Is Originalism the Law?: The Basis of Nonoriginalism

In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote:

To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues, one might conclude that even though the people in the society believe that eating lobsters is lawful, they are mistaken.

This is an important example, but it is not clear that it can be used to argue for originalism. The question is how similar this example is to the current situation involving nonoriginalist judging. Let’s analyze a couple of different situations.

1. A Mistake: In Sachs’s example, the judges make a mistake. As a result, pretty much everyone – those who believe in the principle of not eating creatures that feel pain and those who believe that lobsters do not feel pain – would acknowledge, once the mistake is corrected, that the lobsters should not be eaten.

If judges were making a mistake about their interpretations – if nonoriginalist judges thought their decisions were actually the original meaning but were mistaken about that – then this situation would be comparable to the lobster example. But, as I argue below, most nonoriginalist judges do not mistakenly believe that they are following originalism.

2. Open Contestation: Now consider the opposite extreme. Nonoriginalists come right out and acknowledge that they are not applying the original meaning. In this situation, it is clear that the rule of recognition does not require originalism. Instead, it allows both originalism and nonoriginalism since decisions are written openly from both perspectives.

3. Silence as to the Original Meaning: Not let’s move to the situation which may reflect the reality of American law. In this situation, most judges do not accept originalism, but they do not acknowledge that in public or in their opinions. This is neither exactly like the mistake (or lobster situation) in scenario 1 nor like the open contestation of scenario 2.

What is one to say about this situation? One take is that this is much more like the open contestation than the mistake scenario. The reason is that it all judges and most lawyers know that large numbers of judges do not believe in originalism. Thus, it is common knowledge that originalism is not accepted generally among judges and this suggests that originalism is not required by the rule of recognition.

Of course, one might disagree with this argument. The rule of recognition is what everyone agrees with – or at least what is not criticized as unlawful by the relevant officials. But decisions that claim not to follow the original meaning arguably do not fall within this category. One cannot say that people agree with such decisions, since there aren’t any, and we do not know that such decisions would not be criticized as unlawful.

While this argument has some merit, it does not establish that nonoriginalism is not the law. It merely establishes that decisions that openly claim not to follow the original meaning are not the law. It does not establish that decisions that simply (or silently) do not follow the original meaning are not the law.

Now one might respond that there is a norm against such silent actions, but that is hard to claim, because that is what has been going on for a long time. But even if that were the case, this would not stop nonoriginalism. First, nonoriginalist judges are probably not unwilling to say that they follow precedent despite a contrary original meaning. Second, even in cases where there are no precedents, nonoriginalist judges often have moves that allow them to ignore the original meaning. For example, the recent Recess Appointments decision in Noel Canning – where there were no Supreme Court precedents – illustrated two of these. Justice Breyer claimed that the original meaning was ambiguous by relying on a very capacious understanding of ambiguity. (More generally, nonoriginalist judges could often claim that the original meaning is not clear by adopting a strict standard for establishing the original meaning.) He also claimed that practice was important in determining the meaning of the Constitution.

Thus, there are significant techniques that nonoriginalists can use to decide cases according to nonoriginalism without expressly claiming that they are not following the original meaning.

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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Comments

  1. nobody.really says

    To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues, one might conclude that even though the people in the society believe that eating lobsters is lawful, they are mistaken.

    A digression: Do statutes that make legal conclusions contingent upon factual conclusions violate the legislative nondelegation principle?

    To some extent, this problem is intractable. The Second Amendment makes reference to “the right to bear arms.” There’s no nondelegation problem if we interpret this to refer to the list of arms that the drafters would have recognized. But if we interpret it to apply to a conceptual category of arms, then the law would appear to delegate to innovators the power to alter the law’s meaning (relative to anything the authors could have envisioned) by creating new objects that would fit into the conceptual category.

    Similarly, imagine a food purity law specifying that grain shall contain no arsenic. Does this law imply the technological limits of the era in which it was adopted? Or does the law effectively delegate to scientists the capacity to amend the law each time they discover an ever-more-exacting technique of measurement? The burden of excluding only the levels of arsenic that could be detected using 1920s technology may be substantially less than the burdens of excluding arsenic that could be detected using contemporary technology – even though the language of the law has not changed one iota. At the risk of provoking controversy, in this case it’s not clear that “no” means “no.”

  2. gabe says

    “Similarly, imagine a food purity law specifying that grain shall contain no arsenic. Does this law imply the technological limits of the era in which it was adopted?”
    If the law says no – it means no, doesn’t it. It may be harder to meet the standard but there is no material change in the law -only in the efforts / costs incurred by the food processor. Ultimately, this may require a new or amended law which takes into account the new measurements and the consequent impracticability of meeting the impacted earlier standard. But that is for the legislature to decide.

    A similar argument can be made for 2nd amendment – for example, does the right to bear arms mean the right to possess those classes of weapons commonly employed by a militia (National Guard, let’s say). (And I still want my M1 Abrams – I even have a parking spot for it).

  3. says

    Mike, lobster aside (and I just love New England lobster on a roll.) I see you’re still pushing your originalist and nonoriginalist theory. Why don’t you offer the reader your theory of the nonorginalist federal judge’s decision denying “the free excercise of religion” — using your theory — “there is a strong case for finding incorporation under the Privileges or Immunities Clause. I am therefore generally supportive of it). That is a question of original meaning.”
    ( It certainly is!)
    (You will find my theory in my reference — of you — to Steven Smith @ ul 6, 2014, Has “Originalism” Lost Its Way?)
    Respectfully, John
    (Facebook, author of The Tribute)

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