The Modern History of Originalism

Hello friends welcome to the National Constitution Center and to today's convening of America's town hall I'm Jeffrey Rosen the president and CEO of the MCC let's Inspire ourselves as always for the learning ahead by reciting together the national Constitution Center's mission statement here we go the national Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the U.S Constitution among the American people on a non-partisan basis we have some exciting programs coming up in July next Thursday July 6th we'll host a conversation on Montesquieu and the constitution on July 13th we'll have our Supreme Court annual review with the co-hosted with the ADL with an All-Star cast and of course our We the People podcast will be covering the end of term Supreme Court decisions uh over the next days and weeks so be sure to tune in to that as well uh we'll collect questions throughout the discussion today and please put your questions in the Q a box we'll get to as many as we can and now it is an honor to introduce our Dream Team panel to learn about the various strands of originalism Jay Joel Alessia is assistant professor of Law and co-director of a project on constitutional originalism and the Catholic intellectual Tradition at the Catholic University of America's Columbus School of Law he's a fellow at the Columbus School of Law Center for religious liberty a non-resident fellow at the American Enterprise Institute and the director of the Hispanic student mentoring and Leadership program he's a uh be previously practiced law at Cooper Kirk and served as a law clerk for Justice Samuel Alito Anastasia Bowden is director of the Robert a Levy Center for constitutional studies at the Cato Institute before joining Cato she was a civil rights attorney at the Pacific Legal Foundation where she co-created the superb podcast disc which I hope you'll all check out I'm her writings have been featured in The Washington Post The Wall Street Journal and many other outlets and Sharif Burgess is associate professor of law at Notre Dame law school he's co-author of What is marriage men and women of defense and debating religious Liberty and discrimination before joining Notre Dame he practiced law Jones day and also served as a law Clerk to Justice Alito thank you so much for joining us Joe Lucia Anastasia Bowden and Sharif gurges I'd love to begin by helping our audience understand the various strands of originalism and textualism and then explore their intellectual evolution uh uh Joel what what why don't we begin with you just yesterday in the more of the Harper case uh we saw very different approaches to originalism from Chief Justice John Roberts in the majority and Justice Thomas leading the dissenters how would you distinguish between the originalism of Chief Justice Roberts and the textualism of Justice Thomas and and how does that fit into the various strands of originalism and testualism today well thanks Jeff and thanks for inviting me to be part of this um I would just Begin by saying that I wouldn't classify the chief as an originalist and he wouldn't I think classify himself as an originalist but I do think it's fair to uh classify both justices Kavanaugh and Barrett as originalists and they joined uh the chief's opinion and more uh and then you had a dissent by uh justice Thomas joined by Justice Gorsuch in full and Justice Alito uh joining only on the jurisdictional question uh and so there is real disagreement between those two sets of originalness in in more I should very quickly note that my firm uh litigated more so just for full disclosure on that um I think that what that what the disagreement in that case shows is one way in which originalists can be classified which is how they approach Starry decisis how they approach precedent that's a major division within originalism the extent to which you are uh uh you take on board uh prior precedent now Justice Thomas's dissent thought that uh prior president could be reconciled with the position that he was adopting which he also thought was a better reflection of the original meaning but I think you saw a broader conception of precedent and uh the force of precedent in the chief Justice's opinion um and that seems to be based on what we've seen so far that seems to be broadly reflective of how Justice's Kavanaugh and Barrett approach star decisis that they seem to have um a broader and perhaps uh Stronger understanding of Starry decisis than say justice Thomas or Justice Gorsuch thank you so much for that um Anastasia how would you characterize the various strands of originalism um there were certainly a more of a textualist Focus to Justice Thomas Justice Gorsuch and Justice liledo and more where they were asking what the word legislature meant whereas the majority was asking what the word legislature meant at the time of the founding and how it had been interpreted by state courts constitutions and precedents um and Justice Gorsuch is often called a textualist whereas Justice Barrett uh perhaps calls herself an originalist so so how would you unpack the British strands of originalism and types of sure and thanks for having me Jeff um I'll start by saying that when originalism really arose to prominence most recently it was original intent originalism and that was trying to determine the intent of the framers and given various difficulties with that theory that is first of all there's many framers how do we distinguish whose intent or what the majority intent was um so that's a difficulty uh analytically but another difficulty would be that it's not really fair to hold people to the unwritten intent of the framers because they weren't expressed pardon me and so you know really we should only be held as with all laws to to the text that we can be aware of of what the governing rules are because those difficulties there was a change from original intent originalism to original public meaning originalism which tries to ascertain uh the meaning of the words and the Constitution when those words were ratified