The Originalism Blog

Elias Neibart on Originalism, Tradition and ElsterMichael Ramsey

At the Harvard Law Review Blog, Elias Neibart: Trading Jabs Over Tradition.  From the introduction:

Tradition. It’s the talk of the town — especially in originalist circles. But what role should it play in constitutional argument? Even fellow originalists can’t agree. Take Vidal v. Elster. There, Justice Barrett agreed with the Court’s holding announced by Justice Thomas: “[T]he particular restriction before us, the names clause in [the Lanham Act], does not violate the First Amendment.” But she and Justice Thomas disagreed on at least one methodological front: When should an originalist Court turn to postratification tradition?

Before we get there, here are the facts. “Steve Elster sought to register the trademark ‘Trump too small.’” The Patent and Trademark Office (PTO) refused to do so. The PTO invoked the so-called “names clause” of the Lanham Act, the federal statute governing trademark law. The names clause “prohibits registration of a trademark that ‘[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.’” Elster argued that this provision violated the First Amendment.

The Court unanimously disagreed, upholding the constitutionality of the names clause. But the Court was methodologically fractured in Elster. Although four separate opinions were filed, this post will focus specifically on the methodological back-and-forth between Justice Thomas and Justice Barrett. Let’s jump in.

See, in Elster, Justice Thomas discussed common law trademark cases that had been adjudicated after the ratification of the First Amendment. From those cases, he concluded that at common law, “a person generally had a [trademark] claim only to his own name” ­— and not the name of another living person. Accordingly, he viewed the names clause to be consistent with “common-law tradition” and, thus, it passed muster under the First Amendment.

Concurring in part, Justice Barrett took issue with some parts of Justice Thomas’s opinion. For starters, she thought that Justice Thomas’s historical evidence was scanty. She was “less sure” that the common law contained “a rule akin to the names clause.” Indeed, “if such a common-law rule existed,” she thought the “majority opinion” failed to “identify it.”  At bottom, she found it “difficult to say that the names clause is constitutional solely because of its historical,” common-law “pedigree.”

But her disagreement was also a methodological one. Because “[e]ven if the Court’s evidence were rock solid, [she] still would not [have] adopt[ed]” the Court’s approach.

Justice Barrett pointed out that postratification tradition is a useful tool. But it “is not an end in itself.” In these pages, I recently made a similar point. Tradition should be aiming at something. Yet, Justice Barrett observed that the “[t]he Court does not (and could not) argue that the late-19th and early-20th century names-restriction tradition serves as evidence of the original meaning of the Free Speech Clause.” Instead, she viewed the Court as “present[ing] tradition itself as the constitutional argument.” And, for Justice Barrett, a “rule rendering tradition dispositive is,” simply, “a judge-made test.”

To be sure, Justice Barrett isn’t against judge-made tests. Indeed, she noted that “[i]n the course of applying broadly worded text like the Free Speech Clause, courts must inevitably articulate principles to resolve individual cases.” Instead, she just wanted the Court to be intellectually honest. Her “generally applicable principle” approach is judge-made, but she viewed the “common-law tradition” test as equally judicially created. And she saw no “good a reason to resolve this case using [Justice Thomas’s] approach rather than by adopting a generally applicable principle.”

I agree that this is a central debate among the originalist Justices, with the overarching question being what to do when the standard originalist materials don't provide a determinate answer.  Justice Kavanaugh's concurrence in Rahimi is thus in a sense a response the Justice Barrett in Elster.  I'm sympathetic to Barrett's critique of untethered tradition, but I don't see that she has a fully articulated alternative.

