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More on Originalism and Janus v. AFSCME
Michael Ramsey

At Balkinization, Marty Lederman: Exacerbating the real error in Abood: Is there any justification, "originalist" or otherwise, for the Court's holding in Janus that deducting agency fees abridges the freedom of speech?  On the Court's thin originalist justification for its rule: 

Justice Alito [in the majority opinion] then simply asserts, as if night followed day, that "[c]ompelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns [as compelled speech]" (emphasis added, and citing three modern cases, including Abood, that are no more explanatory than Janus).  Why?  Here's the entirety of his reasoning:

As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted).

That's it.  A single quotation from a Virginia statute drafted by Thomas Jefferson and enacted by the Virginia legislature five years before the First Amendment was ratified.  Similarly, a few pages later Alito again cites the same sentence from the 1786 Virginia bill as alleged support for the Court's insistence that overruling Abood and holding that the agency fee is unconstitutional is consistent with "the original understanding of the First Amendment":

[P]rominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed.  As noted, Jefferson denounced compelled support for such beliefs as "sinful and tyrannical," and others expressed similar views.

Who are these "others" in the founding generation who allegedly expressed "similar views"?  Alito cites only two:  Noah Webster and Oliver Ellsworth (both of whom were invoked in the amicus brief of certain California teachers).  But neither of those men suggested that compelled payments are unconstitutional, let alone violations of the Free Speech Clause.  Ellsworth wrote in 1787 that laws requiring people to “make a public declaration of … belief … in order to qualify themselves for public employments” were “useless, tyrannical, and peculiarly unfit for the people of this country”--but of course Illinois does not require its employees to make any declaration of belief, public or otherwise.  Similarly, in 1790 Webster condemned “test laws, oaths of … abjuration, and partial exclusions from civil offices” as “instruments of slavery” and “badge[s] of tyranny.”  He didn't write anything at all about compelled payments.

And so it turns out that the only support for the Court's central assumption--that compelling a person to subsidize the speech of other private speakers raises First Amendment concerns "similar" to compelled speech itself--is a single statement in a Jefferson-penned Virginia statute from 1786.

After further discussion of the Jefferson quote, he issues this challenge:

I'm genuinely curious:  Does anyone--especially, but not limited to, originalists--think that the "sinful and tyrannical" quotation does the trick, or that there's any other basis, neglected by the Court, for concluding that the Free Speech Clause prohibits the state from compelling its nonunion employees to make payments to third parties for expression that the employees disapprove?

I generally agree with Professor Lederman -- I've expressed doubts several times about the originalist foundations of the Janus conclusion (thanks to Professor Lederman for quoting one of these posts).  And I don't think the Jefferson quote is sufficient

Here are my thoughts in limited defense of the Court.

(a) Abood, the case Janus overruled, was (jurisprudentially speaking) an abomination.  It declared a principle (that compelled subsidy of private speech violated the First Amendment) without any substantial basis for doing so, and then it applied a watered-down and nebulous version of that principle with the result that most -- but not all! -- mandatory dues actually were constitutional.  But it required, in pursuit of that very limited rule, that courts to engage in intricate line-by-line review of union expenditures to determine which ones did and did not meet the Abood standard.  For full display of the multidimensional awfulness of this project, see Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991), in which members of the Court assessed a detailed list of petty expenditures and disagreed among themselves as to which ones required an Abood exclusion.  (Yes, I still have a personal grudge from working on that case).  I would not be surprised if Lehnert was the case that set Justice Scalia irrevocably on the course to slay Abood with whatever weapon available.  Unsurprisingly, the majority in Janus cited Lehnert as an illustration of Abood's unworkability.

(b) But, as Professor Lederman suggests, why not just overrule Abood and say there is no constitutional objection to compelled dues?  I think that would have been hard for the Court to justify in light of the campaign finance cases.  The Court has said repeatedly that contributing money to campaigns is speech protected by the First Amendment.  But if voluntary contributions are akin to voluntary speech, then compelled contributions are akin to compelled speech.  I'm surprised that the Janus majority did not make more of this analogy.  But I suspect it was on their mind, at least as an unstated assumption.

(c) The problem here, from an originalist perspective, is that the equation of campaign contributions and speech is also (in my view) poorly grounded in originalist evidence.  But it is firmly grounded in precedent.  The Court may well have thought that saying compelled contributions are not speech would destabilize the rule that voluntary contributions are speech.  And it (or at least the Justices in the Janus majority) are very committed to that view.

I think this illustrates the difficulty of doing a pure originalist adjudication in an area with so much precedent.  I'd describe the majority as taking the simplest path to getting rid of what it saw as the embarrassing and unmanageable Abood standard without undermining neighboring areas of doctrine.

That may not be satisfactory from an originalist standpoint -- I think it's not, and I would have preferred if Justice Alito left out the originalist evidence altogether and relied on an analogy to other precedents.  But I think the best way to see Janus is as an effort to (as Justice Scalia sometimes put it) "clean up the law."