservative judge, will be conservative).  Claims that originalism is (sometimes? always?) indeterminate only distract us from the debate that matters.


Gorsuch Nods
Mike Rappaport

Note: I wrote this post last week at the Liberty Law Blog before I saw Chris Green's post on the same subject.  While Chris and I agree (no surprise there), happily the posts do make some different points. 

I haven’t been able to catch too much of the Gorsuch hearings, but I have heard some of it.  One of the exchanges, which has drawn some attention, involved Senator Amy Klobuchar asking Judge Gorsuch whether a woman President is consistent with the original public meaning:

"So when the Constitution refers like 30-some times to ‘his' or ‘he' when describing the president of the United States, you would see that as, ‘Well, back then, they actually thought a woman could be president even though women couldn't vote?" Klobuchar asked.

"Senator, I'm not looking to take us back to quill pens and horses and buggies," Gorsuch responded.

"But if you could answer that question, it's pretty important to me," she said.

"I'm trying to. Of course women can be president of the United States," Gorsuch said in an exasperated voice. "I'm the father of two daughters, and I hope one of them turns out to be president."

Unfortunately, Judge Gorsuch blew this answer.  Sure, he indicated that women could be President, but gave no reason for believing the original meaning allowed it.  His answer appeared to suggest that originalist could only believe this by violating their interpretive principles.

Significantly, there was a clear answer to the question.  When the Constitution was written (and until recently and even today to an extent), the term “he” had at least two meanings.  It could mean a male or it could mean any person, whether male or female.  (Similarly, the term “mankind” referred to all people, not just men.)

In fact, some of the constitutional provisions strongly suggest that women were covered by these terms.  Consider the Sixth Amendment, which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Clearly women could be criminal defendants and clearly they would enjoy the right to confront witnesses, to compulsory process, and to the assistance of counsel.

Thus, one need not depart from the text of the Constitution to permit women to be President.  One needs only to read the term “he” to have one of the meanings it had at the time of the Constitution.  Thus, originalism allows women Presidents.  In fact, the modern contemporary meaning view – which holds that words in the Constitution have their modern meanings – might prohibit women Presidents, since today some people argue that"he" only refers to males.

Reflections on the Gorsuch Hearings, Part II: High-Stakes Answers
Chris Green

Yesterday I noted one of my reactions to the Gorsuch hearings: that Judge Gorsuch is a man who takes promise-keeping and the rule of law very seriously indeed, and that this shows an important error in our forecast in Originalists Against Trump. My second thought about the Gorsuch hearings is (much) more technical: that stakes-sensitive epistemology offers a possible explanation for Gorsuch’s reticence to commend or criticize cases whose correctness or scope he will rule on as a judge.

When should people speak, and when should they keep silent? Many recent epistemologists have argued that we should do so only when we know whereof we speak. Knowledge is the norm of assertion. Many of the same epistemologists (and some others too) argue that what counts as “knowledge”—and so, given knowledge as the norm of assertion, when we should speak—depends on how much is at stake when we speak. Bigger stakes require more evidence. Saying “the bank is open on Saturday” will need more evidence, and more confidence, if we need to get money to pay a mortgage than if we only need money for Saturday-night poker.

Ryan Doerfler has recently applied stakes-sensitive epistemology to interpretation in an essay forthcoming the Michigan Law Review, High Stakes Interpretation. He argues that the tendency to see statutes as ambiguous when the stakes increase may reflect higher standards for knowledge in the high-stakes setting, rather than motivated cognition or disingenuity.

For my part, I argue here that different settings for constitutional interpretation might involve different stakes. Different interpreters will therefore require different amounts of evidence before making claims about what the Constitution requires or allows. Because legislative decisions are more easily reversed, constitutional interpretations on which they are based need less evidence than does the constitutional interpretations that support judicial review. Congress may properly say that X is constitutional based on less evidence than courts need in order to say that X is unconstitutional.

What does stakes-sensitive epistemology have to do with the hearings? Judge Gorsuch has worn many hats in his career: that of an executive-branch advisor, that of a judge, and that of a Supreme Court nominee. These are three very different contexts, and in all of them, his chief job has been speaking, largely speaking about the law, either to other executive-branch officials, or to litigants, or to Senators asking how he would approach work as a justice. And these contexts involve very different stakes. If his executive-branch interpretations were the final word on interrogation policy, say, then his statements might have been very high-stakes indeed. “I don’t know” would be appropriate a great deal of the time if there were no opportunity to research high-stakes questions in more depth. But in a normal conversation among executive officials, where a statement about the law will be checked by many others before any policy is executed, a slight inclination might be enough to warrant including that statement in a draft. Judicial opinions are a different setting involving different stakes. Courts have traditionally refrained from making statements about a conflict between the Constitution and a statute unless that conflict is “clear,” after the court has done whatever it can to clarify the issue; more than proof by a bare preponderance of the evidence is required.