and I would say that that's the dominant strain of originalism right now it's a form of textualism of course and um and I think that's the one that that you see most prominently in Academia and at the Supreme Court but something that I'm particularly interested in is I've seen a little bit of a shift in originalism since the Supreme Court's decision last term in Bruin um where there is a focus on history and tradition in a way that I don't think conforms to its traditional use within uh original public meaning originalism that is usually the justices will look at historical practice sure but that's only to determine um the original public meaning of the words in Bruin we saw the court um say that Allah will only be upheld if there's a historical analog and I think that's something new and different and it's showing up in various cases this term and it's something I'd be you know happy to explore more later in this discussion thank you very much for that so Sharif we've we've put on the table already two at least several differences among originalist first Joel said there's a difference in their various approach to precedent and then Anastasia flagged this question of the role of history and tradition as opposed to the original public meaning at the time of ratification how would you identify the various strands of originalism and is there a division among them uh in their approach to reading the text at the time of ratification um as interpreted historically over time or simply its ordinary meaning to the dictionary um what it would mean to an ordinary reader today sure and I want to Echo everybody's thanks for being included in this I think the national Constitution Center is doing amazing work happen to be Affiliated um I think uh what's been identified so far definitely Dimensions along which originalists disagree how much weight to give to precedent what the object of the inquiry is are you looking for the original intent of the framers their goal in adopting a particular text or are you looking to the meaning to members of the public at the time of the text that they adopted I agree with Anastasia that the the emphasis certainly is on the latter I would say that within Academia in particular but but I think it's going to have it's to some extent reflected in Court's practice there's a question about non-textual factors and what role they have so everybody tends to agree that there's some everyone who's originalist that there's some very special authority to the founding arrow to the era in which the text was ratified and that that kind of authority what it meant at the time in some sense trumps other factors but but um within Academia there are questions for example about whether you can consider not only the original meaning of the text but the original methods or tools of interpretation that prevailed when the text was adopted so for example do you look to background principles of the common law do you assume that a criminal statute only governs well this is in the case of statutory law but there are analogs and constitutional will only govern you know conduct within the jurisdiction things like that and this starts to connect to what Anastasia was saying about the role of History obviously all originalists will agree that early history can be evidence of original meaning if the first Congress voted up the First Amendment The Establishment Clause and also began its legislative sessions with prayer than most originalists will think that's evidence that The Establishment Clause doesn't rule out legislative prayer but what about the role of later history is it one of the other factors that the founders or the other ratifiers of other texts would have thought was fair game for courts that are trying to maybe fill gaps in the text um does does histories have some other role to play When the text and its original meaning and maybe even the original criteria for interpretation run out and so on very interesting thank you so much well let's um put a concrete case on the table and discuss it as a window into it to various approaches of originalism and and that's Bruin the the Second Amendment case that the court recently decided involving New York's concealed carry law and there was a vigorous debate between Justice Thomas and the majority who argued that uh both the original public meaning of the Second Amendment and its historical loss over time required judges to look to historical analogs for uh restrictions on the Second Amendment right to bear arms throughout the range not only of American history but also dating back to the statute of Northumberland and the dissenters saying that the majority was just playing fast and loose with originalism and changing the Baseline about what period of time mattered in order to reach their preferred result so Joel how would you describe the debate between the majority and the dissenters in in Bruin and who do you think had the better argument well I think part of the debate between the majority and the dissent in Bruin is just a methodological debate about originalism itself I mean Justice uh Briar's dissent uh takes issue with the with over what he uses over Reliance on his on history and historical meaning in interpreting the Second Amendment and that is no surprise because Justice Breyer has always been a Critic of originalism and has always viewed uh uh the Second Amendment more through an interest balancing approach uh weighing various uh risks of harm and benefits to come up with what at least he would view as the the best most reasonable policy um I don't think that's mischaracterizing him I think that that's how he would generally view constitutional adjudication more broadly uh but I do think that there are a lot of methodological questions that are left unresolved in Bruin uh that we'll have to look to subsequent cases to see how they're cashed out so one that Justice Barrett Flags in her concurrence sense in Bruin is and this goes to something that Sharif was just talking about and that he's written about in his scholarship