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33 posts from March 2018


Randy Barnett & Evan Bernick: An Originalist Theory of Due Process of Law
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) and Evan Bernick (Georgetown University Law Center) have posted No Arbitrary Power: An Originalist Theory of the Due Process of Law on SSRN.  Here is the abstract:

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. 

We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power.

By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.

More from Professor Barnett at Volokh Conspiracy  here


Seth Barrett Tillman on the High Court of Australia and the Emoluments Litigation
Michael Ramsey

Josh Blackman, on behalf of Seth Barrett Tillman, has filed this supplemental brief in the emoluments clause litigation, noting an interesting decision of the High Court of Australia.  It states:

Scholar Seth Barrett Tillman and the Judicial Education Project, Amici Curiae (“Amici”) in Support of Defendant, submit this letter to inform the Court of new relevant authority from the High Court of Australia: Re Lambie [Mar. 14, 2018] HCA 6, 2018 WL 1282055.

Under Section 44 of the Australian Constitution, a person who “holds any office of profit under the Crown” is “incapable” of “sitting as a senator or a member of the House of Representatives.” The High Court concluded that because an elected mayor was not appointed (and not removable) by the Crown, his position was not “under” the Crown. See Lambie [33]–[34], [36]. In a concurring opinion, Justice Edelman explained that this understanding of “office . . . under the crown,” with respect to such elected positions, had by 1901 been “crystallised after two centuries of legal usage.” Lambie concurrence [58] (emphasis added); see also id. (“As Sir Samuel Griffith QC said in submissions in 1889, [office . . . under the crown] was ‘an old phrase, well understood in relation to parliamentary law.’” (quoting Hodel v Cruckshank, 3 Queensland L.J. 140, 141 (Qld. 1889)));
 Amici Brief, ECF No. 76, at 29–30 (“Sir S.W. Griffith . . . would become Australia’s first Chief Justice.” (quoting Griffith’s statement from Hodelsupra)).

The Lambie concurring opinion provides this Court with persuasive authority concerning the understanding of the phrase “office . . . under the United States” when our Constitution’s Foreign Emoluments Clause was ratified. See Messitte, Citing Foreign Law in U.S. Courts, 35 U. Balt. L. Rev. 171, 181 (2005).

(Thanks to Seth Barrett Tillman for the pointer).


One More Thing on Natural Born Citizens
Michael Ramsey

John Vlahoplus, who has done much valuable work on the natural born citizen clause, recently called my attention to an interesting case from 1824, Ex parte Dupont, 1 Harp. Ch. (S.C.) 5, 15-16.  (This is the lower court decision in the case that became Shanks v. Dupont, also relevant to the natural born citizen issue but in a more tangential way).

People who have followed this debate closely will recall that there's a question whether children born abroad to U.S. citizen mothers and non-citizen father are "natural born citizens" under the 1790 Naturalization Act.  (The question is whether the phrase "the children of citizens of the United States" requires a citizen father).  Paul Clement and Neal Katyal, in a Harvard Law Review Forum essay, read the Act to include children with only a citizen mother.  Historian Saul Cornell sharply disputed that reading in this essay, and I defended the Clement/Katyal in a response to Professor Cornell.  None of us, however, managed to find the Ex parte Dupont case.

In Dupont, the court interpreted the 1795 Naturalization Act, which has similar language to the 1790 Act (except it does not have the "natural born" phrase).  The court concluded that under the Act, a child born abroad to a U.S. citizen mother and a non-citizen father could be a citizen at birth.  On the particular facts, it found that the child in question was not a U.S. citizen because the non-citizen father had not been a resident of the U.S. for the time prescribed by the statute.  But if the residency requirement had been met, the court strongly indicated that the statute would have conveyed citizenship on the child.

The court's conclusion appears to support the Clement/Katyal reading of the 1790 Act -- that is, that statutory birth citizenship could derive from the citizenship of the mother alone.  (The relevant wording in the two Acts is parallel).

I'm not sure this is terribly important.  The Dupont court could have been wrong; the case was decided well after the Act was passed, and it involved a different (albeit similarly worded) Act.  Moreover, as I said in my response to Professor Cornell, Clement and Katyal could be right about the original meaning of natural born even if they were wrong about the 1790 Act.  But it is at least some evidence that the 1790 Act envisioned a child obtaining citizenship at birth through the mother's citizenship -- which in turn is at least some evidence that Congress thought it had some latitude to define the phrase "natural born."  And the last point is the central proposition in my reading of the natural born citizen clause.