What about nomination hearings? Here, one important factor affecting the stakes is the great number of people who are watching, or will watch, the hearings: many more than will read most of Judge Gorsuch’s judicial opinions for the Tenth Circuit. The great many litigants who will argue before a Justice Gorsuch if he is confirmed will take his confirmation-hearing statements as indications of the sorts of arguments that he will entertain. Likewise, Justice Kagan’s statement at her confirmation hearing that “We are all originalists now”—and her stress on the differing levels of abstraction that different constitutional or statutory texts might involve—tells us what sorts of arguments she will use to resolve cases as a justice. Kagan’s statement is thus an important barometer of public legal and constitutional culture because nominees do not make such statements lightly. Confirmation hearings are a very high-stakes context.

How does this help explain why a nominee might not answer a Senator’s question, or might refuse to say how a future case might be decided? Such reticence need not reflect a complete absence of information in the nominee about the issues that future cases will involve—a sort of ignorance inappropriate in a future justice. Nor (as in Doerfler’s application of stakes-sensitive epistemology) need it reflect disingenuous, feigned ignorance. Deciding actual cases requires a lot of evidence, and statements about future cases in a high-stakes context like a confirmation hearing require even more. The judicial duty of clarification (see here and here) requires that courts consider “every consideration that can occur to us,” as Justice Iredell put it in 1792. Hazarding a guess in a confirmation hearing about the outcome of that effort at clarification before it has taken place is inappropriate for the simple reason that the stakes are too high.

Mitchell Berman: Our Principled Constitution
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Law School) has posted Our Principled Constitution on SSRN.  Here is the abstract:

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a “constitutive theory” of constitutional law. It is obvious that we do not all share a constitutive theory. It is less obvious, and strikingly underappreciated, that we have precious few candidates to choose from. We have many “prescriptive theories” regarding how judges should exercise the power of judicial review, but few of them have clear, let alone complete, constitutive implications.

This Article presents an original constitutive theory of American constitutional law. It starts by distinguishing two types of constitutional norms: “constitutional principles” and “constitutional rules.” It then argues: first, that rules are determined by the interaction of principles, which combine to produce rules on the model of force addition; and second, that the principles are “grounded” in mental states, speech-acts, and behaviors of persons who make up the constitutional community, much as rules of fashion or of card games are grounded in behaviors of persons who make up their normative communities. In short: social facts determine constitutional principles, and constitutional principles determine constitutional rules. I call the account “principled positivism.” It is positivist, pluralist, and inescapably dynamic.

If principled positivism is correct, then we come to know our constitutional rules by discerning the contents, contours, and weights of the constitutional principles currently in force. Accordingly, the Article offers a preliminary and partial inventory of our constitutional principles—principles concerning the legal significance of what the enacted text says and about what its authors intended; principles about the force of judicial precedents and of extra-judicial practices; principles about the locus of sovereignty, the distribution of governing power, and the demands of liberty and equality. It then puts the principles to work, illustrating their operation in a handful of actual constitutional controversies, ranging from same-sex marriage to the scope of Congress’s commerce power.

This was one of the papers presented at the 2017 Originalism works-in-progress conference in San Diego in February.  It presents an interesting and challenging alternative to originalism.


Reflections on the Gorsuch Hearings, Part I: Originalists Against Trump and Promise Keeping
Chris Green

As many readers will remember, I was among the initial signatories to the Originalists Against Trump statement released last October. In the interests of candor and humility when they are appropriate, it is worth reflecting on one of the statement’s empirical claims about the President: “We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so.” 
Trust in promise-keeping has a special place in our republic. The Article VI constitutional oath is the chief means by which the Constitution imposes on officials a moral duty not to go beyond their delegated powers.  I have written at great length (see here, with some elaboration here,  here, and here) about the way in which Article VI’s reference to “this Constitution” makes, in context, the original textually-expressed meaning the supreme “constitutional truthmaker” in virtue of which constitutional claims must be measured. The oath is the life-blood, both morally and practically, of our constitutional framework. Lack of trust in the oath is civic poison. But trust in the constitutional oath cannot be demanded by those who have not earned, conserved, and treasured it.  
Against that backdrop, it is important to give the President a measure of credit for his faithfulness to his promise in judicial selection. Whatever the rest of his policies, President Trump has shown that we were wrong in October in this key empirical respect. Fellow signatory Keith Whittington has noted that however much we oppose the President as a general matter, positive encouragement is obviously appropriate, and important, when the President does things right. And the Gorsuch nomination is something the president did right.
President Trump explained the centrality of promise-keeping to his selection of Judge Gorsuch at the time of his nomination:
This may be the most transparent judicial selection process in history. Months ago as a candidate, I publicly presented a list of brilliant and accomplished people to the American electorate and pledged to make my choice from among that list. Millions of voters said this was the single most important issue to them when they voted for me for president.  I am a man of my word. I will do as I say, something that the American people have been asking for from Washington for a very, very long time. Today I am keeping another promise to the American people by nominating Judge Neil Gorsuch.
Judge Gorsuch himself has written eloquently about the oath and invoked it during his hearings. It was heartening to see even Democratic Senator Patrick Leahy invoke the judicial oath in his questioning, stressing the duty of equal justice to rich and poor, an issue Richard Re has written about recently. The Article VI oath is the ultimate common ground among officeholders, no matter their party or background. Indeed, Article VI was designed to bind our government together precisely by binding all officeholders, state and federal, to a common Constitution.
After watching a week of Judge Gorsuch’s patient explanations of his approach to judicial decisionmaking and the details of his opinions when confronted with the choice between a sympathetic litigant and the judge’s view of the law, it is quite clear—to me at least—that Judge Gorsuch indeed treasures the rule of law. President Trump deserves credit for picking a candidate with Gorsuch’s evident devotion to promise-keeping, and he will deserve more if his future judicial nominees display the same devotion.
Part II will consider one possible justification why Gorsuch did not say more at his confirmation hearing in response to questioning.

