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Michael Dorf on Originalism and Discontinuity (With my Response)
Michael Ramsey

At Dorf on Law, Michael Dorf: Originalism's Discontinuity Problem (criticizing Judge John Bush's opinion in Pre-Term Cleveland v. McCloud, discussed here).  Professor Dorf makes several interesting points, the most important of which is this:

I come now to [Judge Bush's] point (2) [that "where a case presents a constitutional question of first impression, a lower court judge should apply the Constitution's original public meaning"] ...  Suppose that SCOTUS precedent clearly establishes some rule X. Suppose further that rule X doesn't directly cover some new situation but that faithful application of the general principles giving rise to and compatible with X appear to cover the new situation. However, applying X here would lead to a result contrary to the original meaning of the underlying constitutional provision that the SCOTUS interpreted using nonoriginalist methods to derive X. Under these circumstances, Judge Bush says that an originalist lower court judge like himself should apply the original meaning rather than "extend" X.

But here's the thing. Anyone who has sat through even the first few weeks of law school knows that there is no sharp distinction between "applying" a precedent and "extending" one. The whole enterprise involves figuring out how far the rationale of one rather than another rule or standard applies and going that far but no further. Lines need to be drawn, and they are sometimes arbitrary, but if one draws lines with care and attention to the underlying policy rationales, one can smooth over the boundaries between one rule or standard and another. That's nearly impossible to do if a rule or standard abruptly cuts off when a judge determines that some new case would involve its "extension" rather than its "application" and therefore the case is governed by the wholly different purported original meaning of the constitutional text.

For example, courts would sensibly construe the First Amendment's Establishment Clause to forbid the use of taxpayer money to purchase King James Bibles and distribute them to every public school child. Courts also would sensibly construe the First Amendment's Free Exercise Clause to require that a public fire department put out fires at churches no less than at movie theaters. So some kinds of taxpayer subsidies for religion are impermissible; others are effectively required. In between there may be subsidies that are permitted but not required. The dividing lines will need to be drawn with sensitivity to a variety of considerations. It's possible to do that if you pay attention to the underlying interests. It's much harder to do that if you have one regime based on precedent and an adjacent regime based on a completely different view based on (supposed) original meaning. And there is nothing special about that set of examples.

Justice Scalia partially recognized this problem. He wrote (both by himself in A Matter of Interpretation and with Bryan Garner in Reading Law) that stare decisis is an exception to originalism and textualism, adding (in both places) that it is likewise an exception to every theory of interpretation. He was right about originalism but that addition about other theories and methods is wrong. Stare decisis is not an exception to modes of statutory and constitutional interpretation that place precedent at their core--like Dworkin's law as integrity or Strauss's common law constitutionalism. If you build your theory based on precedent, then you will still sometimes have line drawing problems, but you won't have whole bodies of inconsistent law directly adjacent to one another--as you do if you follow the approach Judge Bush advocates.

It is bad enough that originalists don't have a solution to the discontinuity problem. What's worse, as Justice Scalia's writings and Judge Bush's recent concurrence illustrate, they don't even appear to be aware of the special problem their methodology creates.

My response: I don't see a problem here. 

First, discontinuities abound in law.  Judges routinely decline to extend (i.e., read narrowly) cases they don't agree with on policy grounds, and commentators routinely encourage them to do so.  True, there's a fuzzy line at times between applying and extending (and maybe, as Professor Dorf says earlier in the post) Judge Bush was on the wrong side of that line in McCloud.  But that observation doesn't invalidate the enterprise of declining to extend cases with which one disagrees (for whatever reason).  So I don't see why this is a special problem for originalists. 

Second, I don't see why discontinuity is a problem at all.  There are lots of areas of law where there are special rules that exist because of some historical peculiarity.  Law isn't a seemless web.  So what?  We handle it well enough -- we just say, this area of law has some historical oddities.  The idea that there must be a single, all-encompassing unity to law seems quite unrealistic (and quite nineteenth-century).  Thus, again, there's no particular problem for originalism.  It's actually a pretty easy explanation to say: there are some historical oddities in this area of law because the Court went off the originalist rails at some point, but we declined to extend those rulings.

Here's an example from my article about federal common law and the original meaning of the supremacy clause.  In the Sabbatino case, the Court held that the common law act of state doctrine was actually a part of constitutionally preemptive federal common law that displaced even unambiguous contrary state law.  (The act of state doctrine holds that courts generally will not judge the validity of the acts of foreign states done in their own territory).  Sabbatino's rationale for giving it preemptive effect had to do with the federal government's supposed exclusivity in foreign affairs.  Let's assume the Court was wrong about the preemptive effect of the act of state doctrine as an originalist matter (as I argue in the article) but also assume that for stare decisis reasons we want to preserve the Sabbatino holding.  Some courts and commentators argue that the Sabbatino case should be read to establish a broad constitutional preemption of state laws that implicate foreign affairs.  But I say that (assuming Sabbatino was wrong as an original matter) it should not be extended to matters other than the act of state doctrine itself.

Maybe this result creates a "discontinuity" in Professor's Dorf's terms, in the sense that state laws implicating the act of state doctrine are preempted and state laws implicating other foreign affairs matters are not, without any explanation other than (a) Sabbatino was wrongly decided, and (b) we're keeping it (but reading it narrowly) and not extending it.  But again, so what?  That seems like a good enough explanation to me.  I don't see the problem.

I agree with Professor Dorf to this extent:  First, it won't do to "refuse to extend" a past case based on some immaterial difference in the new case.  For example, Sabbatino was about the acts of Cuba.  I wouldn't say that we should refuse to extend it to the acts of other foreign sovereigns.  Nothing about the historical act of state doctrine turned particularly on Cuba; it was a general rule.  Second, what counts as an "immaterial difference" may be subject to dispute in some cases (thus the fuzzy line between "applying" a case and "extending" a case).  But again, the existence of some uncertainty at the margins doesn't negate the whole enterprise.