More importantly:  There is always something else out there that we haven't found yet.


Earl Maltz on Originalism and Partisan Gerrymandering
Michael Ramsey

At Election Law Blog, Earl Maltz (Rutgers), guest-blogging, responds to Ned Foley (see here) on partisan gerrymandering and originalism: 

In a recent series of blog posts drawn from a forthcoming article in the Georgia Law Review, Professor Edward B. Foley argues that a successful constitutional challenge to extreme political gerrymanders of congressional districts can be based on the original meaning of the Constitution.  Professor Foley contends that, even in the absence of federal statutes regulating such gerrymanders, by analogy to the dormant Commerce Clause, limitations on the actions of state governments can be inferred Article I, section four, which grants Congress the authority to establish the rules under which members of the House of Representatives are chosen.  Second, relying on what he describes as “structural originalism,” Professor Foley argues that “partisan gerrymandering of congressional districts contravenes Article I of the original Constitution insofar as those gerrymanders undermine the responsiveness to the will of the ‘People’ that biennial elections to the federal House of Representatives originally were designed to effectuate.”  However, despite a valiant effort, Professor Foley ultimately fails to demonstrate that the use of partisan gerrymanders is barred by the original meaning.

In making his argument, Professor Foley makes only passing reference to the most directly relevant constitutional provision—the part of Article I, section four, which provides that “[t]he Times, Places and Manner of holding Elections for….Representatives, shall be prescribed in each State by the Legislature thereof,” subject only to the proviso that “Congress may at any time by Law make or alter such regulations.”  The existence of this language undermines Professor Foley’s argument on a number of different levels. ...

And from the core of the argument:

... [N]ot only does the language of Article I, section four undermine the constitutional challenge to political gerrymanders on its face, but the most detailed discussion of this language at the Constitutional Convention is flatly inconsistent with Professor Foley’s argument.  At the convention, James Madison provided a detailed description of the extent of state power to regulate the time, place and manner of congressional elections after Charles Pinckney and John Rutledge of South Carolina moved to eliminate the power of Congress to alter those regulations.  In opposing the motion, Madison first observed that times, places and manner “were words of great latitude” and that “it was impossible to foresee all the abuses that might be made of [this] discretionary power.”  Moreover, Madison explicitly envisioned the possibility that “the inequality of the representation in the legislatures of particular states would produce a like inequality in their representation in the national legislature, as it was presumable that the counties having the power in the former case would secure it to themselves in the latter.”  For this reason, he argued, it was necessary for Congress to have the power to override state regulations that it deemed inappropriate.

The import of Madison’s analysis could hardly be clearer.  In his view, the Time, Place and Manner Clause by its terms vested the state governments with the authority to adopt whatever systems they choose for the selection of representatives (subject, of course to the specific requirements of Article I).  He conceded that, at times, states might abuse this authority.  However, Madison implicitly indicated that the power to remedy the problem would lie only with Congress. ...

Professor Foley has a further response here, which emphasizes methodological differences: 

But that assumption [that originalism does not support an argument against partisan gerrymanders] is based on a faulty conception of originalism, one rooted in the idea that the law of a constitutional clause is to be discerned in how its authors originally expected the clause to operate.  Called “original expectation application,” this version of originalism has been largely discredited by scholars and jurists alike (including Justice Scalia) and replaced with “original public meaning”—the law of a constitutional clause is what the public as a whole understood those words to embody at the time of ratification.  This distinction is crucial.  It is what justifies decisions like Brown v. Board of Education and Loving v. Viriginia.  Did the authors of the Fourteenth Amendment expect that amendment to outlaw school segregation or laws prohibiting interracial marriage?  Of course not.  But the original public meaning of the phrase “equal protection” embodied a kind of anti-caste principle that, when understood for what it was, necessarily invalidated race-based discriminations regarding education and marriage.

Professor Maltz’s claim that originalism does not generate the conclusion that congressional gerrymanders are unconstitutional is mired in the since-repudiated “original expected applications” version of originalism.  His main piece of evidence is what delegates to the Constitutional Convention said to each other behind closed doors during the summer of 1787 in Philadelphia.  Not only do those particular passages fail to carry the implications that Professor Maltz ascribes to them—the fact that states might abuse the power to regulate the “time, places, and manner” of congressional elections, as Madison feared they would, hardly entails the conclusion that no such abuse could be too extreme to be unconstitutional in Madison’s eyes—but even if that’s an accurate understanding of what Madison himself thought on the particular question, it would not fix the “original public meaning” of the provisions that were actually ratified.  Madison’s own notes on the convention were not published until decades later, in keeping with the promise to keep the convention’s discussions secret.

