Final Words on Tim Sandefur’s Substantive Due Process Paper

Tim Sandefur has responded to my last post on his paper.   Since these exchanges can only go on so long, I will keep my reply very brief.

Tim draws a distinction between the expected applications of a provision and the principles that the language of a provision appears to incorporate (something like an original public meaning approach).  He believes the former is not binding, but the latter is.  In this, Tim is following a common methodology of originalists these days.

Tim does not seem to sure whether he is an originalist.  He says that “the great pitfall of originalism is to get into a census of the subjective beliefs of the authors of the Constitution.”  He then asks whether originalists believe that “the authors of a legal text can actually be mistaken as to its meaning?”

But as my discussion above suggests, many originalists, including me, do not believe that the expected applications of a provision are binding.  And therefore originalists do agree that the authors of a law can be mistaken.

But Tim does not seem to recognize that by adopting an original public meaning approach, one assumes a burden.  If one is going to argue that the meaning of the text is what a reasonable interpreter would have regarded as the meaning (and therefore that the framers could have been mistaken about the applications), then one must provide strong evidence of its meaning.  Otherwise, there are no constraints on what the text means.  It is not enough to show, as Tim possibly does, that the interpretation he offers is a plausible meaning of the Due Process Clause.   One must show it is the best interpretation in the sense that it is the one that a reasonable interpreter would have adopted.  And I don’t believe that Tim successfully shows this.

Tim says that he is not a student of originalism.  And while I don’t believe that everyone needs to be an expert on originalist methodology, being familiar with the debate can help in constructing arguments.

In conclusion, while I have been critical of Tim’s position, I do want to commend him for a quite interesting paper – one that people would benefit from reading.  Unfortunately, it is disagreements on which we tend to focus.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. says

