Michael Dorf on Incorporation and Originalism
Michael Ramsey

At Dorf on Law, Michael Dorf has this interesting post, inspired by the Court's recent decision in New York State Rifle and Pistol Ass'n v. Bruen: 1791 or 1868? The Question Itself Reveals a Contradiction Between Originalism and Jot-for-Jot Incorporation.  From the introduction:

.. Today I want to explore a problem that both the majority opinion and Justice Barrett's Bruen concurrence acknowledged but did not address: how to choose between the 1791 and the 1868 understanding of a provision of the Bill of Rights, if they differ?

Let's start with some background. The Court's cases say that the Fourteenth Amendment incorporates most of the provisions of the Bill of Rights against the states. Ramos v. Louisiana (2020) definitively resolved what had been a (just barely) open question: whether, when the Fourteenth Amendment does incorporate a rights provision, it has the exact same content against the states as it does against the federal government--a position that was once called "jot-for-jot" incorporation? The Court in Ramos says yes, it does, rejecting the possibility that a "watered-down" version of a rights provision could apply to the states.

Is Ramos reconcilable with originalism? Suppose that in 1791, the First Amendment's protection for "freedom of speech [and] of the press" was not understood to forbid injunctions against defamatory statements but that by 1868 those terms were so understood. (This reading of the history is at least plausible.) The most straightforward application of originalism would then say that the Fourteenth Amendment provides greater protection for free speech when infringed by state or local government than the First Amendment provides for it when infringed by the federal government. The Bill of Rights, in this instance, would provide a "watered-down" version of what the Fourteenth Amendment provides. Conversely, where understandings of rights narrowed between 1791 and 1868, the opposite would be true.

The majority and concurrence in Bruen say they don't need to resolve the issue because the challenged New York law violates the Second Amendment as understood in 1791 and the Fourteenth Amendment's incorporation of the Second Amendment as understood in 1868. But presumably honest historians will find divergences in some future cases. How should such divergences be handled?

This is a crucial methodological question which originalists have often avoided (see my criticism here of Justice Scalia's failure to engage with the issue).  And as Professor Dorf says, there's no obvious answer: 

The most straightforward answer, in my view, would be to acknowledge that Ramos was wrong--not necessarily in its result but in its categorical endorsement of jot-for-jot incorporation. Originalism would seem to locate the meaning of the Bill of Rights in 1791 understandings and the meaning of the Fourteenth Amendment in 1868 understandings. Thus, as I argued in a 2019 Verdict column, the logic of originalism would seem to reject jot-for-jot incorporation. I obviously didn't persuade the Court's self-styled originalists, however, because they decided Ramos as they did the next year.

That leaves us with two possibilities. One view would standardize rights circa 1791. The best argument for this position would go like this: When the People adopted the Fourteenth Amendment in 1868, they incorporated by reference most of the provisions of the Bill of Rights, but what they incorporated was what those provisions originally meant--because that is all that they could mean--notwithstanding any contrary views the 1868 People may have mistakenly held about the meaning of the Bill of Rights.

That argument reconciles Ramos with a version of originalism, but it's a peculiar one. It says that the 1868 meaning of the Fourteenth Amendment is incorporation of the Bill of Rights, but recall that a few provisions of the Bill of Rights (most notably the grand jury and the civil jury) are not incorporated. Why not? Presumably because they don't satisfy the test for incorporation. That test, however, gives substantial weight to the understanding circa 1868. For example, Part III.B.1 of the Court's opinion in McDonald v. Chicago extends for nearly ten pages to show that the framers and ratifiers of the Fourteenth Amendment would have understood it to incorporate an individual right to keep and bear arms. But if the Court looks to the 1868 understanding to decide whether a particular right is incorporated or not--a process that involves examining the content of that right as understood in 1868--it's hard to see why the Court should then say, having found that a right is incorporated, that the 1868 understanding is irrelevant if it conflicts with the 1791 understanding.

Thus, jot-for-jot selective incorporation of the 1791 understanding of the incorporated rights is difficult to square with a coherent theory of originalism or the actual practice of the Court in incorporation cases. 

How about jot-for-jot selective incorporation but of the 1868 understanding? In a recent Indiana Law Journal essay that Justice Thomas cites in Bruen, Kurt Lash argues for that approach. That's easy enough to justify for the incorporated rights as limits on the states, but Lash says that the provisions of the Bill of Rights as limits on the federal government also should be interpreted in light of their 1868 rather than their 1791 understanding. Why? Because when the People ratified the Fourteenth Amendment they "re-spoke" the Bill of Rights and thereby invested it with the 1868 understandings.

Is that persuasive? Maybe, but it also creates some difficulties ...

