Of Originalism and the Emperor's New Clothes
On October 25, I am travelling to an originalism conference at the University of Florida sponsored by the Federalist Society and attended by judges of the Florida federal district courts, the entire Florida supreme court, and several Eleventh Circuit judges, including keynote speaker Judge Bill Pryor, whom I have severely criticized in writing and in public. I am on a panel devoted to originalism on the ground.
As the Supreme Court heads towards possible political showdowns in November over the future of the American presidency and maybe America itself, it is important to focus on the amount of harm that judicial lip service to originalism plays in the Roberts Court’s caselaw. Below is a list of points that I intend to flesh out at the conference to demonstrate how originalism is nothing less and nothing more than a cover for the conservative justices’ modern value choices and current political ideologies. Originalism is the Emperor's New Clothes of constitutional interpretation theories, and the justices are walking around with nothing but their modern sensibilities, values, and politics as the determiners of their personal legal preferences.
I have expressed ideas similar to the ones below in other pieces recently, but it cannot be emphasized and repeated enough that we live in a country where Republican Justices are in full control of an institution that promotes the values of the Republican Party and conservatives/economic-libertarians on the most important issues of our day. Originalism is currently being used by justices, academics, and pundits as the tool to hide partisan, ideological conservative judicial policy-making indistinguishable in method from the overly aggressive decisions of the Warren Court (albeit with a disturbing arc towards injustice instead of justice).
Here are a few of the far too many major examples that prove this point.
1. All the originalists on the Supreme Court over the last few decades have argued that the use of racial criteria by colleges and universities violates the equal protection clause of the 14th Amendment, which they allege stands for a deep and permanent principle of color-blindness. But that phrase is not in the Constitution, color-blindness is not part of our history and tradition, and it is a controversial policy position that America has never lived by.
The idea that the 14th Amendment stands for a color-blindness rule prohibiting good faith uses of race by government actors to ameliorate the lasting effects of slavery, Black Codes, segregation, and red-lining is a living constitutionalism value choice, which is why none of the originalist justices seriously examined historical sources in SFFA v. Harvard. It also explains why none of the other self-described originalists joined Thomas’s concurring opinion which paid misleading lip service to history but was error-laden and full of plainly incorrect summaries of our past.
One can be an originalist or one can believe in a strong judicially enforceable principle of color-blindness limiting states and state actors. One cannot be both or you end up in the unpersuasive, anti-historical, non-textualist ramblings of Thomas’s concurring opinion, which he used to suggest that his open and deep hostility towards affirmative action is not the real reason for his decision (although of course it is).
For the justices in the majority in SFFA who were silent about history, and for Justice Thomas who distorted history, originalism had nothing to do with their preferred results.
2. All the originalists on the Roberts court have signed on to an interpretation of the Second Amendment according to which the arms covered by the constitutional provision are those in “common use.” That reading is not only completely inconsistent with the militia language in the actual text and with the holding of the Miller case from the 1930's, but as historians have shown, the application of the amendment to guns in common use represents exactly the opposite of what history actually shows was the original meaning of the text. Saul Cornell explains as follows:
One of the biggest historical errors in Heller was its claim that the right to bear arms was understood to cover all guns in common use in the Founding era. The paramount goal of Founding-era gun laws was to do the exact opposite: force Americans to acquire guns they did not wish to own, but that government desperately needed them to acquire.....Killing pests and hunting were the main concern of farmers, and their choice of firearm reflected these basic facts of life.
In Heller, Scalia claimed, without offering any convincing Founding-era evidence, that all guns in common use were protected by the Second Amendment. This is the opposite of the historical reality that governed arms regulation and policy in the Founding era. Government policy sought to encourage Americans to acquire military quality muskets and punish those who failed to do so.
There is much more to be said about the Court's anti-originalist and false history in Heller and subsequent gun cases but for now the essential point is that a major step in the dramatic and deadly broadening of federal gun rights by the justices was Heller's holding that all guns in common use are covered by the Amendment, when history and text are clear that only weapons suited for military use were protected.
Accurate history just does not matter to the justices but current gun policies do. That is the opposite of originalism in any of its many forms.
3. All the originalists on the Roberts Court have signed on to a number of First Amendment cases that go far beyond the prohibition of prior restraints and licensing schemes that were the dominant concerns of the ratifiers and drafters of the First Amendment. As late as the 19th century, there were blasphemy convictions in the United States.
The judicially aggressive First Amendment jurisprudence of the Roberts Court is by definition living constitutionalism because there are no plausible originalist arguments suggesting that the government using the First Amendment to punish speech after the fact would have been a constitutional concern of the founding generation. That quite modern concern, while vital to any healthy democracy, simply cannot be justified on originalists terms, and the Roberts Court has not even tried. The so-called originalist justices simply ignore historical sources in most free speech cases and instead center their opinions around the Court's own completely non-originalist jurisprudence.
4. In 2013, the Roberts Court infamously struck down a key part of the Voting Rights Act, claiming that Congress needs to have a strong reason to treat different states differently under federal law. Section 2 of the 15th amendment, however, gives Congress the power to enforce that amendment through “appropriate legislation.” There is no equal-protection-of-the-states clause in the United States Constitution.
The three self-identified originalists on the Court at the time all joined that decision, which was directly contrary to text and history. There is no tradition or history supporting the Court's limiting of Congress’s powers under the Reconstruction Amendments in this manner. The equal state sovereignty principle is judicial fantasy, super-strong living constitutionalism, and absurd as a policy choice.
It is certainly not originalism in any form.
5. All the self-described originalists on the Roberts Court have signed on to the institution's war on the regulatory state. The reversal of Chevron, the creative modern invention known as the major questions doctrine, and the uber-formalist insistence on the unitary executive when it comes to the hiring and firing of federal officers are political values embraced by the Republican Party. There are many cases in this area of law where the Roberts Court overturned or changed federal laws with virtually no reference to founding-era sources, such as those collected and examined by Professors Mortenson and Bagley, showing without any doubt that the Roberts Court's separation of powers and delegation decisions are inconsistent with originalism.
The authors of that article argue that that the "Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized limits. To the contrary, the Founders saw nothing wrong with delegations as a matter of legal theory." They also detailed how the "early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era, with little if any guidance to direct them. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning."
The conservative justices on the Roberts Court have not seriously addressed this history in their decisions for the obvious reason that doing so would interfere with their policy preferences.
I could provide many more examples of important country-changing living constitutionalist cases decided by the Roberts Court. The First Amendment, the Second Amendment, the 10th, 11th, and 14th Amendments, and the invisible constitutional provisions allegedly supporting anti-commandeering, sovereign immunity, and presidential immunity principles have all been used by the Roberts Court to implement the modern sensibilities and political choices of today's Republican Party.
Originalism is the justices' invisible and imaginary new cloak. It is not really there, and it does no real work.
We must move past this dangerously misleading fiction to have a mature and sensible federal judiciary.