Timothy Sandefur: Eminent Domain in the Washington and Arizona ConstitutionsMichael Ramsey

Timothy Sandefur (Goldwater Institute) has posted Eminent Domain in the Washington and Arizona Constitutions (NYU Journal of Law & Liberty (forthcoming)) (85 pages) on SSRN.  Here is the abstract:

The Constitutions of Arizona and Washington bear a special relationship. When Arizonans convened to draft a constitution in 1910 (adopted in 1912) they borrowed many provisions from Washington’s 1889 Constitution. These include not only provisions relating to freedom of speech and the right of privacy, but also those relating to private property. The remarkable fact is that the Washington and Arizona framers chose to adopt what were then the most innovative and creative new methods for protecting such rights. One of the most dramatic examples concerns the power of eminent domain. This article traces the origin and meaning of this unique constitutional provision. In particular, it examines four distinct limits on eminent domain that were incorporated into the Washington and Arizona takings clauses: the explicit ban on takings for “private use,” the compensation requirement for the “damaging” of property, the requirement that payment precede a taking, and the ban on “offsetting”—that is, reducing the compensation award by the amount of purported “benefit” resulting from a condemnation. This rich history teaches lessons about constitutional protections for property rights that are important not just to Washington and Arizona, but to the many other states whose founders sought to erect meaningful but flexible protections for property owners.

RELATED: Also recently posted on SSRN by the same author, The "Mandatory" Clauses of State Constitutions (Gonzaga Law Review (forthcoming)) (65 pages).  Here is the abstract:

Six state constitutions—those of California, North Dakota, South Carolina, Utah, Washington, and Arizona—include clauses declaring that everything in the state constitution is “mandatory” unless otherwise provided. This seems a strange thing to include; one might assume everything in a state’s fundamental law is mandatory. But these provisions, which I call Mandatory Clauses, originated during the wave of reform that swept the United States in the late nineteenth century, and they represent an effort to limit or even prohibit what is today known as “judicial deference.” That is, they were written by framers who wanted courts to be more diligent than they had been in enforcing constitutional commands or prohibitions, and less willing to accede to the acts or omissions of the legislative or executive branches. This article examines the history behind Mandatory Clauses and the problems their creators sought to fix. It concludes with some observations about how courts today should implement these clauses.

The First Amendment's Restrictions on CongressMike Rappaport

I agree with almost all of Mike Ramsey's discussion of how the First Amendment restricts the judiciary and executive.  

But at the end of his post, Mike seems to admit that self enforcing treaties -- treaties that do not require Congress to pass implementing legislation -- would not be restricted by the First Amendment.  Perhaps he is correct, but I am not so sure. 

Here is another possibility.  A treaty requires ratification by the Senate.  And the Senate is part of Congress.  Therefore, the Senate cannot ratify a treaty that violates the First Amendment. 

A similar result would apply to actions by a single house that abridge the freedom of speech.  For example, if the House were to use its inherent contempt power in a way that violated the freedom of speech, one might argue that the First Amendment would preclude this, because the House is part of the Congress. 

I do not claim this is the only way to read the Treaty Clause and the First Amendment.  It is possible that the First Amendment could be read only to restrict the Congress acting as a whole.  But it is also quite possible that the First Amendment applies to the separate actions of the House.  

Nicholas Parrillo: Nondelegation, Original Meaning, and Early Federal TaxationMichael Ramsey

Nicholas R. Parrillo (Yale Law School) has posted Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics (Drake Law Review, Volume 71, pages 367-434 (2024)) (94 pages) on SSRN.  Here is the abstract:

Proponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings. 

This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.

Originalism and SEC v. JarkesyMichael Ramsey

At Volokh Conspiracy, Steven Calabresi celebrates the Supreme Court decision yesterday in SEC v. Jarkesy: SEC v. Jarkesy: A Win for the Separation of Powers and the Right to Civil Jury Trial.  From the introduction:

Chief Justice Robert wrote an excellent, thorough, and overwhelmingly persuasive majority opinion in S.E.C. v. Jarkesy, 603 U.S. __ (2024), holding that the Securities and Exchange Commission could not try civil fraud suits before its own Administrative Law Judges. It must instead try them in federal District Court where the Seventh Amendment right to a civil jury trial must be available in all cases which were "[suits] at common law," as opposed to suits in equity and in admiralty.