I also have my doubts about jot-for-jot incorporation.  It seems that 1791 rights should be given a 1791 meaning and 1868 rights should be given an 1868 meaning. On the other hand, I'm not as sure as Professor Dorf that the 1791-meaning-only position is necessarily inconsistent with originalism, especially if one thinks the 14th Amendment incorporated all of the Bill of Rights rights.  Perhaps the 1868 enactment means the Bill of Rights, given its original meaning, whatever that was, is incorporated against the states.  If one thinks of the privileges or immunities clause as saying, you now have the same rights against the states as you previously did against the federal government (which seems a plausible reading), then it would (or could) follow that the 1868 rights are the 1791 rights.  I don't see a "contradiction."


The Constitution's Text Established Judicial Review (Again) [Updated]
Michael Ramsey

I'll turn to the Supreme Court's opinions from last month shortly, but first a pet peeve...

In Politico, this essay by Joshua Zeitz [via How Appealing] begins: 

Last December, during oral arguments in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.”


In a decision penned by Marshall, who now served as chief justice, the court [in Marbury] held that Madison had violated the law by withholding the commissions but also declined to order him to do so. In the same breath, the court asserted the right to strike down federal or state laws that it deemed unconstitutional. And so the concept of judicial review came into being.

Critics are correct on one point: The Constitution is silent on judicial review. It says only that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” ...

Wrong, wrong, wrong.  (As I've said a few times before.)  As law professors, one of the first lessons we give students in reading legal texts is: keep reading.  That is not all the Constitution says on the matter.  

Under Article III, Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...

Thus the Constitution defines the scope of the "judicial Power" to include cases arising under the Constitution -- which can only mean cases arguing that governmental action is unconstitutional.  (How else would a case arise under the Constitution?).

Article VI then confirms both the legal nature of the Constitution and its superiority as law to be applied by judges: 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

So judges are bound (in their decisions) by the Constitution, which is supreme law (that is, superior over other law in case of conflict).  Necessarily, then, applying the Constitution is part of the "judicial Power."  And the Constitution's superiority over federal statutes is made express by the phrase "Laws of the United States which shall be made in Pursuance thereof."  Only laws made pursuant to the Constitution -- that is, laws not contrary to the Constitution -- are themselves part of supreme law.  In cases of conflict, judges apply the Constitution (superior law) and not the unconstitutional statute (which is not superior law).  That's all Marbury claimed, and it follows directly from the Constitution's text. 

The idea that judicial review was invented by Marshall is a nonoriginalist canard, designed to make originalism look internally incoherent.  Originalists should object at every opportunity.

To its credit, the essay goes on to say:

But many of the framers assumed that some form of review was a given.

Judicial review as a concept was well-established in 1787. English courts had long issued rulings upholding or striking down laws — rulings that, in aggregate, and alongside centuries of commentary, formed the basis of England’s unwritten Constitution [Ed., I have some serious doubt about this point, but what follows is surely right]. It was certainly well-established in the United States, even on the eve of Marshall’s decision. Between the Constitution’s ratification and 1803, federal and state judges struck down at least 31 statutes on the grounds that they violated either the federal or state constitutions. These rulings were generally received with silent acquiescence.

We also know that many of the Constitution’s framers and loudest proponents anticipated the Supreme Court’s role in adjudicating the constitutionality of laws and actions. In Federalist Paper 78, Alexander Hamilton said so explicitly, writing: “If it is said that the legislative body is themselves the constitutional judges of their own … it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. … It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” ... [further historical discussion omitted]

The men who gathered in Philadelphia largely agreed that courts would serve as arbiters of what was and was not constitutional. So did delegates to state-level conventions that ratified the new Constitution. Delegates in seven such meetings discussed the concept of judicial review no fewer than 25 times. In addition, at least 74 federalist pamphlets, published in 12 of the 13 states, affirmed the court’s prerogative to strike down unconstitutional laws.

It’s clear from the record that the men who wrote the Constitution intended the Supreme Court, and the lower federal courts, to enjoy a constitutional veto over acts of Congress and of the states.

Agreed! (And very well summarized.)  But this confirms that the text (the whole text, not just Article III, Section 1) meant what it appears to mean.  There's no tension between the text and the framers' expectations.  The text provides for constitutional judicial review, as the framers understood.

Finally, the essay gets to its main point:

No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.

In theory, Congress could very easily pass legislation denying the Supreme Court jurisdiction over a new voting rights act, a law codifying the right to privacy (including abortion rights), and other popular measures. If they so chose, Congress and the president could go further, reducing the court to a shell of its former self, leaving it to adjudicate minor matters of little significance. ...

Perhaps, but the issue is more complicated, as for example is suggested by the excellent (though complex, and not written by me) discussion in the report of the Presidential Commission on the Supreme Court.

UPDATE: After the Dobbs oral arguments, Josh Blackman criticized Justice Sotomayor's comments on Marbury:

Justice Sotomayor was trying to make the point that many of the Court's decisions are not premised on the written Constitution. ... Sotomayor identifies Marbury as an example of such a case.

JUSTICE SOTOMAYOR: Counsel, there's so much that's not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that's what was intended. 

