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08/22/2019

Josh Blackman on Originalism in the Fifth Circult
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Fifth Circuit Divides on Qualified Immunity, and Originalism.  From the introduction:

Today the Fifth Circuit issued a divided en banc decision in Cole v. Hunter. The case considered whether two police officers who shot the Plaintiff were not entitled to qualified immunity. Nine out the sixteen active judges on the en banc court found that qualified immunity was not warranted. (Two senior judges who were on the original panel joined the majority.) Judges Ho and Oldham wrote a joint dissent, which was joined by Judge Smith (see pp. 54-64). Their decision warrants a careful study. It considers how lower court judges should, and should not be originalists.

First, the duo notes that modern qualified immunity doctrine has been criticized as "ahistorical and contrary to the Founders' Constitution." They cite Will Baude's article in the California Law Review, as well as a rejoinder from Aaron Nielson and Chris Walker.

Ho and Oldham, as lower-court judges, see no role in this debate:

As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

Second, Ho and Oldham highlight an important reason why originalism has gained so much salience in debates about criminal justice: it often operates as a one-way ratchet to help the accused, but not the police. Originalists on the right, and non-originalists on the left, are all-to-happy to form an alliance that advances these civil libertarian ends. Indeed, progressive groups have begun to craft "Gorsuch briefs" to peel off conservative votes on textualist grounds. ...

Plus much more, including a response from Judge Don Willett and a counter-response from Judges Ho and Oldham.

In conclusion: 

For some time, originalism existed primarily in the academy, and occasionally on the Supreme Court. No longer. As the number of originalist judges on the circuit courts continues to grow, these sorts of debates will occur with increasing frequency. I welcome these discussions, which I [that is, Professor Blackman] discuss in my new essay, Originalism and Stare Decisis in the Lower Courts.