The Supreme Court did today for the Seventh Amendment roughly what it did for the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008). It held, in a narrow opinion, that Congress and the President cannot completely ignore the Seventh Amendment, just as they used to completely ignore the Second Amendment before Heller was decided. This is the case at least in civil fraud cases brought by the S.E.C.

The Chief Justice's opinion was joined by five other justices: Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts' opinion examined originalist, textualist, and doctrinal sources of law. In much of the opinion, Chief Justice Roberts makes an overwhelmingly powerful argument that S.E.C. fraud cases are in the words of the Seventh Amendment "[s]uits at common law" which can only be tried by a jury and not suits in equity or admiralty where the right to jury trial has not historically been available.

I agree that this is predominately a textualist/originalist result.  The majority and dissent scrap over which way precedent points, but I think that's largely beside the point because the textualist/originalist case is strong and the precedent is, in any event, not well entrenched or the source of substantial reliance.

But I also agree with the analysis from a while back by Will Baude that the Seventh Amendment isn't really the source of the SEC's constitutional problem in this case.  The Seventh Amendment guarantees a jury rather than a judge. The SEC process in Jarkesy did not even provide an Article III judge -- just an executive officer with a judicial-sounding title.  As a result, the SEC's process violated separation of powers by having an executive officer exercise the judicial power (and, I would think, also violated the due process clause).  Justice Gorsuch in concurrence notes the interrelatedness of Article III, the due process clause and the Seventh Amendment as applied to Jarkesy.  He does not go so far as to say that the case should come out the same way even without the Seventh Amendment, but I would (and I think Professor Baude would as well.)

The Puzzle of “Congress shall make no law…”Michael Ramsey

In a recent post, Eric Segall criticized the Supreme Court for ignoring the Constitution’s text, and gave as a leading example the First Amendment.  He argued:

The first amendment says the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let's begin with the first word, "Congress." That term is neither ambiguous nor imprecise. It refers to a specific institution: the United States Congress. Yet, the first amendment's speech and religion protections have been applied to all government institutions, state and federal, including the executive and judicial branches. 

It is one thing for the Court to hold that the 14th Amendment applies the first amendment to the states, a reasonable (if not persuasive) interpretation of the text and history of the 14th Amendment. But it is quite another to read the text of the first amendment and apply it to the President, a governor, or a state judge. The word "Congress" simply can't bear that meaning. 

I’m happy to criticize the Court for ignoring the text, but I think the concern here is overstated. Mostly (but not entirely) the reference to Congress is consistent with modern law, though explaining why is an interesting exercise.

(1)  To begin, the concern about application to state and local entities is entirely misplaced. The First Amendment doesn’t apply directly to the states and no one thinks it does. On an originalist/textualist analysis, "the freedom of speech" (for example) applies to the states, if at all, through the privileges or immunities clause of the Fourteenth Amendment.  (Modern law applies it through the due process clause but essentially no originalists agree; some originalists reject incorporation altogether, though most I think agree with the privileges or immunities approach.)  The Fourteenth Amendment says that “No state shall make or enforce any law which shall abridge the privileges or immunities …”, so assuming that the freedom of speech is a privilege or immunity, the Amendment seems obviously to apply to all branches of the states’ governments, including the executive, the courts, and any local subdivisions exercising the delegated authority of the state.

(2) As applied to the federal government, there is a textual puzzle. One might say that “Congress” is actually a shorthand for all of the federal government, but that seems wrong.  No other Bill of Rights amendment is written that way – most are written in the passive voice, so that they apply equally to all branches.  For example, the Second Amendment: "the right of the people to keep and bear arms, shall not be infringed" – thus meaning, shall not be infringed by any part of the federal government.  So I agree with Professor Segall that the First Amendment’s text inescapably applies only to Congress and not to the other branches of the federal government.  But I think this has only limited implications that are mostly consistent with modern law.