Huh? Absolutely nothing in Marbury said that the Supreme Court has the "last word on what the Constitution means." Nothing. That bold assertion of judicial supremacy would not be raised until Cooper v. Aaron. Indeed, one of the irrepressible myths from Cooper was that Chief Justice Marshall asserted this principle in 1805. Balderdash.

And to continue the argument, Cooper was not premised on the "structure of the Constitution." The Court merely asserted the power to bind everyone, everywhere, as a matter of ipse dixit. Cooper was consistent with the mode of judicial creativity that would mark the Warren Court.

Agreed.  Cooper is different from Marbury.

UPDATE #2:  Seth Barrett Tillman notes:

See 1 Steven G. Calabresi, The History and Growth of Judicial Review 25-26 (OUP 2021) ("[I]n the United States, in particular, the written Constitution contains no written judicial review clause .... The power of judicial review in the United States is deduced in The Federalist No. 78 or in Marbury v. Madison ... from a structural inference ....").

It's true that Marshall in Marbury relies first on structural inferences arising from a written constitution, and only secondarily on textual provisions.  But I think the textual provisions are a stronger basis.  It's quite possible, contra Marshall, to have a written constitution without judicial review.


Programming Note: Back to Work (Sort of)
Michael Ramsey

I'm back.  What'd I miss?

Regular posts to resume shortly.  But I'm on sabbatical for the upcoming academic year, so regular posts may be a little less regular than usual. 


Programming Note: Blog Holiday
Michael Ramsey

I'll be taking a brief break from blogging for personal reasons for the next couple of weeks.  (Hope I don't miss any big news from the Supreme Court.)  Thanks to everyone for reading, and see you in July.

Nikolas Bowie & Norah Rast: The Imaginary Immigration Clause
Michael Ramsey

Recently published, in the Michigan Law Review, Nikolas Bowie (Harvard Law School) & Norah Rast (Harvard Law School J.D. '21): The Imaginary Immigration Clause (120 Mich. L. Rev. 1419 (2022)).  Here is the abstract: 

For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws.

This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws.

In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.

I agree that the Supreme Court hasn't adequately explained where Congress' power over immigration comes from, and that the idea of extraconstitutional sovereign power over immigration is untenable.  My view of what follows from that conclusion is somewhat different from the authors'.

(Via Dan Ernst at Legal History Blog.)


Anita Krishnakumar on Textualism and the Supreme Court's Decision in George v. McDonough
Michael Ramsey

At SCOTUSblog, Anita Krishnakumar (Georgetown): In far cry from usual textualism, court rejects veteran’s attempt to reopen a benefits denial based on legal error.  From the introduction: 

[T]he Supreme Court [last week] ruled 6-3 that a VA benefits decision that was based on an agency regulation in effect at the time the decision was rendered does not constitute “clear and unmistakable error” even if the agency regulation is later deemed to conflict with the text of the relevant benefits statute...

Perhaps the most striking feature of [Justice] Barrett’s opinion for the court (and the two dissenting opinions from Justices Sonia Sotomayor and Neil Gorsuch) is how little it focuses on the text of the relevant statutes. Barrett’s opinion does nod at the text, observing that the modifiers “clear” and “unmistakable” indicate that only a narrow category of errors are covered by the statute. The opinion also cursorily notes that the “statutory structure” suggests a narrow construction of covered errors because the provision creates an exception to the norm of finality for veterans benefits decisions. 

But Barrett quickly sidelines these text-based observations as “general contours” and moves on to her principal argument, which is that “a robust regulatory backdrop fills in the details” of the statute’s meaning. Specifically, Barrett argues that the phrase “clear and unmistakable” error is a term of art — i.e., a term with a specialized legal meaning. In this case, Barrett claims that “clear and unmistakable error” is a phrase that “ha[s] a long regulatory history” and concludes that Congress deliberately codified that longstanding history and meaning when it employed the phrase in the statute at issue. Barrett goes on to explain that longstanding agency practice and precedent establish that the term “clear and unmistakable” error does not encompass subsequent “changes in law” or “changes in the interpretation of law” — and that the Federal Circuit ruling invalidating the agency regulation upon which George’s denial decision was based is a mere “change in the interpretation of the law.”  

The court’s reliance on agency practice — a pragmatic, atextual interpretive source — is surprising, as is its emphasis on Congress’ supposed expectation that that agency practice would be incorporated, or codified, into the relevant statute...

I have a different view.  Rather than thinking of the majority opinion as "atextual," I see it as adopting a legal meaning of the text over an ordinary meaning of the text.  I don't think that background agency practice is a "pragmatic, atextual interpretive source" in this case.  Rather, it is a way of understanding the meaning of the key words in the statute (a textualist inquiry), which (in Justice Barrett's view) adopted their meaning from prior agency practice.  Put another way, as both Justice Barrett and Professor Krishnakumar say, the relevant phrase is arguably a "term of art."  That's not an "atextual" analysis -- its just a way of understanding what the text means when the text adopts a specialized legal term.  (Of course, it's a separate question whether the text should be understood as adopting a specialized legal term or should be given ordinary nonlegal meaning, but that's a debate within textiualism.)


