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08/16/2019

Kian Hudson on Originalism
Michael Ramsey

At Liberal Currents, Kian Hudson (Deputy Solicitor General of Indiana): Originalism: Its Problems and Its Promise.  Here is the introduction:

In 2016 federal prosecutors charged Terance Gamble with violating the federal law prohibiting felons from possessing firearms. Gamble’s case could hardly have been more run-of-the-mill; federal prosecutors bringthousands of these felon-in-possession cases each year. Yet Gamble argued that because he had already pleaded guilty in Alabama to a felon-in-possession charge arising from the same incident, the Fifth Amendment’s Double Jeopardy Clause (which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”) barred the subsequent federal prosecution. Supreme Court decisions going back to the mid-nineteenth century, however, have held that criminal statutes adopted by different sovereign authorities necessarily constitute different offenses and that the Constitution therefore permits consecutive state-federal or federal-state prosecutions. Gamble’s case, which the Supreme Court decided last June, asked the Court to reconsider this “separate sovereigns” doctrine.

Putting aside precedent (a crucial issue we’ll return to below), how should a judge approach such a question? One method—commended by Ilan Wurman’s A Debt Against the Living: An Introduction to Originalism—would ask whether the Double Jeopardy Clause was originally understood to prohibit a prosecution under federal law when the defendant has already been prosecuted for the same conduct under an otherwise-identical state law. Other options include asking, a la Richard Posner, whether the Double Jeopardy Clause could be interpreted to bar such prosecutions and whether it would be goodpolicy to do so. Or a judge might channel Ronald Dworkin and ask whether prohibiting subsequent prosecutions is more or less consistent with the Double Jeopardy Clause’s underlying principles.

Although these and other alternatives continue to have their proponents (especially in the legal academy), the originalism defended by Wurman and others is ascendant. Many of the Supreme Court’s decisions in the latter half of the twentieth century partake not so much in the structured discipline of a classical symphony as in the self-conscious improvisation of a free-style jazz session. Today, however, Republicans have elevated self-proclaimed originalists Neil Gorsuch and Brett Kavanaugh to the Supreme Court, and scores of other originalist-minded jurists have joined the lower state and federal courts. Originalism can even claim bipartisan support: Elena Kagan, President Barack Obama’s second Supreme Court appointee, declared to the Senate Judiciary Committee that “we are all originalists,” explaining that every judge seeks to “apply what they [the Framers] say, what they meant to do.”

Originalism is not without its detractors, of course. In his recent Liberal Currents review of Wurman’s book, Adam Rust reprises many of the common critiques. Notably, Rust declines to raise two of the most popular criticisms: he argues neither that originalism produces outcomes that are practically or morally unacceptable, nor that it improperly subjects modern Americans to rule by the dead hand of the past, as Thomas Jefferson once mused. Rust instead says originalism does not work even on its own terms: he argues originalism is (1) practically impossible, (2) too beset by internal disagreements to give judges concrete guidance, (3) unable to cabin judicial discretion, and (4) a cover for conservative policy preferences.

Some of these arguments point to genuine problems for originalism—and Rust does not even mention the problem of precedent, perhaps the single greatest difficulty confronting originalists today. Yet these problems simultaneously underscore one of the theory’s great virtues: the problems arise because originalist decisions can be wrong and can be shown to be so. Originalist decisions are, in other words, falsifiable. And they are so precisely because originalism obliges judges to ground their decisions in objective evidence regarding what the Constitution’s provisions were originally understood to mean. No theory of constitutional adjudication can make judges unbiased or omniscient. But originalism’s falsifiability gives it the resources to identify and correct decisions that are unsubstantiated, inconsistent, or unprincipled. The problems Rust has identified, far from undermining originalism, underscore its promise—that constitutional interpretation, like the Constitution itself, can slowly become “more perfect.”

And in conclusion:

Judges’ ability to mask policy choices—via precedent or anything else—is an intractable problem of constitutional law. Not even originalism can fully solve it. It cannot prevent even the most conscientious of judges from exercising policymaking discretion—not least because a properapplication of originalism will interpret some constitutional provisions to require judges to account for policy considerations in applying the law to facts.

But that does not mean that we should discard originalism and embrace forthright judicial policymaking. There is a reason why courts generally do not announce that they are vindicating their personal policy preferences (at least unless the law authorizes them to do so). The occasional hypocritical opinion is, we might say, the compliment judicial vice pays to jurisprudential virtue.

Originalism’s promise is not that it will ensure judges will always reach the right answer. Its promise, rather, is that it leads judges to at least ask the same question. And, as Gamble (and United States v. Haymond, another recent criminal case with dueling originalist opinions) demonstrates, this—rather more limited—promise is already being borne out.

As noted in the introduction, the essay is a response to Adam Rust's essay (also at Liberal Currents) reviewing Ilan Wurman's book: Original Leanings: Wurman’s Originalism as Judicial Activism.

(Thanks to Adam Gurri, editor-in-chief of Liberal Currents, for the pointer.  Both essays are outstanding, and on a personal note it's great to become acquainted with the Liberal Currents site, which I hadn't known about before and which has a range of interesting content).