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Mike Rappaport


Michael L. Smith: Abandoning Original Meaning
Michael Ramsey

Michael L. Smith (University of Idaho College of Law) has posted Abandoning Original Meaning (Albany Law Review, Vol. 86, 2023 (forthcoming)) (58 pages) on SSRN.  Here is the abstract:

In the high profile, politically salient cases of New York State Rifle and Pistol Association, Inc. v. Bruen, Dobbs v. Jackson Women’s Health Organization, and Kennedy v. Bremerton School District, the Supreme Court had the opportunity to take an originalist approach to the Constitution and interpret it based on its original public meaning. The Supreme Court declined to do so. Instead, the Court began and ended its analysis with an investigation of history and tradition, with virtually no discussion of the Constitution’s meaning.

The Court’s opinions in Bruen, Dobbs, and Kennedy reveal a severe disconnect between originalist theory and judicial practice. Academic originalists frequently couch their theories in terms of what the Court has done or is expected to do. They present originalism to political and public audiences, claiming that particular Justices are originalists, predicting case outcomes, and critiquing judicial opinions based on their theory of originalism. Originalists must reckon with the fact that when it came time for the Court to issue its most crucial opinions, the Court not only refused to consider their work, but it refused to even consider the field of constitutional interpretation that they have spent decades developing.

This Article further addresses how critics of the Court may use the Court’s abandonment of original public meaning to amplify particular critiques of the Court and highlight the politicization of judicial decision making. These critics, however, should not attempt to argue against the Court on its own terms, as the ambiguous and undefined nature of the Court’s history and tradition approach gives the Court discretion to shape the rules of any dispute to favor the desired outcomes of the Court’s conservative majority.

(Via Larry Solum at Legal Theory Blog, who says: "There is much in this article with which I agree. Highly recommended.  Download it while it's hot!")

I agree that the Court's recent cases could have done more to focus on the text's original meaning.  But I think the article substantially overstates.  The Court is necessarily a practical institution that can't decide cases on a completely clean slate, and so it can't proceed in the same manner as academic originalism.  But the main cases of last term, at least, went mostly in an originalist direction.

(1) As to Dobbs, the Court took as its starting point the propositions that the due process clause is the source of substantive unenumerated rights and that (per Washington v. Glusckberg) the due process rights are only those supported by history and tradition.  Thus it had a somewhat nonoriginalist starting point that didn't rest on the text directly.  But I don't think that going all the way back to the text would have led to a different result; the short of it is that evidence of the existence of an abortion right at the time of the Fourteenth Amendment's enactment is very thin.  So Dobbs was, at least, on originalist-influenced decision. (See this discussion of Dobbs and originalism by Joel Alicea)  (2) As to Bruen, the Court did start with the Second Amendment's original meaning (though it finessed the question of whether it was the 1791 meaning or the 1868 meaning).  It concluded (rather quickly) that the right to "bear arms" meant the right the carry arms in public, subject to regulations that did not "infringe" that right; it then turned to history to evaluate what regulations were considered not infringing at the time of enactment. That seems like a plausible original meaning analysis. (See my discussion here.) (3) Finally, as to Kennedy, I think the Court's originalism was at its weakest: the Court assumed that the free exercise clause requires nondiscrimination as to religion in conditions of government employment, but it did not ask whether the original meaning of the text (precluding laws "prohibiting the free exercise [of religion]") directs that result.  As Will Foster argued on this blog, it's not at all obvious that the text had this meaning.

Even with these reservations, the last term was probably the best term for originalism at the modern Court since, well, ever.