Rebecca Zietlow: The Transgressive Constitutionalism of Fugitives From Slavery
Michael Ramsey

Rebecca E. Zietlow (University of Toledo College of Law) has posted Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery (Notre Dame Law Review, Vol. 97, No. 4, 2022) (36 pages) on SSRN.  Here is the abstract:

In the years leading up to the Civil War, fugitives from slavery ("freedom seekers") put their lives on the line to improve their own status and that of their families in their quest for freedom. Freedom seekers were constitutional actors who made constitutional claims with their actions when they transgressed borders from slave states to free spaces, and across Civil War battle lines to volunteer for the Union army. By transgressing these borders, fugitives from slavery triggered constitutional controversy over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, and made rights claims for themselves with their actions. Their actions destabilized the structure of our country, leading to the Civil War. After the war, members of the Reconstruction Congress cited the sacrifices of freedom seekers as they debated measures to protect the rights that they claimed.

Freedom seekers engaged in civil disobedience, resisting law that they believed to be unjust and inhumane. In the North, free Black people and their white allies supported freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, Their actions were central to the antislavery struggle, and their sacrifices send a profound message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives from slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction eras. This article seeks to remedy that oversight.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!" and names it "Download of the Week".)


Judge David Stras on Unconstitutional Seizures
Michael Ramsey

Judge David Stras (8th Circuit) has a strong originalist concurrence on unconstitutional seizures in Davis v. Dawson (decided last month but just pointed out to me).  The majority holds:

Des Moines Police officers, lacking probable cause, took relatives of a stabbing victim to the station, holding them for over three hours despite their repeated requests to leave. Meanwhile, the victim died. The family sued. The district court denied qualified immunity, ruling for the family on their claims of illegal seizure and false arrest. The officers appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

The majority applies modern Supreme Court and lower court caselaw to find the rights clearly established for qualified immunity purposes.  From Judge Stras, concurring:

Rarely do rights come more clearly established. The Des Moines Police Department apparently thinks it is constitutional to seize, transport, and interrogate innocent witnesses based on “societal needs.” Appellants’ Br. 30. This type of “forcible and compulsory extortion of a [person’s] own testimony”—frequently a feature of writs of assistance and general warrants—was repudiated by the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 630 (1886); see also Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765). Like the court, I would reject the call to revive them, and I write separately to explain just how clearly established this right really is.


"Writs of assistance" were the historical equivalent of a “blank check.” Starting out as a way of enforcing English smuggling laws, they initially allowed so-called “customs men” to search homes for stolen or smuggled imports. See Carpenter, 138 S. Ct. at 2239 n.6 (Thomas, J., dissenting) ...; see also M.H. Smith, The Writs Of Assistance Case 17–19 (1978) (describing the origins of the writ of assistance). But they soon expanded to other situations and conferred breathtaking powers on the government officials who held them. Among their features were the authority to conduct indiscriminate searches of people and property, and in certain cases, conscript individuals to “‘aid[] and assist[]’ the Sheriff.” Smith, supra, at 95 n.1 (quoting Commissions Issued by the Province of Pennsylvania 36 ...; see also James Otis, Against Writs of Assistance (Feb. 24, 1761) (observing that “a person with this writ . . . may enter all houses, shops, etc., at will, and command all to assist him”). They were premised on the notion that the Crown’s interests stood above all others. See Smith, supra, at 426 (“[A]ll his Majesty’s good Subjects are required to be aiding and assisting in the due Execution of said Writ or Warrant of Assistance.” ...

It is unsurprising that opposition to them became one of the organizing principles of the Revolution. See 6 Encyclopaedia of the Laws of England, General Warrant, 63 (A. Renton ed., 1898) (“The use of the writ of assistance was one of the causes of the revolt of the American colonies.”). ...

Meanwhile, across the Atlantic, English courts issued a series of decisions that only sharpened colonial opposition. There were a number that had an impact, see, e.g., Wilkes v. Wood, 19 How. St. Tr. 1153 (C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763); Leach v. Money, 19 How. St. Tr. 1001 (K.B. 1765), but perhaps none more so than Lord Camden’s opinion in Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765).