Without taking sides on the ultimate question, it seems to me that a difficulty with Professor Foley's methodological argument is that he is not actually relying on the original public meaning of a particular clause (as he explains in his earlier posts).  Instead, he is relying on a structural implication.  So he is not really doing what he says originalists do with Brown and Loving -- that is, interpreting words to have their original meaning despite their framers' expectations.  He is taking that approach a step further to find structural implications that the framers (so far as we know) did not identify.



Greg Weiner on Judicial Impeachment
Michael Ramsey

At Liberty Law Bog, Greg Weiner: Restoring Judicial Impeachment.  From the introduction:

In March 1804, the House of Representatives did something for the first and, sadly, last time: It impeached a justice of the Supreme Court for abusing the office of a judge. The high-Federalist Samuel Chase was acquitted by a Jeffersonian-dominated Senate, setting a precedent that a judge should not be impeached for his or her rulings. It is a precedent that should be, as it were, reversed.

Mark Pulliam has wisely counseled that conservatives will rue an escalating war of judicial impeachment, and that, regardless, the device requires more institutional assertion and judgment than Congress can reasonably be said currently to possess. James R. Rogers similarly argues that Congress has ample weapons short of impeachment to control judges.

Yet the power of these subordinate weapons is diminished by the dismemberment of the ultimate one. Put otherwise, the problem with the untouchability of judges is not that some of them should be impeached but rather than all of them know it will never happen. An impeachment and removal now and then, if only for public morale, would have the effect not just of punishing an individual judge — and surely there are deserving candidates over the course of time — but also of reminding all the others that they are ultimately subject to the political branches.

On the original design:

[The Chase impeachment] is in fact exactly how the constitutional system should work. Publius declared as much in Federalist 81: The impeachability of judges was “alone a complete security” against their abuse. Knowing of that threat, judges would never engage in “a series of deliberate usurpations on the authority of the legislature….” James Madison likewise wrote that judges’ “amenability to the Legislative tribunal in the form of impeachment” was an available means by which they could be “kept or reduced within the paths of duty….”

(Thanks to Mark Pulliam for the pointer).


Brian Slocum: Replacing the Flawed Chevron Standard
Michael Ramsey

Brian G. Slocum (University of the Pacific - McGeorge School of Law) has posted Replacing the Flawed Chevron Standard (William & Mary Law Review, Vol. 60, 2018) on SSRN.  Here is the abstract:

Judicial review of agency statutory interpretations depends heavily on the linguistic concept of ambiguity. Under Chevron, judicial deference to an agency’s interpretation hinges on whether the court determines the statute to be ambiguous. Despite its importance, the ambiguity concept has been poorly developed by courts and deviates in important respects from how linguists approach ambiguity. For instance, courts conflate ambiguity identification and disambiguation and treat ambiguity as an umbrella concept that encompasses distinct forms of linguistic indeterminacy such as vagueness and generality. The resulting ambiguity standard is unpredictable and does not adequately perform its function of mediating between judicial interpretive autonomy and deference to agency interpretations.

This article offers a novel alternative to the problematic ambiguity concept. Rather than a binary choice between clarity and ambiguity, different types of linguistic issues should call for different judicial treatment. Instead of the ambiguity trigger for deference, courts should presume that certain categories of issues are judicially resolvable while other categories are for the agency to resolve. The categories proposed in this article reflect the traditional view that courts are experts at statutory interpretation (which includes determining congressional intent), and agencies are experts at policymaking (which includes exercising delegated discretion). The categories thus provide a framework for the allocation of interpretive authority between courts and agencies on the basis of their respective areas of expertise. Furthermore, the proposed framework offers a better account of significant cases, such as the infamous King v. Burwell case where the Court refused to defer to the agency’s interpretation, than does the Court’s own explanations.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the week").


Jonathan Adler on Sixth Circuit Originalism in Turner v. United States
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler notes a recent decision of the Sixth Circuit, Turner v. United States (holding that under controlling Supreme Court precedent, the Sixth Amendment right to counsel does not apply prior to indictment).  Judge John Bush (newly appointed by President Trump) -- joined by Judge Raymond Kethledge (on the President's list of potential Supreme Court nominees) -- concurred, writing in part:

History sometimes reveals more import to words than they at first seem to have. And faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified, rather than applying meaning derived years later that may weaken constitutional rights. This case calls for such an examination.