What Was the Common Law Right to an Impartial Jury at the Time of the Constitution?
Mike Rappaport

In my last post, I argued that Justice Thomas’s dissenting originalist opinion in Pena-Rodriguez v. Colorado required that one view the Constitution as written in the language of the law.  Thomas viewed the Sixth Amendment right to an impartial jury as deriving its content from the common law that existed at the time of the Constitution.  I agree with Thomas that the Sixth Amendment does have the legal meaning of the common law right at the time.

But was Thomas right about the content of the common law right in 1791?  Is it clear that it did not allow juror statements of bias to be admitted after the verdict was rendered?

Justice Thomas argues that such statements cannot be introduced based on two decisions by Judge Mansfield.  Here is what Justice Thomas says in his opinion:

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.). ...

This seems like reasonable evidence, but do two opinions by Lord Mansfield constitute the common law at the time?  While two decisions by the Supreme Court today might constitute the law, that was not necessarily true at the time of the Constitution.  In those days, the common law had less of a positivist, stare decisis character, where a single decision of a high court stated the law.  Instead, while such decisions were evidence of the law, it was really a series of decisions that was said to be strong evidence or perhaps to constitute the law.  But Thomas does not suggest that a series of decisions supported this result.  Two does not a series make.  Moreover, prior to the 1770 decision, the English common law rule differed, allowing evidence from jurors of juror misbehavior if introduced “with great caution.”

Further complicating Justice Thomas’s position is that the rule in the U.S., as opposed to England, was mixed.  As Justice Thomas writes:

At the time of the founding, the States took mixed approaches to this issue. See Cluggage v. Swan, 4 Binn. 150, 156 (Pa. 1811) (opinion of Yeates, J.) (“The opinions of American judges . . . have greatly differed on the point in question”) . . . . Many States followed Lord Mansfield’s no-impeachment rule and refused to receive juror affida-vits. See, e.g., Brewster v. Thompson, 1 N. J. L. 32 (1790) (per curiam); Robbins v. Windover, 2 Tyl. 11, 14 (Vt. 1802) . . . . Some States, however, permitted juror affidavits about juror misconduct. See, e.g., Crawford v. State, 10 Tenn. 60, 68(1821); Cochran v. Street, 1 Va. 79, 81 (1792). And others initially permitted such evidence but quickly reversed course.

Eventually, however, “by the time the Fourteenth Amendment was ratified, Lord Mansfield’s no-impeachment rule had become firmly entrenched in American law.”

It is not clear which common law – England or America or both – was relevant.  But even if it was the English Common law, as Justice Story argued, there was not a series of decisions resolving the matter.  And if the common law of the different states matter, there was even more disagreement.

So how should one decide the matter?  This is a difficult and complicated matter.  But I believe that the Supreme Court should interpret the constitutional right as a common law judge at the time would have decided the case (subject to a limitation noted here.).  In that event, the fact that England was leaning toward it and it was the majority view in the US suggests that it is the correct answer.

But that is not dispositive.  One would need to apply the common law as people at the time would have.  One would look not merely at the precedent, but at the pattern of decisions more generally.  And one might have to look at what reason required.  The meaning of this requirement is a matter of dispute, with some arguing it merely meant the absence of contradictions in the law and others arguing that it was referring to what might be regarded as policy considerations, albeit policy based on values at the time.  (There are other possibilities as well).

In the end, it appears that the question might be more complicated than Thomas makes it out to be.  That said, I doubt that the majority’s decision – holding that evidence of racial bias, but not other types of bias, should be admitted – can be justified under the common law at the time.  Racial bias did not have the special importance that we attribute to it today.  And by the time of the 14th Amendment (which might apply to state prosecutions), the rule seems to have been clear that no juror evidence of bias could be admitted.

Justice Thomas Lee & Stephen Mouritsen: Judging Ordinary Meaning
Michael Ramsey

Justice Thomas R. Lee (Utah Supreme Court; Brigham Young University Law School) and Stephen C. Mouritsen (University of Chicago - Law School; Brigham Young University - J. Reuben Clark Law School) have posted Judging Ordinary Meaning on SSRN.  Here is the abstract:

Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there — out of respect for the notice function of the law or deference to the presumed intent of the lawmaker. 

Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation. 

We agree with the diagnosis of important scholars in this field — from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs — but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language — linguistics. 

We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning — from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.

When we speak of ordinary meaning we are asking an empirical question — about the sense of a word of phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.