(a)  As to the courts, this indeed means that federal judges are not limited by the First Amendment when they act under independent power (that is, other than pursuant to a law passed by Congress). But judges only exercise the judicial power, and the judicial power does not contain much independent power to suppress speech.  I think it likely that courts can impose restrictions (e.g., “gag orders”) to protect the judicial process in their courts as a historical aspect of the judicial power, but not much beyond this. And that would likely be true even if the First Amendment did apply to them – the historical practice would indicate an exception to the apparently categorical rule.  So I don’t think this makes a great deal of difference.

(2)  As to the federal executive branch, the same analysis would apply, but it is potentially more significant. Mostly, when the First Amendment is applied to the President, the President is acting under the authority of law. That law cannot authorize the President to abridge the freedom of speech, so if a President purporting to act under authority of law abridges speech that action is ultra vires and unconstitutional – not because the First Amendment applies to the President, but because the First Amendment applies to the authorizing law, which amounts to the same thing.

However, if the President is acting under independent authority, again I agree that textually the Amendment doesn’t apply.  Critically, though, the President’s authority to act independently in a lawmaking capacity is sharply constrained by the Constitution’s separation of powers.  By the direction of the vesting clauses, "all" legislative power of the federal government is vested in Congress; thus the President cannot exercise lawmaking power.  (See my thoughts here on applying this principle to foreign affairs.) I think this is why the First Amendment is drafted the way it is.  The framers understood that (with narrow exceptions) abridgements of the First Amendment rights would come from Congress, because only Congress has lawmaking authority.

There may be a few exceptions.  The President’s commander in chief power likely includes power to set rules for the military (at least until Congress acts), so the President can restrict speech in the military.  The President’s executive power likely includes power to set rules for executive branch personnel (at least until Congress acts), so the President would be less restricted there.  (This is one place that the textual analysis might depart somewhat from modern law, which partly restricts the President’s authority over speech of executive personnel.)

More generally, in First Amendment challenges to executive action, it should be asked whether the President is claiming authority under statutory law or directly from the Constitution.  The textual analysis would say the First Amendment only applies in the former case.  But it would also say that, in the latter case, the executive action is often doubtful on separation of powers/vesting clause grounds.

It’s true that this point is not made in the Court’s doctrine, and perhaps that would sometimes matter.  For example, Murthy v. Missouri, decided yesterday, involved a First Amendment challenge to executive action.  The Court rejected the challenge on standing grounds, but if it had reached the merits, the text of the First Amendment indicates that it should have asked (1) whether the President was acting pursuant to delegated power (in which case the First Amendment would apply) or if the President claimed to be acting under independent power (in which case there would be a question about the source of that power).  I’m not sure to what extent this might change the outcome on the merits.

(c)  Finally, some commentary on this point invokes the treaty power; on this analysis, can treaties restrict speech (by, for example, prohibiting criticism of foreign governments)? One might say no, because treaties require Senate consent, and the Senate, as part of Congress, cannot make laws restricting the freedom of speech.  But making treaties, in itself, does not require the action of “Congress” – only the Senate, which is not Congress.  So perhaps the First Amendment does not limit treaties.

That might be a sharp and worrisome departure from modern law.  But there is perhaps less to it than might appear.  The framers likely assumed that treaties proscribing particular individual conduct would be addressed to Congress for implementation.  That is, treaties would say – as modern treaties in fact typically do – something to the effect of: “The treaty parties agree to prohibit” a specified conduct.  Treaties phrased this way would call for Congress to enact a specific prohibition (they would be, in modern terms, “non-self-executing” – see my discussion here.) And of course, the First Amendment would restrict Congress in enacting such a prohibition.

In sum, the First Amendment’s specific application only to “Congress” raises interesting textual questions, but in the end I think they mostly resolve in favor of current outcomes.  Of the Court’s many departures from the text, this one is much less important than it at first appears.