The majority is correct that we are bound to affirm because of Supreme Court precedents holding that the Sixth Amendment right to counsel attaches only "at or after the initiation of criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Moody, 206 F.3d 609, 614 (6th Cir. 2000). But the original understanding of the Sixth Amendment gave larger meaning to the words "accused" and "criminal prosecution" than do these precedents, and for that reason, I write separately. As discussed below, the greater weight of the Founding-era evidence appears to support the propositions that Turner was an "accused" even though he had not yet been indicted federally, and that the communication of an exploding plea-agreement offer by a federal prosecutor that would, if accepted, all but end Turner's criminal litigation, was part of a "criminal prosecution" as those terms were used in the Sixth Amendment. In light of this history of the original meaning of the Sixth Amendment text, the Supreme Court might wish to reconsider its right-to-counsel jurisprudence.


Ned Foley on Originalism and Partisan Gerrymanders
Michael Ramsey

At the Election Law Blog, Ned Foley (Ohio State) has a series of guest posts on Benisek v. Lamone, the Maryland gerrymandering case pending at the Supreme Court.  The first two posts provide an overview of the case, while the third and fourth present a novel originalist argument for invalidating the gerrymander.

Benisek, Congressional Gerrymanders & the Elections Clause (post #1)

Constitutional Preservation, the Marbury Duty & Congressional Gerrymanders (post #2) [arguing that it's not a political question]

Originalism and Election Law (or, The Difference between Reynolds and Benisek) (post #3)

Shelby County, Structural Originalism, and Congressional Gerrymanders (post #4)

The third post begins:

Election Law as a distinct field of study was founded on decidedly “non-originalist” premises.  The seminal case, after Baker v. Carr set aside the “political question doctrine” as an obstacle to the judicial entry to this field, was Reynolds v. Sims.  Decided in 1964, during the heyday of Warren Court activism, Reynolds declared that the Equal Protection Clause of the Fourteenth Amendment required equally populated districts for a state’s legislative chamber.  The Warren Court made no effort to derive this “one-person, one-vote” requirement from the original meaning of the Equal Protection Clause.

Indeed, the Court obviously could not do so, since the Fourteenth Amendment (in its second section) explicitly acknowledged that states were entitled to deny equal voting rights to their citizens, the only consequence being that states would lose strength in their share of congressional seats nationwide to the extent that they denied voting rights to adult males 21 or older (except for reason of a felony or participation in the Civil War on the side of Confederacy).  Moreover, it was necessary to add the Fifteenth Amendment in order to protect the right to vote from race-based discrimination.  The Fifteenth Amendment, however, was mere surplusage if the Fourteenth already guaranteed each adult citizen an equal right to vote.  In his Reynolds dissent, Justice John Marshall Harlan (one of the jurisprudential giants in the Court’s history) excoriated the majority opinion for abandoning all pretense of fidelity to the Constitution’s actual language and original meaning.


...Moreover, given that so much energy for more than thirty years has been devoted to deriving a successful anti-gerrymandering claim from the flagrantly non-originalist Reynolds, it is understandable that one might assume that it is impossible to mount a genuinely originalist challenge to partisan gerrymandering.  That assumption, however, is incorrect.  If we bypass Reynolds altogether, and examine the issue from a fresh perspective, we can see that congressional gerrymandering in particular—the type at issue in the pending Benisek case from Maryland—is constitutionally infirm according to a properly originalist interpretation of Article I and its role in the overall design of the original Constitution.

Here is the core of the argument:

Focusing on the originalist antipathy towards faction properly distinguishes the constitutional condemnation of partisan gerrymandering from the anti-originalist imposition of “one-person, one-vote” in Reynolds.  There is nothing in the original Constitution, or the Fourteenth Amendment, that required states to district their own legislatures according to a principle of equal population.  The Framers knew that there could be valid principles of legislative apportionment, based on legitimate geographical considerations, for why a state’s own legislative districts might deviate from strict population equality.  (A desire for balance between downstate and upstate in New York, for example, might be one such legitimate consideration, or between the tidewater and piedmont regions of Virginia.)  But if the federal Congress became captured by the mere desire of a faction to perpetuate itself in power, without regard to valid geographical factors, that circumstance would be directly antithetical to what the Framers were aiming to accomplish with their constitutional design, including specifically the biennial nature of elections to the federal House of Representatives as a key component of that design.

