Originalism Is Being Tried Today

Richard Primus has graciously clarified his claim about originalism. It is not that many originalists believe it has never been tried in simple sense. Instead, “in the context of my initial post, ‘never-been-tried’ is a shorthand for something like ‘not yet conducted with sufficient persistence and proficiency so as to let its record of conduct stand as a fair test of what the theory can deliver if carried into practice properly.’ ”

I don’t entirely agree with this narrower claim and I don’t think most other originalists would either, but it is a more interesting question. There are two parts to my demurral. Richard focuses on testing the question of whether originalism constrains decision makers and creating stability. Constraint and stability are not for me the chief advantages of originalism. Nor are they for such varied theorists as Randy Barnett, Keith Whittington, or Jack Balkin. And I am not sure the advantages that these theorists emphasize are reducible to an empirical test through case law. Mike Rappaport and I, for instance, have suggested that the original meaning of the Constitution is likely beneficent by other kinds of arguments. In short, there other justifications for originalism and other ways of making these justifications plausible than empirical review of cases . Originalism can be evaluated in other ways.

A more direct disagreement is that I think there has been enough practice of originalists to suggest, although not prove, that originalism does lead to substantial, albeit not perfect, constraint. Let me set aside the more distant past which was the subject of a prior post. In recent times Antonin Scalia and Clarence Thomas were the most consistent adherents of originalism and not coincidentally they agreed in about ninety percent of cases.

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Gorsuch’s Opposition to Chevron Speaks Well of Trump and Is a Dilemma for Democrats

Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.

And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.

A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.

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Why Originalism?

Editing First Amendment Pencil US Constitution

In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law.”

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Gorsuch Nomination: Potentially the Best News for Originalism since 1987

With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.”   The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency:  He makes appointments (except in the trade area) that  on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.

First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential  with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory.

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Scalia’s Successor Needs His Virtues

In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues.  First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it.  The highest honors from our legal and academic establishment all go to justices who begin or  drift left. Justice Scalia, of course, was impervious to all such temptations.

But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.

And it was clear from the time  of his appointment that on the Court Scalia would be a member of only one party—the party of law.  In the academy, he showed his independence by dissenting on issues of central importance to his colleagues, like affirmative action.  At the Office of Legal Counsel in the Ford Admnistration, however, he even made allies unhappy by keeping the executive branch within the metes and bounds of the law.

Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written.

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Scalia Failed to Create a Rule of Law for Precedent

My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence.  I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.

In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the  original meaning of the Constitution was one in which he argued for following precedent:  “I am an originalist, not a nut.”  Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule.  It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.

And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule.  As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.

Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn.

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Antonin Scalia, Teaching about the Law

Antonin Scalia at the University Of Chicago Law School. (Credit University of Chicago)

There is not very much written by Justice Antonin Scalia that has gone largely unnoticed. But thanks to Adam White (and this fine article of his), I recently read this obscure 1987 essay by the late Justice: “Teaching About the Law” in the Christian Legal Society Quarterly. As we are just over a month away from the beginning of the law school year, it is a propitious moment to share its ideas.

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Trump, Clinton, and the Supreme Court

There are many reasons for classical liberals to oppose Donald Trump in the general election, but Supreme Court appointments are not now one of them. We can hardly be confident that his appointments will make America great, but we can be pretty confident that Hillary Clinton’s will end the current project of making the Supreme Court a court of law rather than a dynamo of Progressive politics.

After Donald Trump’s announcement of eleven judges whom he would consider appointing to the Scalia vacancy, many libertarian and conservatives commentators still doubted that Supreme Court appointments were a good reason to support Trump in the general election. They conceded that that those on his list were generally excellent candidates, but suggested that Trump could not be trusted to appoint people like them.

And they certainly have a point: on many issues Trump points in no direction more consistently than a weathervane. Moreover, he has supported a variety of legal causes, like property condemnation on behalf of private development, that would not likely fare well with the kind of justices he has promised to appoint.

Nevertheless, I believe there is a substantial probability, even a likelihood that Trump would follow through on his judicial promises.

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Scalia with Reagan: An Iconic, but Fading, Photo

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Many obituaries of Antonin Scalia were accompanied by a picture of the justice and Ronald Reagan standing together on the day of his nomination. And that photograph perfectly captures Scalia’s importance to the American polity. Scalia changed our jurisprudence as much as Reagan changed our politics.

In an essay at City Journal I explore some of the deep connections between these two iconic figures of the conservative movement:

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Partisanship, Nonpartisanship, and Nino

American Election

The Republicans are already backing off a bit or more from their hastily conceived policy of obstruction. There are loads of precedents for the obstruction, engaged in by both parties. Democratic whining about its deployment against President Obama’s nominee is as cheeky as it is hypocritical. Still, the higher road—the electorally more effective road, too—is perfect respect for constitutional forms.

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