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Originalism in Uzuegbunam v. Preczewski
Michael Ramsey

Yesterday the Supreme Court ruled 8-1 for the claimant in Uzuegbunam v. Preczewski, in an originalist opinion by Justice Thomas.  The issue was whether a claim for nominal damages preserves an otherwise moot claim.  (SCOTUSblog coverage here).  Thomas wrote that nominal damages were sufficient to maintain an action at common law at the time the Constitution was ratified.  (Chief Justice Roberts dissented.)

From the introduction to the substantive part of Thomas' opinion:

In determining whether nominal damages can redress a past injury, we look to the forms of relief awarded at common law. “Article III’s restriction of the judicial power to ‘Cases’ and ‘Controversies’ is properly understood to mean ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 774 (2000) (quoting Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102 (1998)); cf. Memphis Community School Dist. v. Stachura, 477 U. S. 299, 306 (1986) (relief for “§1983 plaintiffs . . . is ordinarily determined according to principles derived from the common law of torts”).


The award of nominal damages was one way for plaintiffs at common law to “obtain a form of declaratory relief in a legal system with no general declaratory judgment act.” D. Laycock & R. Hasen, Modern American Remedies 636 (5th ed. 2019). For example, a trespass to land or water rights might raise a prospective threat to a property right by creating the foundation for a future claim of adverse possession or prescriptive easement. Blanchard v. Baker, 8 Me. 253, 268 (1832) (“If an unlawful diversion [of water] is suffered for twenty years, it ripens into a right, which cannot be controverted”). By obtaining a declaration of trespass, a property owner could “vindicate his right by action” and protect against those future threats. Ibid. Courts at common law would not declare property boundaries in the abstract, “but the suit for nominal damages allowed them to do so indirectly.” Laycock, supra, at 636 ...

In an interesting post at Dorf on Law, Michael Dorf objects to Thomas' methodology: Old-School Intentions-and-Expectations Originalism in the Nominal Damages Case.  He writes:

The Court's cases purport to derive the prohibition on advisory opinions and the related doctrines of standing, ripeness, and mootness from the language of Article III extending the judicial power of the United States to "cases" and "controversies." A public-meaning originalist opinion in Uzuegbunam would therefore consult late 18th century dictionaries, corpuses, and perhaps other sources to determine whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a "case" or "controversy." But just as the expectations of Americans circa 1868 that schools would remain racially segregated is not dispositive of the scope of "equal protection" in the Fourteenth Amendment, so too, for a public-meaning originalist, the concrete expectations of eighteenth-century Americans regarding nominal-damages actions would not be critical to the question in Uzuegbunam, which is this: Do nominal-damages actions fall within the original public meaning of "cases" and "controversies."

Is that how Justice Thomas proceeds in Uzuegbunam? Nope. Nor does Justice Thomas say that the meaning of "cases" and "controversies" is indeterminate with respect to nominal-damages-only cases and that therefore the Court must turn to what originalists sometimes call "construction," a process that comes after interpretation. Justice Thomas simply makes no effort whatsoever even to ask, much less to answer, the threshold semantic question of what the words "cases" and "controversies" meant in 1789.

That is not to say that the Uzuegbunam proceeds in living Constitutionalist mode. On the contrary, the opinion is highly originalist--but it engages in old-school intentions-and-expectations originalism. Justice Thomas extensively canvasses English, colonial, and early post-ratification cases, all with the evident purpose of showing that the framers and ratifiers of the Constitution intended and expected the courts to hear cases in which the plaintiff sought only nominal damages.

And in conclusion:

Of course, there is a connection between original public meaning and original intentions and expectations, often a strong one. In many contexts, what the framers and ratifiers intended and expected reflects the words they used. For that reason, some of the evidence that bears on one kind of originalism can also bear on the other. But the enterprises are not identical, a point that is crucial to originalists' argument that they can have their originalism without sacrificing canonical cases (like Brown v. Board of Education and the modern sex discrimination decisions) that adopt interpretations at odds with the framers' and ratifiers' intentions and expectations.

In one of my prior articles on modern originalism, I described the slippage between the scholars' version and the version practiced by the justices and politicians as a bait and switch. I wrote that the scholars

make originalism respectable by answering objections leveled at 'expectations originalism', but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers' and ratifiers' expected applications in considering concrete cases.

I had in mind there--and said both there and elsewhere--that the move was especially pernicious because it camouflages results reached on ideological grounds. We learn from Uzuegbunam that the bait-and-switch has become so routine for the Justices that they deploy it even in non-ideologically-divisive cases and apparently unwittingly.

I disagree.  I don't see a problem with Thomas' methodology as a matter of determining public meaning.  In the context of the Constitution (a legal document), the best way of understanding the original legal meaning of "Cases" and "Controversies" -- and, relatedly, the "judicial Power" -- is to look to the common law practice under English and American law.  This is a common way of understanding aspects of judicial power and procedure that the Constitution appears to carry over from English law.  For example, the original meaning of constitutional terms such as jury trial, due process, confrontation of witnesses, etc., are routinely determined that way.  Its not some nefarious substitution of expectations for public meaning.  The original public meaning, for constitutional practices adopted from common law, was the common law meaning (unless there was some reason to think the Constitution was departing from it).

Professor Dorf argues that public meaning originalists should consult "dictionaries, corpuses, and perhaps other sources to determine whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a 'case' or 'controversy.'"  But to do that (to the exclusion of asking what courts were actually doing at the time) would prompt criticism that the originalist inquiry was artificially divorced from actually historical practice.  And rightfully so.  The best evidence of what a "case" was in 1788 was what cases at the time actually consisted of.