you know what role does uh historical practice have after 1791 when the Second Amendment is ratified or 1868 when the 14th Amendment is ratified and the reason why those are the kind of two major time periods is because in 18 when the the second amendment was initially ratified it only applied against the federal government the reason it applies against the States the Supreme Court has said is because the 14th Amendment uh incorporates the Second Amendment against the states and so there's an interesting originalist methodological question about well when we're trying to figure out how the second amendment applies against the states as was the case in Bruin are we focused on the meaning of the Second Amendment in 1868 or in 1791 and that also then helps you figure out well what what kind of practices historical practices are relevant the ones closer in time to 1791 closer in time to 1868 what about the time period between that how relevant is that and just Mrs Barrett was just pointing out that Bruin doesn't really resolve those questions and those are major methodological questions going forward thank you very very much for that for that um Anastasia what about that question I guess Justice Barrett called it historical liquidation of the question of what history matters after those ratification uh benchmarks of 1791 and 1868 how do you think uh what do you think of the way Justice Thomas treated history in his majority opinion in Bruin and and what do you think the right answer is for the uses of history and original list uh liquidation yeah I think it's it's right that Justice Barrett wrote separately to to state that concern and it's something she's actually written separately this term many times to emphasize is we need to get the timing right we need to get the methodology right to make sure that we have a coherent Theory and that it's um consistent and respected but something I'm I'm more interested in is that Justice Thomas also did something different entirely with originalism in my opinion which is this over-reliance on historical practice so not not just looking at historical practice at any given time period to determine what the words mean but instead to say that laws will only be upheld if there is a historical analog and I think the problem with that is that historical practice can't be determinative because sometimes the government gets it wrong or uh the courts get it wrong so if you consider something like The Slaughterhouse Cases where the Supreme Court gutted the Privileges or immunities clause in a way that almost everyone acknowledges to be wrong you know we can't now rely on historic Urban practice to say that that um that that informs the original public meaning because it it's contrary to the original public meeting or if you consider racial discrimination up until Brown V board or loving um the fact that that the government may have been flouting the equal protection Clause's mandates is not uh probative of of what the equal protection Clause uh requires and I think even some of the practices cited by Justice Thomas himself and Bruin I mean he cites historical practices of denying gun rights to various minorities whether religious or political or racial um and so those practices are undoubtedly unconstitutional and why should we look at those to inform the meaning um of the of the closet issue and then of course one one other thing I'll add is that when there's new technology there simply won't be a history to rely on because it won't have been previously regulated um so so I think this is something new and different and Incorrect and it's also just analytically wrong our Constitution doesn't codify practices it doesn't say that the government may only do the things that it was doing or may not do only those things that it could not do part of me at the time that the constitution was ratified the Constitution codifies principles and those principles can yield different results in different times we take the meaning of the words to be fixed but the application may change and so I think this over emphasis on on historical practice is wrong-headed very interesting Sharif um help us understand Justice Thomas's approach to historical practice in Bruin where he looked to historical practice in starting the Progressive Era around 1900 about gun regulation and said the New York law was not consistent with that practice and and a case like more where he didn't look to practice at all including the practice of judicial review of State Court decisions or um and and simply looked at the the word legislature and what it would mean to an ordinary Observer how in particular does Justice Thomas decide the question of when it's relevant to look to history and what periods of History we should look to sure so on more in particular I think what he would say is that when the original meaning of the text is clear then historical practice whether at the time or much later can't override that meaning and I suspect that in more he thinks the word legislature is clear enough that later or even contemporary practice can't override it in Bruin history seems to be playing a couple different roles so at some points it sounds like it's doing the thing that Anastasia and I and others have said is totally benign according to originalist lights which is looking to practice especially practice at the time of ratification to figure out what people thought the text that was ratified meant at other times it looks like it's doing something a little bit different which Heller the first big Supreme Court case of the modern era on the Second Amendment uh did which is to say look the Second Amendment codified a pre-existing right it referred to the freedom of the people to keep in their arms and so that right was that word that phrase is a shorthand for a right that's constituted by practices leading up to ratification uh and that's one other role that practices might play another you mentioned liquidation is the idea which that if the text is unclear then the practices maybe even of later