The warrant in Entick “act[ed] against every man, who [was] so described in the warrant, [even] though he be  innocent.” 19 How. St. Tr. at 1064 (emphasis added). The officers, who broke into Entick’s home and seized his papers, defended their actions by arguing that this warrant, and others like them, were critical for “detecting offenders [and] discovering evidence.” Id. at 1030, 1073. This argument, echoed today by the Des Moines Police Department, was no more successful then. Lord Camden pointed out that general warrants arose “from a decree of the Star-Chamber,” giving them less-than-noble origins, and then “crept into the law by imperceptible practice.” Id. at 1067, 1069. No “authority in [the] book[s],” including the “written law,” supported them. Id. at 1066, 1072. Nor could “such a power be justified by the common law.” Id. at 1072. The warrant was, in Lord Camden’s words, “illegal and void,” and Entick had an action for trespass against the officers, who had invaded his right to be “secure [in his] property.” Id. at 1066, 1074. Entick was “welcomed and applauded by the lovers of liberty in the colonies.” Boyd, 116 U.S. at 626 (chronicling its support). Many regarded Lord Camden’s decision “as one of the permanent monuments of the British constitution.” Id. ...

I think this is an great way for originalist-oriented lower court judges to bring originalism into their cases.  Originalism isn't just about challenging nonoriginalist doctrines.  It should also be (as here) about confirming and celebrating the originalist foundations of longstanding doctrines we take for granted. And it reminds us that our rights come from the Constitution, not just from what the Court has said about it.


A Puzzle About the Word "Prohibiting" in the Free Exercise Clause
Will Foster

[Ed.: For this guest post we welcome back Will Foster, currently a student at Columbia University.]

In 1986, the Reagan Justice Department under Attorney General Ed Meese published a comprehensive report on the original meaning of the Constitution’s Free Exercise Clause. The document, entitled “Religious Liberty under the Free Exercise Clause,” carefully evaluates the text and history of the Free Exercise Clause. One of the report’s key conclusions -- that the Free Exercise Clause protects against generally applicable laws, not only laws targeted at religion -- is today gospel for many originalists and conservatives. But another important conclusion the Office of Legal Policy reached has been all but forgotten: To state a Free Exercise Clause claim, one must “identify state action ‘prohibiting’ -- forbidding or preventing -- the exercise of religion as opposed to merely discouraging it.”

The Supreme Court, needless to say, has soundly rejected that view. In Trinity Lutheran, Missouri did raise the argument that “merely declining to extend funds to Trinity Lutheran does not prohibit the Church from engaging in any religious conduct or otherwise exercising its religious rights.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017). But Chief Justice Roberts’ majority opinion quickly dispatched that argument by citing precedent. Ibid. Among those precedents was Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 450 (1988), which stated that “this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.” A case before the Supreme Court right now challenges Maine’s refusal to fund religious schools as part of a tuition assistance program; the Court is widely expected to invalidate that discrimination under the Free Exercise Clause.

This view could turn out to be correct, but it is not an easy question. Founding-era dictionaries suggest that the word “prohibit” had “essentially the same meaning in 1791” as it does today. Fulton v. Philadelphia, 141 S. Ct. 1868, 1896 (2021) (Alito, J., concurring in the judgment). As Justice Gorsuch wrote for the Court just this Wednesday in an unrelated statutory case, “to prohibit something means to ‘forbid,’ ‘prevent,’ or ‘effectively stop’ it, or ‘make [it] impossible.’” Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022) (slip op., at 9). Samuel Johnson’s 1755 dictionary likewise defined “to prohibit” as “[t]o forbid; to interdict by authority,” or “[t]o debar; to hinder.” Noah Webster’s 1828 dictionary defined the word in similar, though slightly more verbose, terms: “To forbid; to interdict by authority; applicable to persons or things, but implying authority or right,” or “[t]o hinder; to debar; to prevent; to preclude.” See also Fulton, 141 S. Ct. at 1896, n. 30 (citing additional dictionaries). Both Johnson and Webster included illustrative examples under the two definitions (more on that in a moment). Based largely on dictionary definitions, the Report to the Attorney General concluded that “‘prohibiting’ connotes a finality, certitude, or damning not present in ‘abridging,’ which connotes limitations falling short of the finality of prohibition or prevention.”

Seizing on the word “hinder” in the above definitions, Professor Michael McConnell argued in a 1991 Harvard Law Review article that “prohibit” in the First Amendment means the same thing as “infringe” or “abridge,” and that the Free Exercise Clause protects against laws that even “discourage” religious practice. (Meese apparently now agrees; in a footnote in a recent amicus brief, he cited McConnell and explicitly renounced the conclusion on this point from the 1986 report.) But McConnell’s attempt to respond to the Report to the Attorney General is not entirely persuasive. For the “hinder” definition of “prohibit,” both Johnson and Webster cited the following lines from Milton’s Paradise Lost: “Gates of burning adamant / Bar’d over us, prohibit all egress.” In context, it seems quite clear to me that Milton means not merely that the residents of hell were disadvantaged in some way or disincentivized from leaving -- Milton means they were completely prevented from leaving.

