Comparing Traditionalism and Originalism II

In my last post, I explored the interpretive method of the majority opinion in Town of Greece v. Galloway, describing it as traditionalist though with interesting connections to certain strands of originalism. In this post, I’ll take a look at another traditionalist decision, NLRB v. Noel Canning. As with the post on Town of Greece, the object is simply to individuate the opinion as distinctively traditionalist, not to defend it.

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Comparing Traditionalism and Originalism

In my first post of this series on law and tradition, I said that though a judicial opinion might exhibit both originalist and traditionalist features, these are nevertheless distinct interpretive categories. In this post and the next, I will briefly explore the similarities and differences in two opinions decided by the Supreme Court in 2014—Town of Greece v. Galloway and NLRB v. Noel Canning—both of which are traditionalist but not (necessarily) originalist in method (though Town of Greece is complicated). My claim is not that these decisions are correct; only that each exhibits a distinctive interpretive approach that is intentional about maintaining coherence and continuity with very long-standing patterns of legal and cultural practices and that each determines constitutional meaning primarily on the basis of practices rather than principles.

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Gans on Reconstruction and Affirmative Action

At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment.  Gans makes two points:

First, he claims that in

the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.

Gans point here is problematic.  It is true that during these debates, people often argued about equality.  But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement.  It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government. 

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Tradition and the Constitutional Curator

It is uncommon today for people to argue for the retrieval of the beliefs and institutions of prior periods once they have been set aside. Even those few who do are not usually sanguine about the odds of retrieval. Particularly in intellectual circles, it takes a certain degree of rash temerity to make such arguments—and to risk the label of traditionalism or even reaction—in light of the overwhelming intellectual prejudices in favor of progress.

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Who Are the True Heirs of the Reconstruction Republicans?

In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . .  what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Graber’s argument, which has also been made in the literature, is not persuasive.  In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.

Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue. 

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The Judicial Necessity of Constitutional Choice

Close-up of the U.S. Constitution

Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology, economics, and social science research. In his latest book, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, he gives us an engaging study of jurisprudential comportment that classifies judges into the four groups of the subtitle.

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Lash on the Fourteenth Amendment

In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment. While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause.

One of the scholars who has written about the Amendment is Kurt Lash. Kurt has written several articles on the Amendment that culminated in the publication of a book. On this site, Kurt has written several posts defending his interpretation of the Amendment. Kurt defends a view that I used to hold, but no longer do: that the Privileges or Immunities Clause of the 14th Amendment protects against state infringement of the constitutionally enumerated rights of citizens of the United States. Here I thought I would explain some of the strengths and weaknesses of this view, and identify why I now adopt a different interpretation. (I should note that while I have read the articles on which Kurt’s book is based, I have not yet read the book.)

Adequate theories of the original meaning of the 14th Amendment must do several things. Two of the most important are to give effect to the text of the Privileges or Immunities Clause and to explain how the Amendment established an equality requirement that rendered the black codes, which discriminated against former slaves, unconstitutional. 

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Do Historians Understand Originalism?


I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree.

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The Merriest Amendment and Constitutional Theory

Yesterday was the 82nd anniversary of the Twenty First Amendment, repealing Prohibition, which had been imposed by the Eighteenth Amendment just fourteen years earlier. Repeal was a happy day, not only for those who drink alcohol but also for the many people saved from a culture of violence that the illegal business of evading Prohibition generated.

Beyond its good social consequences, the repeal of Prohibition has implications for constitutional theory. Many critics of our Constitution contend that the amendment process, which requires two thirds of Congress and three quarters of the states for enactment, is too strict. Moreover, critics claim that its excessive stringency has become even clearer as more states have joined the union. This argument is often used to support the claim that originalism needs to be discarded, since we need judges to update a Constitution whose amendment process is inadequate.

But Prohibition and its repeal provide a riposte to that claim. As Mike Rappaport and I argue in Originalism and the Good Constitution, the rapid consensus that the Eighteenth Amendment was a mistake supports our position that the amendment process is not too strict.  As stringent as Article V is, it still permitted enactment of a provision that was quickly admitted to be a costly failure, illustrating the dangers of a less stringent amendment process. And at the time there were forty-eight states in the union—just two fewer than we have today.

More generally, as we note in our book, reviewing the history of proposed constitutional amendments also casts doubt on the argument that Article V is too stringent.

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Delegation and Polarization

In a recent post, I wrote about how allowing the President to initiate war-making did not merely promote more wars, but also caused the Congress to become infantilized, not having an incentive to take responsibility for decisions about war.  This problem results from not following the Constitution’s original meaning in the separation of powers area.

A distinct, but similar problem occurs in the area of Congress’s delegation of legislative authority to the executive branch – where once again departures from the original meaning concerning the separation of powers have problematic consequences.  Here Congress actually takes the action of delegating legislative authority to the executive, in large part because this allows Congress to avoid political responsibility for the regulatory decisions that the agencies take.  These delegations, however, violate the Constitution’s requirement that the Congress make the basic policy decisions. 

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