And this key methodological point:

The fact that gerrymanders occurred almost immediately after adoption of the Constitution, before the proverbial ink was dry, in no way undercuts this originalist conclusion.  In his Vieth plurality, Justice Scalia seemed to think that partisan gerrymanders could not be unconstitutional given their existence going all the way back to the time of the Founding (and, indeed, in the colonial period before).  But as Justice Scalia himself recognized in many other writings, the proper methodology of originalism—what he and others have technically called the “original public meaning” of the Constitution—does not work this way.  Often provisions are included in a Constitution precisely because its authors are acutely aware that ordinary politicians, succumbing to the inevitable pressures of ordinary politics, will become agents of a self-serving faction rather than of the general public interest, and thus there needs to be a constitutional constraint upon such ordinary political behavior.  Consequently, the mere fact that this kind of improper political conduct begins to occur almost immediately after adoption of the Constitution is not an indication that the conduct is constitutionally permissible.  On the contrary, it simply underscores the accurate assessment of the need for this constitutional constraint.

And an even more important general point from the fourth post:

This brief blog essay is hardly the place to outline all the variations among contemporary versions of originalism.  There is just one basic distinction, between two different forms of originalism, that is important to identify for the purpose of evaluating the applicability of originalism to the issue of congressional gerrymandering.  That distinction is between what we may called “linguistic originalism,” on the one hand, and “structural originalism,” on the other.

Linguistic originalism concerns the meaning of words, or phrases (or even complete clauses), in the text of the Constitution. ...

Linguistic originalism is an important principle of constitutional interpretation, and it comes into play in many cases that require the Court’s resolution.  For example, does the original public meaning of “equal protection” invalidate state laws that ban interracial marriage? Or gay marriage? Does the original public meaning of “due process” encompass a substantive right to personal autonomy of the kind that includes the right of a woman to terminate a pregnancy?

But linguistic originalism does not answer all constitutional questions.  For some issues, it is necessary to invoke structural originalism, which is the principle that the original structure of the Constitution – including its features of federalism and separation of powers – are part of the original law that the Constitution establishes for the United States and, as “the supreme law of the land,” have binding implications and applications in particular contexts.  For example, it is structural originalism – not linguistic originalism – that yields the conclusion in Printz v. United States that Congress, even when acting within the scope of its Commerce Clause power, may not impose obligations on state and local officials that amount to a “commandeering” of the officers of a separate sovereign state.  Similarly, it is structural originalism – not linguistic originalism – that determines that a president may not order the seizure of the nation’s steel industry in defiance of congressional refusal to grant the president that authority (as the Court famously ruled in the Steel Seizure Case).

This is an extremely important point that has been lost on commentators who have criticized Justice Scalia for being nonoriginalist in cases like Printz (and, I would add, in standing and Eleventh Amendment cases).  "Structural originalism" exactly captures Scalia's approach in those cases.  (I wish I had come up with that phrase).

Whether it's an appropriate form of originalism depends in turn on one's attachment to textualism.  Textualists are likely to have concerns about it because (as Professor Foley says) it's disconnected from the particular words and clauses of the text.  As I've argued, Scalia's use of what Professor Foley calls "structural originalism" doesn't show he was a nonoriginalist, but it does show that he was, to some extent, not fully a textualist.

(As an aside, I can't help adding that, contrary to Professor Foley, I don't see the Steel Seizure case as an example of "structural originalism"; I think its outcome follows directly from the text, specifically the grant of "[a]ll legislative Powers" to Congress and the lack of any relevant grant of power to the President to alter domestic rights, roughly as Justice Black said.  See Chapter 3 of The Constitution's Text in Foreign Affairs).

Professor Foley's blog posts are based on this article forthcoming in the Georgia Law Review


Lawrence Rosenthal: An Empirical Inquiry into the Use of Originalism
Michael Ramsey

Lawrence Rosenthal (Chapman University, The Dale E. Fowler School of Law) has posted An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia (Hastings Law Journal, forthcoming) on SSRN.  Here is the abstract:

There is likely no methodological question of greater importance to constitutional law than whether adjudication should be based on the original meaning of the Constitution’s text, or instead reflect an evolving understanding in light of felt experience. Little effort, however, has been made to test empirically the claim of originalists that their methodology offers an effective vehicle for constitutional adjudication. 

This study is the first to assess the extent to which original meaning, in practice, proves able to resolve constitutional litigation. To do so, it examines Fourth Amendment jurisprudence during the career of a self-proclaimed originalist, Justice Antonin Scalia. Cases involving the Fourth Amendment’s prohibition on “unreasonable searches and seizures” were selected because stare decisis poses no apparent obstacle to the use of originalism in this area of constitutional law, and because the Fourth Amendment is typical of the kind of constitutional text likely to generate litigation.