generations can be regarded as filling in gaps in the meaning and we stick by those practices unless we have a strong reason to override them the same way with we do with judicial precedence um but I think I agree with Anastasia that that in some points in the majority opinion history is playing a different role that it's much harder to justify by originalist lights and the premise seems to be if we have a long-standing history of regulating guns certain way even if it's a history that arose very late after ratification as you point out then that could justify a regulation that's similar to that today but if we don't have a long history of regulation of a certain kind then we of the kind that's under review then the one that's under review is and I think the reason that doesn't make sense is we're there we're not using practice as evidence of original meaning or as a way of filling in gaps in meaning we're using practice as a kind of straight jacket we're saying if they haven't done it before then they can't do it um but there are all kinds of reasons that previous generations might not have passed a regulation beyond the idea that they thought that it was unconstitutional they may have had no need to the technology might not have arisen that created the need they may have had political or other reasons for going in a different direction now just as Thomas in his defense anticipate some of these points in the in the majority opinion he says you know the analysis for what's analogous and so on might look a little different if we're dealing with a regulation that addresses brand new technologies and so on uh uh or or problems social problems that weren't apparent uh in the past but I still think the idea of requiring a regulation to be analogous to one that has a long-standing history where the history doesn't focus on the era of ratification uh it's hard to explain in original Scripts very helpful thank you so much so just to sum up some of the different uses of History you've all of you have identified Sharif you just said sometimes the justices look to history to codify original public meaning and other times they're codifying the practices leading up to a ratification and other times you're looking to history when the text is unclear but you've expressed questions about uh using it as a straight jacket and saying if if if a regulation hasn't been done before it can't be done again um Joe let's focus on uh something that several of you have identified Justice Thomas has claimed that when the text is clear you don't have to look to history and as I understand it in more he's saying the word legislature is clear it can only mean legislature it can't mean legislature as constrained by a state constitution and therefore you don't have to look to the history which suggests that the framers thought the legislatures were constrained by state constitutions and then a case like the affirmative action cases where in the gretter case he said the text is clear it clearly means colorblindness therefore practice suggesting that the framers might not have thought color blindness isn't relevant do I have that right and that raises the obvious question how can you be so confident the text is clear when you know people thought Civil War is about this meaning and they didn't think it was clear at all uh so you're asking specifically about in the affirmative action context yeah both in affirmative action and more those are two two cases right where where Justice Thomas says that the text is clear and then colleagues who include you know the Chief Justice Roberts Justice Kavanaugh and Justice Barrett don't find the text clear at all so when does he decide when the text is so clear that he doesn't have to look to history so I I think that um the the fact that originalists or textualists disagree on whether a text is clear uh isn't really that probative about whether the text is in fact clear um it could be clear and that some one side of that debate is just wrong uh in its analysis uh and originalists bring to bear textuals bring to bear all sorts of tools of interpretation traditional tools of interpretation to try to clarify the meaning of text um uh canons of interpretation about how words used in one part of the document are also used in other parts of the document so for example in Heller uh the one of the ways in which the court gets to the conclusion that the second amendment protects an individual right to keep and bear arms is to say that uh the Second Amendment refers to the right of the people and the court looks at the majority of him by Justice Scalia looks at how has the phrase the people been used throughout the rest of the Constitution and it always is used to denote some sort of individual uh right so therefore that suggests that in the sacrament it's also an individual right as opposed to some sort of collective right so that's just one example of the kind of textual tools that can be used to uh clarify the meaning of the text uh quite apart from historical practices I will just quickly say Jeff if I may in response to something that Anastasia said earlier um I probably do disagree with her on the role of practices to this extent um it seems to me that the relevant question I don't disagree with her when she says that uh originalism insofar as you have a a constitutional provision that is codifying a principle rather than some very specific rule right like you know present has to be 35 years old that's a very specific rule that's not some general principle but sometimes the text codifies A A more of a principle as she said um and it seems to me that the relevant question in that case is what was the understanding of that principle at the time that the text was ratified because there are many different versions of a principle that could uh be with more or less plausibility reconciled with the text of a provision so the freedom of speech could be understood in many different ways and you could still try to conform it to the words the freedom of speech so it seems to me what matters is