Saul Cornell on Rahimi and the Second AmendmentMichael Ramsey

At Slate, Saul Cornell (Fordham - History): The John Roberts Balancing Act Is Back, at Least for Guns.  From the core of the argument:

Two interpretations of Bruen’s mode of analysis had emerged among federal courts. Some judges followed the maximalist version, a framework Thomas has now advanced in his Rahimi dissent. This approach relied almost exclusively on statutes, ignoring or misinterpreting the widespread use of common-law methods of protecting the peace and public safety. For these judges, answering the question of whether a law was constitutional involved compiling something akin to a spreadsheet of old laws and looking for something close to a historical twin for the modern law being litigated, an approach Bruen expressly disowned. The few laws that survived this artificial and ahistorical winnowing process were then read in a parsimonious fashion rendering nearly every type of modern gun regulation suspect. An alternative approach, more consistent with the method advocated by Roberts and Kavanaugh, also gained traction in the lower courts. This interpretation of Bruen was still highly solicitous of gun rights and hostile to modern legal tools that acknowledge that consequences matter. This reading of Bruen had the virtue of treating both sides of the rights-and-regulation equation in a consistent manner.

Now, with Rahimi, it’s clear that the Kavanaugh-Roberts school is markedly different from Thomas’ approach. Their method, not the dissent’s cramped vision, currently controls Second Amendment law. This correction is significant. Recent legal research has shown a shocking partisan pattern in the way lower courts have applied Bruen. Republican judges and virtually all Trump-appointed judges approach gun rights at a high level of generality but do not treat regulation in a similar fashion. Studies of the application of Heller in the lower courts, by contrast, found that the use of modern tools of constitutional analysis that take account of consequences was less prone to partisan bias, a fact that challenges the claims of the court’s originalists that their method is more objective. Turning Second Amendment law into a version of historical Where’s Waldo, rummaging around in old laws with no coherent historical method, is far more prone to manipulation of sources and unconscious forms of confirmation bias.

Josh Blackman on the Rahimi ConcurrencesMichael Ramsey

At Volokh Conspiracy, Josh Blackman: The Three Trump Appointees In Rahimi - Justices Gorsuch, Kavanaugh, and Barrett are fracturing over originalism. From the introduction:

I have spent some time thinking about how the three Trump appointees differ. In Rahimi, Justices Gorsuch, Kavanaugh, and Barrett each wrote concurring opinions. And they are not on the same page. I'm not even sure they're reading from the same book. Rahimi  provides another opportunity to consider how the troika approaches originalism.

From his assessment of Justice Gorsuch's opinion:

Justice Gorsuch tries to mediate some synergy between the three concurrences:

If changes are to be made to the Constitution's directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post, at 6–16 (KAVANAUGH, J., concurring) (offering examples). And when doing so, litigants and courts "must exercise care." See post, at 3, n. (BARRETT, J., concurring)

But I think that Justices Gorsuch, Kavanaugh, and Barrett are quite far apart.

Gorsuch concludes:

Among all the opinions issued in this case, its central messages should not be lost. The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen.

Far from it. The Court rewrites Bruen, which apparently had a two-year expiration date.

From the introduction to his assessment of Justice Kavanaugh's opinion:

Justice Kavanaugh wrote a 24-page concurrence that was about 24 pages too long. I give Kavanaugh credit for trying to lay out an intellectual foundation to support his approach to originalism, but the only person who will be persuaded is Justice Kavanaugh himself.

Ouch! (It doesn't get any more favorable as it goes along either.)

And on Justice Barrett:

The developing challenge with Justice Barrett is not whether she understands originalist methodology. She does, and articulates it well. Rather, the debate is over how much evidence of original meaning she demands before following original meaning. From Fulton to Brackeen  to Rahimi, she wants a perfectly-compelling case to persuade her. Otherwise, Justice Barrett's mind is made up. I'm not sure why she has adopted this high burden. But the upshot is that in any given case, so long as Barrett convinces herself that lawyers did not meet the burden, she will revert to some non-originalist form of judging. Justice Barrett would prefer to openly avoid originalism, rather than pretending to follow what she sees as shoddy originalism. She will let the perfect be the enemy of the good.