The two definitions Johnson and Webster provide thus line up perfectly with the 1986 report’s conclusion: “Prohibit” can mean either forbidding or preventing. As the report explained, “Forbidding in this context simply means to make an act unlawful, while preventing means to make the performance of an act impossible. For example, the government may prohibit attendance at college by either making it unlawful to attend school (forbidding) or by compelling would-be students to do something else in its place, for example, enter the armed forces (preventing). The first use is a direct prohibition on attending college. The second, though indirect, has the same effect.” Thus, to make sense of the two definitions of “prohibit,” there is no need to conclude that one of them encompasses mere disincentives.

To be sure, it is possible that educated members of the public at the time of the First Amendment’s ratification would have understood the phrase “prohibiting the free exercise [of religion]” as a sort of term of art, with meaning independent of the ordinary meaning of the word “prohibiting” standing alone (though I am aware of no evidence of this). And, as McConnell has noted, “in the context of the free exercise debate in 1789,” no one “expressed the view that infringements that are not final, certain, or ‘damning’ should be allowed.” But it is not entirely clear what to make of this fact. There can be multiple reasons why certain consequences were not envisioned or commented upon by the enactors of a legal provision. McConnell believes that, had the First Amendment been understood to allow penalties on the free exercise of religion short of total prohibition, members of Congress “would surely have spoken up” to complain. But I am not sure this follows. Indeed, there is some Founding-era evidence that can be turned against McConnell’s position: At the time, a number of states -- including New York, where the First Congress met -- categorically barred clergy from holding government offices, a clear penalty (denial of a benefit or right) on account of religious exercise. This practice was not universally supported by any means, and it is possible that some or all of those Founders who supported clergy disqualification at the state level would not have supported it when imposed by the federal government. But the conflicting evidence here illustrates the difficulty of making originalist arguments from silence. Ultimately, the text of the Free Exercise Clause is the law, and strong evidence must be required to conclude that the text is best read in a sense other than what dictionary definitions and linguistic common sense would suggest.

Professor McConnell does cite one additional, stronger piece of evidence: A quote by James Madison. In his Report on the Virginia Resolutions, Madison wrote the following:

For if Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only “they shall not abridge it,” and is not said, “they shall make no law respecting it,” the analogy of reasoning is conclusive that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it; because it is said only “they shall not prohibit it,” and is not said, “they shall make no law respecting, or no law abridging it.”

From this, McConnell concludes that “the narrow interpretation of ‘prohibiting’ should therefore be rejected,” and “laws that discourage or inhibit religious exercise by denying government benefits” can violate the Free Exercise Clause. But in my respectful view, this conclusion is dubious. First, as McConnell concedes, Madison’s view about the equivalence of the various verbs in the First Amendment was not universally held. More importantly, the Sedition Act against which Madison was inveighing involved criminal sanctions, not mere disincentives or penalties. So the fact that Madison considered criminal sanctions on publication of material to constitute both an abridgement and a prohibition of the freedom of the press does not prove that he would still have considered it a prohibition (or even an abridgement) had the law not imposed any jail time or fines, but rather denied a discretionary government benefit. It is perfectly plausible that what Madison meant was simply that legal prohibitions on certain aspects of religious exercise (say, church attendance) would still be unconstitutional even if the government left other aspects (say, private prayer) untouched.

Additionally, one possibility McConnell seems to overlook is that “abridge” and “prohibit” could be essentially synonymous as used in the First Amendment, but with both being narrower rather than broader in scope. In other words, it is possible for McConnell to be correct that “prohibit” is equivalent to “abridge” or “infringe” and still be wrong about the meaning of “prohibit,” because it is possible that all three terms have narrower meanings than the Supreme Court has generally given them. Justices Scalia and Thomas, for instance, have taken a view of “abridge” in the Free Speech Clause that is remarkably similar to the stringent definition of “prohibit” (more on that below). Under the alternative view this paragraph outlines, both the Free Speech Clause and the Free Exercise Clause would protect only against government action that outlaws free speech or free exercise or makes them impossible, not against minor financial penalties. 

To be sure, even if McConnell is wrong about the meaning of “prohibit,” another possibility is that “free,” rather than “prohibit,” is the key word that expands the Free Exercise Clause to include selective denials of funding. In his Locke dissent, Justice Scalia -- joined by Justice Thomas -- argued that “[t]he First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise—whether by tax or by forfeiture of an otherwise available benefit—religious practice is anything but free.” Locke v. Davey, 540 U.S. 712, 731 (2004) (Scalia, J., dissenting). Under this understanding, the word “free” is what protects against penalties that coerce. This is a plausible interpretation of the text, but it is not the only plausible interpretation. “Freedom of speech” also includes a version of the word “free,” yet Justices Scalia and Thomas have consistently denied that disincentivizing speech violates the Free Speech Clause (more on that below). In any event, the Report to the Attorney General appears to have anticipated Scalia’s argument about the word “free.” The report’s authors acknowledge that “one could argue … Ms. Sherbert and Mr. Thomas, relative to other workers, were penalized in the amount of their unemployment compensation and that that penalty is as real and substantial to them as the criminal sanctions were” in other free exercise cases. Nevertheless, “there is a difference between the government's compelling an action and its persuading (by encouraging or discouraging) completion of the same act, which may be readily seen in the remedies available in each case.”