how did the people in 1791 understand the phrase the freedom of speech what was the principle they thought they were putting into the text and the best way to to get at that is to figure out well what did they do in terms of their practices relating to speech that gives you a very strong indication of what is the principle they had in mind when they put in place the freedom of speech so practices at the time of ratification of any constitutional provision strike me as essential to understanding what that language meant what the principle was uh and to the extent that Anastasia disagrees with that then I think we do have a disagreement uh but if if she's just criticizing the kind of later subsequent practices that could be you know sometimes decades removed from the ratification as were some of the practices uh relied upon in Bruin that strikes me as as a very fair criticism of the use of practices along the line Sharif also mentioned thanks so much for that as Anastasia your response my response is that I don't I don't think we disagree at all um I I do think of course historical practice is relevant to to figuring out what the principle is what what I uh was bringing out from Justice Thomas's opinion in Bruin is a test wherein he says um the existence of a historical practice alone is determinative of whether current practices are constitutional it can't just be that the existence of a historical analog or absence of a historical analog um is is the Constitutional test I I agree with you that the practice is is solely relevant to to the meaning of the term so I don't think there's um as big if I'm understanding you correctly there's big of a disagreement um as as you may think uh but turning back to to the question of you know actually Joel just said something that he took the words right out of my mouth um in response to your previous question jeff which had to do with um you know how Justice Thomas determines whether a word is clear at the outset and whether that is different from how other justices determine that that words are clear and require more inquiry um I think my comment on that would be that the fact that originalists disagree doesn't discredit the Endeavor right because the Endeavor is aimed at seeking out public meaning and that's difficult and people may disagree we saw that this term in the Indian Child Welfare act case where there was an extended uh debate between justices Gorsuch and Thomas who are the two leading originalists and they came out on other sides of the inquiry but the fact that they disagree doesn't mean that originalism itself is is wrong it just means that one or the other is correct about the original public meaning of the Constitution and what's nice about originalism is it gives us a sort of neutral Baseline to judge each opinion and to determine um who's doing it correctly or who may be biased in some way or or sort of um picking and choosing different histories um and so while you know originalism cannot it cannot eliminate bias but it seeks to minimize bias and it gives us a neutral Baseline to determine who's doing originalism correctly or who's um who's letting their biases show through and so I think that's something that I want to point out because people always point to these disagreements there was there were disagreements between Scalia and Thomas too right but that doesn't mean that that originalism is meaningless or valueless it just means that um that we can still use it as a tool to check the justices in a in a valuable way thank you I think I just lost you so I uh I'm gonna uh jump in and uh say Sharif um what's your thought about this important discussion about when originalist disagree about whether the text is clear so in a case like more uh is is Justice Thomas saying the word legislature so obviously means legislature and not legislature as constrained by a state constitution that it doesn't matter the fact that the original uh public meaning of of the legislature was something different and that those who ratified it assume that it would include legislatures um or or is he uh saying that the original public meaning as the text would have been understood was that um state courts couldn't have constrained the legislature even if the practice was to the contrary and I'm just trying to understand uh methodologically when it is that uh justice Thomas thinks that if the meaning is clear we just don't have to look to history at all because the the meaning should be obvious yeah I do think that he thinks its original meaning not just the um the way the text strikes Us in isolation the meaning we would assign to the text today this should be controlling uh and you know it's always going to be a difficult question I agree with Joelle that even though there's something paradoxical about saying that the meaning is clear if there's another Justice who's disagreeing with you it's uh it's not a contradiction it is possible that things could could end up that way uh on the on more in particular I suspect his views my sense is that his view is something like you know if we think that legislature means uh not just the assembly that passes laws but also the entire apparatus of the legal system that provides checks on those laws including state courts and so on then there was no reason for the framers to use the word legislature rather than State and this is a move that you see in textualist and originalist arguments of various kinds in constitutional law and statutory law and contract interpretation you know you want to give every word a role to play if you can and so if they said State Legislature rather than State they must have meant something more specific than the entire lawmaking apparatus of the state I think more broadly just picking up on something on Australia said um uh uh you know the the presence of these disagreements can count as an art as a point against one of the arguments for originalism which is that it provides a more predictable objective and determinate Criterion for deciding these cases um but whether it does or