Justice Scalia, Ordinary Meanings, and Legal Meanings

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.

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Justice Sutherland’s Uncertain Trumpet

I still remember the thrill of reading Justice George Sutherland’s dissent in Home Building Loan Association v. Blaisdell.   In that case the majority of the Court allowed Minnesota to extend the time that homeowners could protect their mortgages from foreclosure even against the  terms of their contract. The decision flew in the face of the text of the Contract Clause, which provides that “No State shall impair the obligation of contracts. “ The Court’s reasoning was essentially that the emergency of the Depression justified the abrogation. Justice Sutherland wrote a devastating dissent, showing not only did the constitutional text prohibit Minnesota’s action but that the Framers foresaw the need to protect creditors precisely in times of emergency. In a course where almost all my fellow students celebrated the Warren Court, Justice Sutherland was my hero.

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Originalism and Current Practices

With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.

Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).

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An Originalist Future

John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation.  See here and here.   It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.

In the essay, we write:

Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics.  It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented.  It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles.  Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.

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A Focus Group on Originalism

These are the best of times and the worst of times for originalism. On the positive side, originalism has never been so discussed in the legal academy and, in the modern era, never have originalist arguments been taken so seriously on the Supreme Court. On the negative side, originalism has never been so fragmented with so many competing justifications and such fundamental differences in the methods for ascertaining the meaning of particular provisions of the Constitution.  And, as Steve Smith, has written in these pages, some originalists believe that the judiciary has such a large role to play in choosing how to make operational constitutional provisions deemed radically indeterminate that originalism seems no longer to create any restraints on the judiciary—one of its original, and, in Steve’s view, salutary functions.

Some of the current discontents of originalism may be an inevitable consequence of its success.  Academics do not succeed by parroting the old theories, but by minting new ones: the multiplication of justifications and methodologies for originalism is the inevitable result. But this academic economy of theorizing does not mean that originalism has not greatly been greatly enriched from being pushed and pulled by ambitious professors of varying ideologies.  The most salient questions about both the persuasiveness of originalism and its practice are clearer than they were in the days when it functioned as a theory of judicial restraint. And despite the differences among originalists,  originalists of various views are far less likely to talk past one another than were constitutional theorists of the past who began from utterly  incompatible premises.

Over the weekend, I met with group of mostly young  academics to talk about some of the internal debates within originalism.  What I heard would have cheered Steve Smith.

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Originalism and Positivism: The Problem of Interpretive Contestation

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again.

I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the issue, including natural law theory, positivism, and Dworkin’s interpretive theory.

At the end of the article, his discussion of positivism addresses what in essence is my solution to the problem.  In my view, certain forms of originalism and nonoriginalism are now accepted as law and therefore either can be employed.  The reason is that (1) there are a significant number of people or officials who accept these interpretive methods, (2) decisions reached according to them are disagreed with but not treated as illegal, and therefore (3) the rule of recognition appears to accept both interpretive approaches.

Matt has two objections to this solution.  First, he argues that this solution means that a large number of legal cases involve indeterminacy and therefore neither the majorities in those cases nor the dissenters “were determinately legally correct.”

The question is whether this is a bug or a feature.  I share the concern that such indeterminacy is undesirable as a normative matter, but as a descriptive matter it accurately captures our constitutional practice.  It is generally recognized that hard cases go to the Supreme Court, where the court will split as to the correct resolution.  It is accepted that the Supreme Court gets to decides these cases (so long as it uses acceptable methods).  We may not like it, but that is how our system functions.  If a description of our legal system did not acknowledge this legal indeterminacy, it would be problematic.

Matt’s second objection to the solution that both originalism and nonoriginalism are allowed is that it would suggest that judges and scholars who debate interpretive methods are confused about the law.  They are “confused” because they treat their solution as the legally correct one and other side’s solution as legally incorrect, even though “no method is determinately correct.”

I don’t buy this objection either.  There is nothing problematic in different judges each believing that their view is the better view – the one more likely to be correct.  When they say it is correct, they don’t deny that others believe otherwise.  Nor are they saying that it follows clearly from accepted premises.  Instead, they believe they are correct but recognize that others have a different view (and that different view cannot be ruled out in the same way that deciding cases based on astrology would be).  It is similar to the disagreement about a difficult case involving arguments based on text, structure, history, purpose, tradition and normative desirability.  Just as the justices disagree about the resolution of the case based on these various criteria, so to do the justices disagree about the appropriate interpretive approaches based on multiple criteria.

Finally, it is true that an individual case produces a precedent and therefore some stable resolution, whereas interpretive disagreements continue.  But that is the result of the fact that precedent is not applied to interpretive matters.  The Supreme Court decides case 1 based on originalism and then case 2 based on nonoriginalism.  But no one argues that it failed to follow precedent.  So the problem of interpretive disagreement continues.  But that does not mean that the Court’s disagreement about interpretive approaches is any less legal than its disagreements about particular cases.

Is Griswold v. Connecticut Consistent with the Original Meaning?

Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it). In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum.

But is Griswold in accord with the original meaning? I don’t believe any of the justifications offered in Griswold – substantive due process, the 9th Amendment, emanations from penumbras – work from an originalist perspective. But I do believe that another basis may do the trick.

These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms). Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time. Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect. It may be that those rights should have been protected over a period of time, not just for a particular instant. I will try to explain the basis for this view in a future post.

Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States. According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”

If Justice Harlan is right, then this would support a right to use contraceptives. Exactly the parameters of that right – whether it extended to unmarried couples, to the distribution of contraceptives, and other aspects – would depend on the number of states that treated these aspects as rights and the necessary number needed to establish it as a prevalent right.

I should note that I have changed my mind about this issue. Based on the feeble justifications given for the right in Griswold and subsequent cases, I have for a long time believed that Griswold did not accord with the original meaning. But now I am inclined (although am not certain) that it is justified under the original meaning.

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.

Has “Originalism” Lost Its Way?

We all know the basic story. In the 1960s and 70s, the Supreme Court rendered decisions and announced doctrines that seemed to have only the remotest connection, if any, to the actual Constitution that the enactors had thought they were adopting. Roe v. Wade was perhaps the most egregious example. These decisions and doctrines seemed in severe tension with American commitments to democratic decision-making and rule of law. In the academy, one response to this perceived tension was a massive project, still on-going, to rationalize the Court’s doings. A different response was the emergence of a movement usually called “originalism.”

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The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions

In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.

I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.

A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.

But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.

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