I'm substantially more positive on each of opinions, which I think are thoughtful, interesting and constructive.  I think it's a positive step for the Justices to be working out their methodologies in public, in a sense joining the conversation that's been going on among originalist scholars  And it's a positive step for originalism to have Justices taking it seriously as a methodology.  I agree with much that's in each of the opinions, though I have at least one substantial disagreement with each of them.  I'll see if I have time for some thoughts before this blog goes on a summer hiatus (which is going to be announced fairly soon).

New Book: A Life for Liberty by Randy BarnettMichael Ramsey

Available for pre-order and forthcoming very shortly, by Randy Barnett: A Life for Liberty: The Making of an American Originalist (Encounter Books, July 2, 2024).  Here is the book description from Amazon:

From prosecuting murderers in Chicago, to arguing before the Supreme Court, to authoring more than a dozen books, Georgetown University law professor Randy Barnett has played an integral role in the rise of originalism—the movement to identify, restore, and defend the original meaning of the Constitution. Thanks in part to his efforts, by 2018 a majority of sitting Supreme Court justices self-identified as “originalists.” 

After writing seminal books on libertarianism and contract law, Barnett pivoted to constitutional law. His mission to restore "the lost Constitution" took him from the schoolhouse to the courthouse, where he argued the medical marijuana case of Gonzeles v. Raich in the Supreme Court—a case now taught to every law student. Later, he devised and spearheaded the constitutional challenge to Obamacare. All this earned him major profiles in such publications as the  Washington Post, Wall Street Journal, and New York Times. Now he recounts his compelling journey from a working-class kid in Calumet City, Illinois to “Washington Power Breaker,” as the Congressional Quarterly Weekly called him.

The engaging story of his rise from obscurity to one of the most influential thinkers in America is an inspiring how-to guide for anyone seeking real-world advancement of justice and liberty for all.

Only $29.99 on pre-order.  For 656 pages!

(Via Instapundit.)

Kavanaugh’s Mistakes About Post Ratification HistoryMike Rappaport

There is a lot to talk about in the various Rahimi opinions.  The Court is clearly engaged in a serious discussion about how to do originalism.

Here I want to react to a couple of things that Justice Kavanaugh said in his concurring opinion – statements that relate to the legitimacy of considering post ratification history that is not close in time to the Framing and therefore not really informative about the original meaning. 

Kavanaugh made two basic claims about such post ratification history that I think are just wrong. 

First, Kavanaugh states that “when the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important” because “absent precedent, there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences.” 

Wrong, wrong, wrong.  In such situations, the question is a close one.  But that does not mean a judge has no where to go except his policy preferences.  One might argue that the judge’s obligation in those cases is to make his best judgment as to what the original meaning is, even though the issue is not clear.  The question might be one where the evidence for A is 51 and the evidence for B is 49.  As John McGinnis and I argue, the judge should select A, even if he prefers B on policy grounds. 

In fact, Kavanaugh makes the same mistake here that many have made in defending Chevron.  If the text is ambiguous, they argue the judge can only consider his policy views.  I would have thought Kavanaugh rejected that view.   

Second, Kavanaugh cites Justice Scalia for the proposition that “post-ratification history” from “far beyond the time of enactment” are “indicative of original meaning.”  (Kavanaugh here cites Mike Ramsey.)  While Scalia may have said this, it is simply not true.  Even Scalia nods.  It is not clear what the cut off date should be for evidence of original meaning, but for example history from after the Civil War concerning a provision enacted in 1789 does not shed light on its original meaning.  Perhaps one should follow that history based on considerations similar to stare decisis.  Perhaps not.  But one should not follow it because it reflects the original meaning.