Yet another possibility is that the incorporation of the Free Exercise Clause against the states effectively changed its meaning -- i.e., penalties on religious exercise are unconstitutional when imposed by the states, though not by the federal government. This “dual-track” approach to incorporation has fallen out of favor at the Supreme Court, though Justice Thomas has recently expressed some openness to it. But as Professor William Baude wrote in a thoughtful post, it is possible that dual-track incorporation is warranted because (1) “incorporation is an indirect consequence of the Fourteenth Amendment,” in that “the Amendment protects the Bill of Rights not because it was a direct cross-reference to the Bill of Rights but because it protects rights with a certain property” and/or (2) “[t]he public understanding of various constitutional rights was different in 1867/8 than it was in 1791.” 

Now, I am not sure this is right. As Baude concedes, and as Andrew Hyman has argued, “it’s also plausible that the Framers of the 14th Amendment incorrectly believed that their understanding of the Bill of Rights was the same as that at the Founding, and that their commitment to the same-ness principle is controlling even if it leads to 1791 controlling over 1867/8.” Still, the possibility of dual-track incorporation is worth exploring. One intriguing possibility is that the precise language of the Privileges or Immunities Clause -- “abridge” -- effectively replaces “prohibit.” Under this reading, the Free Exercise Clause as incorporated against the states would effectively read “No state shall abridge … the free exercise of religion.” To the extent that “abridge” is broader in coverage than “prohibit,” the free exercise right might be broader as applied to the states than the federal government. But no justice of the Supreme Court has ever suggested this reading, and it is not the only plausible way of reading the “incorporated” Free Exercise Clause. For example, one could read it as “No state shall abridge the right not to be prohibited from freely exercising religion.”

Regardless, one thing seems virtually certain: The Free Speech Clause -- given its use of “abridge” rather than “prohibit” -- must be at least as broad as the Free Exercise Clause in its application to “selective funding” and “unconstitutional conditions.” And the Supreme Court’s most originalist justices have frequently argued that the Free Speech Clause does not prohibit the government from selectively denying funding to speakers. In their view, the First Amendment’s prohibition on “abridg[ing] the freedom of speech” protects only “against the coercing of speech,” and not “against discriminating against or injuring opposing points of view.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U.S. 205, 222 (2013) (Scalia, J., joined by Thomas, J., dissenting). This is because “[n]ot every disadvantage is a coercion.” Id. at 223. Justice Thomas recently reiterated this view, arguing that Congress can decline to subsidize certain speech based on the viewpoint it expresses because such a program “does not compel anyone to say anything,” given that entities “are not compelled to participate in the … program.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 140 S. Ct. 2082, 2090 (2020) (Thomas, J., concurring). 

Likewise, in National Endowment for Arts v. Finley, 524 U.S. 569 (1998), Justice Scalia (joined by Thomas) wrote that “I regard the distinction between ‘abridging’ speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable.” Id. at 599 (Scalia, J., concurring in judgment). That is because “[t]o abridge is ‘to contract, to diminish; to deprive of,” but “[t]hose who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute” (citing T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796)). Id. at 598. As Scalia wrote in another case, “The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily ‘infringe’ a fundamental right is that—unlike direct restriction or prohibition—such a denial does not, as a general rule, have any significant coercive effect.” Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 237 (1987) (Scalia, J., dissenting). This view seems reasonable enough, but why wouldn’t it extend to Free Exercise Clause cases, where the key word is “prohibit” rather than “abridge” or “infringe”? As far as I can tell, neither Scalia nor Thomas ever provided an answer. If failing to fund speech is not a free speech violation, then failing to fund religious exercise cannot be a free exercise violation. Originalists and textualists cannot have it both ways. “Prohibit” probably is a narrower term than “abridge,” but even assuming it has the same coverage, it is certainly not any broader.

In the end, even if I am right about the Free Exercise Clause, it may well be that Trinity Lutheran and other related cases were correctly decided on originalist grounds anyway. That’s because the Fourteenth Amendment’s equality guarantee -- whether found in the Equal Protection or Privileges or Immunities Clause (or both) -- likely prohibits invidious discrimination against religion. Indeed, that alternate argument was made in Trinity Lutheran, though the Court declined to address it. (The same was true in Locke v. Davey and Espinoza v. Montana, where petitioners even cited desegregation cases.) In a case involving disqualification of clergy to public office, Justice White wrote that “[r]ather than relying on the Free Exercise Clause, as do the other Members of the Court, I would hold ch. 848, § 4, of 1976 Tenn. Pub. Acts unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.” McDaniel v. Paty, 435 U.S. 618, 643 (1978) (White, J., concurring in judgment). As Justice White explained, the Free Exercise Clause seemed like a poor fit because it is not clear “in what way McDaniel has been deterred in the observance of his religious beliefs” or “been required to disavow any of his religious beliefs.” Id. at 643-644. The Fourteenth Amendment, with its focus on equality, was more appropriate. 