    this is state law, it simply is state law. The Chief Justice tbtrituaes this “practice” to the “understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns.”But federalism has to do not just with deference to the judicial institutions of the state; there are other institutions as well. Sometimes, to defer to the state court is to deny deference to another component of state government; principles of federalism may, for example, demand that the state court be intruded upon out of deference to the state legislature. Indeed, that was the case in Michigan v. Long. There, the state court, by muddling its interpretation of state and federal law, had created a dysfunctional sort of insulation for itself: the United States Supreme Court seemed not able to review it, yet the state democratic processes could not clearly see that they could undo the results of the court’s decision. Long thus found deference to the state court unwarranted.The Chief Justice acknowledged that ordinarily issues of state separation of powers can be resolved through state law. With respect to the appointment of presidential electors, however, he noted that the Constitution gives a particular role to one particular component of the state, the state legislature. Thus, Article II federalized an aspect of state separation of powers law, making it a matter open to United States Supreme Court review. Here, the Florida Supreme Court had made an assertion about what the state legislature intended, yet it might have been quite wrong. Ordinarily, a state court’s being wrong about the meaning of a statute has no remedy (other than amendment of the statute by the legislature, which would come too late to affect the case). The state court’s wrong answer binds as tightly as a right answer: the court is “infallible … because [it] is final.” But Article II, by interposing a federal question, makes the state court no longer the final court. Article II does not, under the Chief Justice’s theory, completely open up the state court opinion to review; but the United States Supreme Court can look at whether the state court is too far out of line. If the state court has made a “significant departure from the legislative scheme,” its decision is not the work of the state legislature but the work of the state court, and the legislature has then been deprived of the role Article II explicitly assigned to it; the state court has usurped that role, in violation of Article II.The Chief Justice accordingly analyzed the Florida Supreme Court interpretation of state law in this effort to determine whether the state court had gone so far afield as to violate Article II. The Chief Justice noted first that the Florida Supreme Court “acknowledged” that the state legislature intended to take advantage of the federal statutory safe harbor. Interestingly, he trusted the lawsaying competence of the state supreme court that far, but then did not go on to trust that the state court knew the state legislature’s intent when it came up with some of its other ideas about what the legislature meant. The Chief Justice then used the state court’s opinion that the legislature meant to moor in the safe harbor as a basis for rejecting the state court’s interpretations that might frustrate that one goal. Other goals found by the state court in the state statutes – notably the importance of counting ballots that reveal a “clear indication of the intent of the voter” – did not qualify as bona fide interpretations of state law. The Chief Justice examined the state statutory provisions and concluded that the state court had gone too far and has “wholly changed” their meaning.This “independent, if still deferential, analysis of state law,” appropriate here where there is such a high national interest in the presidential election and a specific federal constitutional provision affecting state separation of powers, had precedent in United States Supreme Court case law, the Chief Justice noted. He discussed two cases from the Warren Court’s civil rights oeuvre, NAACP v. Alabama ex rel. Patterson and Bouie v. City of Columbia, which found ways to stop state courts from using state law to thwart United States Supreme Court review. In Patterson, the Alabama state court had found the NAACP in contempt for failing to comply with a discovery order to produce the names of its members. The NAACP, which had asserted the federal constitutional right to freedom of association as its basis for refusing to comply with the order, sought review in the Alabama Supreme Court through a writ of certiorari. The Alabama Supreme Court relied on a procedural ground to bar its review: mandamus, not certiorari, was the proper writ to use to seek review of the judgment. When the NAACP then sought review in the United States Supreme Court, Alabama argued that the procedural ground provided independent support for the outcome in state court, thus barring United States Supreme Court review under the independent and adequate state ground doctrine. The United States Supreme Court, using its authoritative control over the scope of the independent and adequate state ground doctrine, shaped that doctrine with an eye toward preventing the state court from trumping up a state law ground to “thwart” Supreme Court review. Under the doctrine, the Court would thus not view as adequate a state law ground that was “without any fair or substantial support.” With the doctrine thus interpreted, it became the proper work of the United States Supreme Court to analyze the quality of the state court’s state law interpretation. Parsing the state supreme court’s reasons for requiring a writ of mandamus, the Court analyzed many earlier state law cases. Even though it could perceive a “consistent pattern … in retrospect,” it declared that pattern too obscure to expect the petitioner to have perceived it and too insubstantial to deprive the Supreme Court of its power. The advantage of going first and the authority over state law would not be allowed to provide endless control over what the United States Supreme Court saw as its important role with respect to constitutional rights. The Court did not write a word about the role it perceived for itself in protecting the NAACP from the southern courts, but it is easy enough for readers to infer that the Court’s refusal to take a position of supine deference to state courts was strengthened by its perception of the realities of the world beyond the immediate text of the opinions it reviewed.In Bouie, the state court had made a strained interpretation of a state criminal trespass statute: it read a state statute that banned “entry upon the lands of another … after notice from the owner or tenant prohibiting such entry …” to cover a situation where persons invited to enter had failed to leave when requested. This contorted interpretation was used to convict black