Is Trinity Lutheran the End of Originalism? [Updated]
Michael Ramsey
In the Philadelphia Inquirer, Bruce Ledewitz: 'Trinity' case marks end of originalism. It begins:
It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation. Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.
Professor Ledewitz appears to belong to the camp that thinks one can make originalism go away by yelling at it.
At Volokh Conspiracy, Randy Barnett has extensive (harsh) comments: Does Trinity Lutheran mark the “end of originalism”. He begins:
What is it about originalism that makes smart living constitutionalist law professors write silly things? Duquesne law professor Bruce Ledewitz is a smart guy. But he’s written a snarky op-ed about about the Trinity Lutheran case and originalism entitled, ‘Trinity’ case marks end of originalism. Let’s review it, shall we?
Professor Barnett makes a number of excellent points. Here are a couple I'll amplify.
(1) Professor Ledewitz's contention that originalism is "premised on a nihilistic skepticism about the possibility of truth in political affairs" is nonsense, and Professor Ledewitz makes no effort (literally none) to support the claim. Originalism is premised on the contention that the search for "truth in political affairs" is committed in our constitutional system to the people and their elected representatives, not to unelected judges; judges have the more modest role of determining what the law is, based on the meaning of laws enacted by the people and their representatives, rather than saying what the law should be. Professor Ledewitz apparently envisions a much more outsized role for judges as the arbiters of "truth in political affairs." That, he should recognize, is his real objection to originalism. It's a legitimate objection, but of course does not lead to the sort of absolutism he's pursuing.
(2) Ledewitz's contention that originalism "never made any sense either as a matter of language or political theory" is equally unsupported. As to political theory, originalism's basic claim is the one laid out in point (1) above: the search for "truth in political affairs" should be, as much as possible, committed to the people and their representatives, and judges should be constrained, as much as possible, to the meaning of their enactments. One may not like that theory (because it arguably leads to sub-optimal outcomes), but it would take quite a bit to show that it makes no sense. As to making sense as a matter of language, I assume that means that finding the original meaning simply isn't possible. But as Barnett writes:
But if [Ledewitz] means to claim that an original public meaning of the text cannot be discovered “as a matter of language,” he then immediately contradicts that claim by asserting an original meaning of the Establishment Clause so definitive that a finding for Trinity Lutheran was “ridiculous” “from the point of view of originalism.”
I'm amazed that nonoriginalist commentators continue to simultaneously claim that originalism is fatally indeterminate and that it inevitably leads to bad results, even though this contradiction has been repeatedly pointed out.
(3) The idea that, based on Trinity Lutheran, "originalism as a theory can confidently be relegated to the historical ash heap" is equally unexplained and equally nonsensical. True, Trinity Lutheran is not much of an originalist opinion. But that says little about originalism as a theory. First, I see Trinity Lutheran as mostly based on precedent. Many versions of originalism accommodate precedent, especially when the Constitution's text is not clear. Second, originalism as a theory is not typically a predictive theory of what the Court will do; it's a theory of what the Court should do. The Court has issued many nonoriginalist opinions. It's true also that the Court's originalist and originalist-oriented Justices did not have much to say about originalism in the opinion, and that's a cause for some concern. But again, Professor Ledewitz seems unduly apocalyptic.
(4) On the merits, Ledewitz makes a complete hash of the originalist analysis. His main claim is that the Establishment Clause precludes the state from giving money to improve the church playground (as part of a program to generally improve playgrounds). As Professor Barnett points out, the Establishment Clause issue is complicated by the fact that it's a state law being challenged, and so the analysis must come from the Fourteenth Amendment, not the Establishment Clause directly (something Ledewitz ignores). But even leaving that aside, it's not at all clear to me that the original meaning of the Establishment Clause requires churches to be excluded from benefits generally available to other private entities. Presumably, for example, the government may offer police and fire protection to churches along with other buildings, and may build and maintain roads leading to churches. The founders were indeed worried about government money going to churches (as Ledewitz says), but the paradigm concern was special benefits for churches. The "established" church received benefits not available to others; thus the core problem was favoritism. Trinity Lutheran does not involve favoritism. To say it is covered by the Establishment Clause (to the extent that any other position is "ridiculous") seems a stretch.
(5) Nonetheless, I have some ultimate sympathy for Professor Ledewitz's position. Although I don't find the Establishment Clause argument persuasive, I also have doubts about the Free Exercise Clause argument. The Court's majority largely assumes that the Free Exercise Clause is a non-discrimination provision (as noted, mostly on the basis of precedent). Maybe that's right, but it does not seem to follow inevitably from the clause's text. The state's failure to fund improvements to the church playground does not seem to "prohibit" the church members' free exercise of their religion. Exercise of religion does not require a playground. True, denial of the state funding burdens the religious exercise slightly, by making it more expensive for the church (compared to other entities) to have a playground. But that seems, at least arguably, short of a prohibition. Thus I think Ledewitz is right that a serious originalist analysis would seem to call for more discussion than the Court accorded it, and that the opinions may be criticized on this ground. I would say, though, that that indicates the continuing relevance of originalism, not its demise.
UPDATE: Professor Ledewitz has an extensive response to Professor Barnett at his blog Hallowed Secularism, and Professor Barnett has an extensive response to the response: “The end of Originalism” Round Two: Ledewitz doubles down. Quite a bit has been said so I don't think I'll add any more.
ASIDE: Professor Ledewitz's Hallowed Secularism, which I hadn't encountered before, is an interesting blog with generally a lot more subtlety than in the originalism broadside -- see here (on the President firing James Comey), here (on the Paris Agreement) and here (Putnam versus Scalia). One of my favorite parts of collecting originalism commentary is discovering new (t0 me) perspectives.
FURTHER UPDATE: John McGinnis has a somewhat related post at Liberty Law Blog, although not tied to this discussion: Is the Court’s Originalist Jurisprudence Mostly Symbolic? He concludes:
Originalism in the academy has entered an almost golden age. Careful scholarship offers better and better templates for interpreting provisions the Constitution as written. But the originalist revival on the Court, while valuable for its models of sound judicial reasoning, is still in its infancy. Originalism will be recognized as the dominant mode of constitutional interpretation when most Justices are ready to make originalist decisions that go beyond symbolism.
Agreed. The fact that the Court's originalism remains a bit tentative does not mean (as Professor Ledewitz would have it) that originalism has failed. It means only that its future is unclear. As the future usually is.