It’s a great time for liberals to brush up on their knowledge of originalism and textualism. These judicial theories, which say that judges should interpret constitutional provisions or statutes by looking solely at their “original public meaning,” are embraced by many of the conservative judges and justices appointed by President Donald Trump who have begun to build a stranglehold on the federal judiciary. Despite recent work demonstrating the bankruptcy of these approaches, liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories.
In recent decades, conservative judges and lawyers, led by Justice Antonin Scalia, advanced two language-based theories for judges to use when interpreting law. The theory of originalism says that courts should interpret phrases in the Constitution in line with the “original public meaning” of the words. The theory of textualism says that courts should interpret the language of federal statutes in line with the meaning that an ordinary speaker of the English language would have ascribed to it at the time Congress enacted the statute. The theories are mostly parallel, though originalist theorists sometimes ask not what the words alone of a statute meant in isolation but how they were socially understood, such as whether someone in the 18th century would consider flogging to be “cruel and unusual punishment” in violation of the Constitution’s Eighth Amendment.
Just about everyone agrees that original understandings and textual analysis are relevant to judicial interpretation. But while most judges and lawyers before Scalia would look as well at some legislation’s purpose, the history of enactment, and contemporary social values, originalists and textualists following Scalia say they will stop and end their analysis at original meaning. It is a kind of formalism which resuscitates the moribund idea that judges do not make law in part through value judgments, but instead find law through neutral principles.
Everything aside from originalism, Scalia argued, was “living constitutionalism,” illegitimate political judgments masquerading as law.
In a terrific new book, Originalism as Faith, Georgia State University law professor Eric Segall demolishes the case for originalist constitutional interpretation. Segall traces the long history of originalist thought in American legal circles from the 19th century to the present time. The heart of the book demonstrates the bankruptcy of the originalist approach.
Segall’s key thesis is that originalism does not constrain in the hands of judges purporting to use it. Scalia and Justice Clarence Thomas, another originalist on the court, have been transparently inconsistent in their uses of originalism. Sometimes they have allowed originalist argument to be trumped by other considerations, such as respecting older (but wrong) precedents.
More often, these justices simply ignored originalist arguments in deciding key cases. So, as Segall explains, when it comes to the 11th Amendment, which provides in part that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State,” these justices have “interpreted state immunity from suit by citizens of ‘another’ state to mean citizens of the ‘same’ state, despite the clarity of the word another.”
Similarly, as I explain in my book on Scalia, The Justice of Contradictions, Scalia refused to address the argument raised by his judicial clerk, Gil Seinfeld, that the original understanding of the 14th Amendment was that affirmative action plans did not violate the clause. At the time of the amendment’s ratification, Congress passed laws giving benefits to newly freed slaves. Scalia simply ignored the memo.
Originalism is nonconstraining even on its own terms. Most scholars of originalism acknowledge that the text does not answer all questions fully, such as whether the 14th Amendment’s equal protection clause includes a right of same-sex couples to marry. When judges and justices decide cases in what these scholars call the “construction zone,” they have considerable discretion. As Segall puts it, “while original meaning may cabin some extreme choices in the construction zone, original meaning will run out as a useful tool for judges needing to resolve the case. When that happens, the judge’s other ‘normative commitments’ will have to do most of the work.” It is no surprise then that the latest wave of originalist scholarship has made an originalist case for same-sex marriage, a result Scalia likely would have abhorred. Segall demolishes originalist theories as indeterminate—indeed, he finds the construction zone idea the most “mystifying” aspect of originalist jurisprudence—and indistinguishable from living constitutionalism in all but rhetoric.
There’s a similar case to be made about the indeterminacy of textualist approaches to statutory interpretation, as I and Judge Robert Katzmann have separately argued. Textualism does not constrain judges; it just shifts ideological struggles from a search for confirming pieces of legislative history to a search for the right dictionary from the right era.
But despite Segall’s smart analysis—and the strong critiques of textualism—originalism and textualism’s stock is on the rise because Trump is managing to fill the Supreme Court and federal appeals courts with committed originalists and textualists.
As Mark Joseph Stern recently explained, the ACLU is making a play for Justice Neil Gorsuch (one of the court’s new originalists and textualists) in a new Supreme Court case involving bond hearings for undocumented immigrants, Nielsen v. Preap. The ACLU’s brief is all about grammar, and at one point during the oral argument, the ACLU’s lawyer, Cecillia Wang, parsed the phrasing of the statute with Gorsuch in minute detail, remarking: “Well, I think I’m a grammarian too. The reason why, Justice Gorsuch, is that sometimes adverbial phrases do describe a noun, just as they do in this statute.”
This was super smart lawyering from Wang, and it is the model for what liberal lawyers are going to need to do to win the occasional case. It is unlikely to sway any of the conservative justices in cases where the stakes are high—think abortion, same-sex marriage, voter ID, or gun rights—but because at least some of the justices actually believe they are applying neutral principles (whether or not they actually are), they can be persuaded to vote against conservative positions in cases that matter less to their core ideology. This, I think, explains why Scalia, and now Gorsuch, have sided with criminal defendants in some cases raising constitutional claims.
In a recent podcast conversation, Indiana University Maurer School of Law professor Ian Samuel made the point that a deeply conservative justice believing he or she is constrained by originalism or textualism is better than a justice like Samuel Alito, who is also deeply conservative but not similarly constrained. I continue to believe that in the core cases of greatest importance to conservatives, originalism and textualism are hardly constraining. But Samuel is right about that subset of second-tier cases.
And so it’s time for liberals to dust off the old dictionaries and put on their hard hats for work in the construction zone, despite Segall’s and others’ trenchant critiques. The work won’t be pretty, but it may sometimes get the job done.
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