civil rights proponents who had engaged in a sit-in at a whites-only lunch counter. The United States Supreme Court, desirous of overturning the result but nevertheless respectful in general of the rights of private property owners against trespass, found a way to achieve its end: the interpretation of the state statute was so strained it deprived the petitioners of the fair warning required by constitutional due process. The Court relied on “the standards of state decisional consistency” used to review the state court decision on the state law ground in NAACP v. Alabama. Accordingly, the United States Supreme Court, looking deeply into state law precedent, denounced the state court’s state law interpretation as “so clearly at variance with the statutory language” and lacking “the slightest support in prior South Carolina decisions.” Again, the case arose in a context of state courts that had earned the suspicion of the United States Supreme Court, and the Court found a way to use federal law to prevent the state court from using its authority over state law interpretation to immunize itself from review.The Chief Justice saw the Bush case as “precisely parallel.” The state court’s strained, result-oriented interpretation of the state statutory law was so “impermissibly distorted … beyond what a fair reading required” that it violated Article II. Like the United States Supreme Court in Bouie, the Chief Justice did not purport to substitute his interpretation of state law for the state court’s interpretation of state law; rather, he found that the high degree of distortion in the interpretation made for a violation of federal law. Those who say there was no “deference” to the state court in the concurring opinion fail to acknowledge this point. The deference is there, but it is not endless; it is not “blind deference.” It ends where the state court’s interpretation is too distorted. Thus, the Chief Justice analyzed the various relevant provisions of the state statutory scheme in an effort to discern not the actual meaning, but only to establish that the state court’s interpretation is far enough off the mark to overcome the usual acceptance of the state court resolution of the case, to rebut the presumption that the state has acted in good faith in its role as final expositor of state law. When a question of state law is plugged into a federal law issue, the United States Supreme Court has the power to reject a sham interpretation. It has the responsibility, one might say, as it makes this connection between state and federal law, to ensure that the “plug” is not defective.It is important to acknowledge that this is what the opinion says, but that naturally does not entirely shield the Chief Justice from criticism. Did the Chief Justice himself act a bit like the Alabama court discovering the wrong writ problem or the South Carolina court discovering a strange meaning for the trespass statute? Did he strain Article II to reach his preferred outcome? As the Chief Justice pointed to the state court’s distortion of state law and used that to detect a federal question in the tangle of state law out of which the state court may have manufactured an illicit power, he exposed his own work to the criticism that he distorted the law to manufacture an illicit power.Quite aside from how one might resolve the questions about whether any of the judges used sham interpretation to seize illicit power, it is apparent that in conflicts of judicial authority, one can easily see the advantage to going first and the advantage to going last. The state court in going first can use the interpretation of state law to shield itself from the review of the United States Supreme Court, and that advantage in going first frequently works. The United States Supreme Court in going last, however, gets to have the final say in shaping the doctrine that determines the effectiveness of state law insulation from Supreme Court review, and it can use that position of going last to produce an opinion that, however strained, cannot be reversed.Justices Souter and Breyer, who dissented from the position taken in the concurring opinion, did not disagree with the proposition that it is possible for the state court to distort the law so far that it should be viewed as having “displaced” the decisions of the state legislature. The question was whether the state court’s work deserved to be considered actual statutory interpretation or some new, judicial creation. They dissented because, to them, the state court’s opinion was not so unreasonable as to lose its quality of being statutory interpretation. The opinion lay “within the bounds of reasonable interpretation.” There was thus no “displacement” of the legislature’s choice and, consequently, no Article II violation. Justice Souter acknowledged that other interpretations were possible and even better, but the point was only whether the Florida Supreme Court had gone too far. Similarly, Justice Breyer parsed the Chief Justice’s analysis of the Florida court’s purported statutory interpretation and asked: “Where is the ‘impermissible’ distortion?”Justices Souter and Breyer disagreed with the concurring opinion over the degree of distortion in the state court’s interpretation. They did not say whether it was unreasonable for the Chief Justice to find that the state court’s interpretation was distorted to the point of unreason, but they did not need to do so in order to reach their decision: they only needed to decide that the state court decision did not go too far afield in its interpretation of state law.

  2. says

    ? Can we have some citation plaese? In any event thanks for a superb discussion but no! Current is absolutely correct! The essence of the Bill of Rights and an independent judiciary is to protect against majority tyranny: there are some things you just don’t get to vote on. Justice Robert H. Jackson said it the best, The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Personally, I think it’s a bit of a disgrace that LGBT activists take the path of public relations and propaganda and have done so little to educate people. This legal dynamic is easy. This is not rocket science. Decades into this debate and I am still appalled how little our community understands the basic legal principals. They parrot boilerplate bumper-sticker platitudes ( separate is not equal’) but can not argue their legal way out of a paper bag. A parrot does not understand but just mimics. Activists have really failed in this regard and MISERABLY.The very essence of the Prop 8 IS, Sorry . but you do not get to vote on it! The court is supposed to protect minorities from majority bigotry. Just because the tide of public opinion is shifting in our favor does not mean it’s a good idea for the court to lend an ear to the mob.

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