Chris Green and David Upham have powerfully argued that “[a] great deal of evidence shows that the equal citizenship principle of the Fourteenth Amendment covers creedal as well as racial discrimination.” Green and Upham note that “Republicans took distinctions based on religion or belief to be clear instances of the sort of second-class citizenship against which the Privileges or Immunities Clause was aimed.” They also observe that the “Court’s religion-clause cases have long been shot through with notions of equal citizenship.” (Professor Green just filed another amicus brief making these points.)

As Professor Green wrote on this blog last year, “It is widely recognized that the Fourteenth Amendment contains some sort of provision--disagreement persists about which provision--that broadly and abstractly requires equality in civil rights among similarly-situated American citizens (and perhaps among non-citizens too).” The core inquiry -- whether under the Equal Protection Clause or under the Privileges or Immunities Clause (or perhaps under the Citizenship Clause for the federal government) -- is whether the government has treated “similarly situated” citizens/persons equally. Lawrence v. Texas, 539 U.S. 558, 579 (2003) (O’Connor, J., concurring in judgment). Importantly, the Fourteenth Amendment approach would not necessarily lead to narrower decisions in religious school cases. For example, it is entirely possible (though I express no opinion on the matter) that most or all Blaine Amendments are facially unconstitutional under the original meaning of the Fourteenth Amendment.

The Meese report with which this essay began similarly noted that protection against “purposeful discrimination against religion that burdens but does not forbid or prevent free exercise” could “in most cases be available under the Establishment Clause and/or the Equal Protection Clause (among other constitutional provisions).” The authors frankly acknowledged that they were “not entirely comfortable with the idea that the Free Exercise Clause would not disallow such action under our interpretation. Nevertheless, we believe the only principled approach is to follow the text of the Constitution as we are able to best comprehend its original meaning, despite any misgivings we may have about the results of that approach.” Just so.


Scott Gerber on Evan Haefeli on the Origins of Religious Toleration in America
Michael Ramsey

At Law & Liberty, Scott Gerber (Northern Ohio): The English Origins of American Toleration (reviewing Accidental Pluralism: America and the Religious Politics of English Expansion, 1497–1662 by Evan Haefeli (Univ. of Chicago Press 2021).  From the introduction: 

Haefeli’s previous book, New Netherland and the Dutch Origins of American Religious Liberty, likewise proffered a revisionist account of the origins of religious liberty in America. In his prior book, Haefeli insisted that the greatest contribution of the Dutch to American religious diversity was not to promote tolerance, but to keep the mid-Atlantic region out of English hands until the Restoration, giving pluralism a chance to take root in what became New York and New Jersey as well as parts of Connecticut, Pennsylvania, and Delaware.

In Accidental Pluralism Haefeli argues that the religious pluralism that came to characterize colonial America was not a result of the colonists’ embracing pluralism as an ideal or establishing it in some planned or deliberate fashion. Rather, Haefeli contends, the origins of American religious freedom—a “peculiar mix of pluralism, tolerance, and liberty”—can be traced to the religious and political history of England and its empire between the earliest exploratory voyages and the re-institution of the Church of England after the Stuart Restoration.

Haefeli attempts to prove his thesis via a chronological discourse on England’s political history. He divides his book into five parts—Tudor-Stuart Foundations, 1497–ca. 1607; Jacobean Balance, ca. 1607-1625; Caroline Transformation,1625-1638; Civil Wars, 1638-1649; and Commonwealth, 1649-1660—presented in fourteen chapters and a conclusion.

And in conclusion:

My objection to Haefeli’s neglect of the European and American origins of religious toleration in America is not meant to deny the significance of Haefeli’s accomplishment. He has written an excellent book, and other scholars likely will be grappling with it for years to come. That said, I did find off-putting Haefeli’s occasional chest-thumping about how his approach is “original” and “correct” (my words, not his). For example, he avers in the introduction to his book that “Scholarship on early America is hampered by the habit of thinking about religion in small pieces” and that “we lack a bigger account of how those pieces fit together.” And after claiming to have provided that “bigger account,” he proclaims in the conclusion that “Crafting this history has required taking a whole series of national and imperial narratives and weaving them together into a new narrative.”  

Put directly, Haefeli has written a fine book that fits comfortably within the historiographic fad of the moment—Atlantic History—but that does not mean that alternative approaches to colonial American history are not useful too. Personally, I agree with Richard B. Morris and George Lee Haskins—two pioneering scholars in the field of American colonial legal history—that each colony must be examined individually. Despite what many historians seem to think, the writing of history is an art, not a science, and the more colors on the palette the better.