The study found that originalism played a small role in Fourth Amendment jurisprudence during the study period; less than 14% of the opinions of the Court addressing a disputed question of Fourth Amendment law during Justice Scalia’s service were originalist. Despite Justice Scalia’s professed commitment to originalism, he voted on originalist grounds in only 18.63% of cases. The Court’s other professed originalist, Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. If anything, this study’s coding methodology likely overstates the prevalence of originalism during the study period. Voting patterns were not markedly different for justices who do not profess fealty to originalism. These results appear to reflect not a lack of commitment to originalism on the part of Members of the Court or the effects of nonoriginalist precedent, but rather the difficulty in applying original meaning in contemporary constitutional adjudication. This difficulty is likely generalizable to other areas of constitutional law, and casts doubt on the utility of originalism as an adjudicative methodology.

I think Professor Rosenthal is one of the most interesting and challenging academic critics of originalism, along with (just to name a few others) Eric Segall, Jamal Greene, Mitch Berman and Thomas Colby.


Michael Dorf on Linda Greenhouse on Scalia
Michael Ramsey

At Dorf on Law, Michael Dorf:  How Scalia Saved Originalism By Destroying It (commenting on this article in the New York Times by Linda Greenhouse).  From the introduction:

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

On Scalia and originalism:

Greenhouse is right that debates about constitutional interpretation pre-dated and now post-date Scalia. But she is wrong about his position in that debate and thus fails to appreciate his profound impact on it. Although Scalia was not the only self-styled originalist to shift from original intent to original public meaning, he was one of the first and certainly the most prominent. And as a consequence of his influence, the vast majority of self-styled originalists now favor original public meaning. That is a major and lasting legacy.

By reorienting originalism in constitutional interpretation, Scalia thus saved originalism from the very sorts of critiques that he himself had leveled against intentionalism in statutory interpretation. But in saving originalism he also destroyed it, because once originalism was loosed from 18th century attitudes (or 19th century ones in the case of provisions like the 14th Amendment), judges and scholars could plausibly claim fidelity to original meaning while voting for outcomes that were inconsistent with the specific intentions and expectations of earlier generations. Once the likes of Ronald Dworkin and Jack Balkin were able to embrace originalism (as Dworkin did as early as 1996 in his book Freedom's Law and as Balkin did more recently), originalism ceased to be a distinctive position in debates over constitutional interpretation.

Agreed on the first paragraph.  Many people have made this point, but few as succinctly and -- given Professor Dorf's profound disagreement -- as generously.

I respectfully disagree with the second paragraph, while noting that it's a fair criticism.  Some scholars do take original public meaning as a license to diverge sharply from the attitudes and assumptions of the enacting generation.  For Scalia, though (most of the time) it was not such a licence.  Scalia's originalism, while ultimately focused on the public meaning, was informed by the social context of the enactment, which he understood to be highly relevant to (though not identical to) the original public meaning.  Scalia may have opened the door to the Dworkin/Balkin versions of originalism, but nothing in his version compels them.

While on the subject of Scalia, I want to note two continuing objections to the way academic commentary has often approached his legacy.

(1)  The claim, made by Greenhouse and also by Richard Hasen (author of the new book on Scalia, see here) that Scalia wrote "few memorable majority opinions" (Geeenhouse says except for DC v. Heller; Hasen adds "outside the criminal procedure area").  That's a fair number of exceptions already -- but being midway through teaching first-year constitutional law I can add a few others that are centerpieces of our course: Lujan v. Defenders of Wildlife (the standard citation and textbook example of modern standing law); Printz v. United States (a definitive anti-commandeering case in federalism law); and Employment Division v. Smith (redefining modern free exercise law).  That's starting to sound like quite a few.  But interestingly, as discussed here, these cases don't reflect a textualist approach (whether they are originalist is another question).

(2) The claim, as stated by Professor Dorf later in his post, that "[l]ike just about all justices, Scalia's votes were best explained in nakedly ideological terms. He typically voted for conservative outcomes and then (sometimes) offered originalist rhetoric to rationalize those results."  David Dorsen's book The Unexpected Scalia shows to the contrary that Scalia often reached liberal results, or results that are not easily categorized.  (Among the latter are Printz and Smith, which may have seemed like conservative opinions when they were announced, but which are now invoked, respectively, to defend liberal state laws against conservative religious objections and to defend liberal state policies against conservative national policies).