how much of a point against originalism it provides is always a comparative question you have to ask uh compared to what and if it's compared to a position that uh gives free or play to a lot more factors any one of which might be or might not be decisive or get different weights in different cases then that's uh that might not be a reason to think that originalism uh is uh devoid of the kinds of arguments that are usually thank you so much for that one more question about this because I want to make sure I understand it um and uh Joel Justice Thomas is is he saying that the word legislature must have only meant uh legislature and not more or they would have used a different word um and is that the case despite the fact that all the practice when the uh Constitution was ratified as the majority points out was to the contrary and and the Assumption in fact seems to have been the legislatures were constrained by state courts and and and and other canons of interpretation that would lead uh justice Thomas in some cases to to say that the word must have meant something even if the practice was to the contrary let me let me just ask you that question just help me understand you know how the justices and and again justices Thomas Gorsuch and Alito tend to be more textureless and 10 more often to say the meaning is clear we don't have to look to history what what what theories or or approaches are they relying on so to take your specific question about more and then your more general question uh so first on the specific question about more I actually think that the the argument uh embraced by The Descent by just Thomas's descent on the merits and more is a little more complicated than than just a question of like is the term legislature unambiguous uh because the the argument for the theory that Justice Thomas embraced in his descent uh includes for example the uh the the idea that well where does the state legislature get the authority to uh draw congressional districts for example not from their state constitutions but from the Federal Constitution is the Federal Constitution that gives it that Authority and therefore it would seem to follow it is this Federal Constitution that restricts and governs the substantive decisions that the state legislature makes in determining congressional districts not the state constitution substance because the the legislature is not deriving its authority to make uh to draw congressional districts from its state constitution uh and so that's a major part of the theory as well as to why uh this assignment of power to the state legislatures to draw congressional districts and to make other rules linked to Federal elections uh cannot be constrained by substantive Provisions in state constitutions and I think that there would also be disagreement by those who Embrace Justice Thomas's view in more with your characterization of the practices as being contrary to that view um and they're the the petitioners in this case and more and again my firm was one of what was litigating the case so again disclosing that um the uh the petitioners in in more uh argued that all these practices that were put forward by uh the other side and by and embraced by Chief Justice Robertson his majority opinion could actually be understood as consistent with uh the independent state legislature Theory uh so I think it's a more complicated argument than just a the the term legislature is clear and then nothing else kind of matters um but I think that uh your broader question about well how do you know whether something is clear um and then you know how does that prevent you from having to go to historical evidence I mean it's a very it's a very good methodological question it's one that actually Justice Kavanaugh before he got on to the court he gave a a lecture and I think he published a a piece in Harvard a larva view on this too if I recall correctly uh arguing against methodologies that rely on how clear or how ambiguous is a text uh before resorting to something else deference or or whatever because he just says you know it's really difficult to figure out whether something is sufficiently clear uh that can lead to to all sorts of line drawing problems um and I so I I suspect that uh justice Kavanaugh if you were asking the kind of question you just asked me would resist the idea that originalism should uh come down to some inquiry into whether something is sufficiently clear before you resort to other forms of evidence thank you very much and very helpful to flag that uh piece by Justice Kavanaugh uh Anastasia can you say more about the differences in approach among the justices Justice Gorsuch is is famously and and a proud textualist and in cases involving statutory interpretation like like Bostock he he joined the Liberals in saying that the text of Title VII was clear and included sexual orientation discrimination even if the framers of Title VII didn't intend that result so in what ways does Justice Gore such as statutory and constitutional textual textualism differ from uh the originalism of Justice Kavanaugh and others I think I think most would say that uh focus on the text and the the literal text um than other justices who take history more into account right and and of course we see that Justice Thomas generally cares a good deal about history um Justice Barrett has has written extensively this term um to to say that she thinks that history is extremely important but that there are unanswered questions about what periods of History matter um and so in general um everyone's on the the same general page it's just the extent to which they take these different uh pieces of History into account and then as was mentioned earlier how much they care about precedent you know uh Scalia for instance was called a faint-hearted originalist because he himself recognized that he would sometimes uh rely on earlier cases that were contrary to the original public meaning because of Starry decisis you know I think there is a great debate within originalists about about the role of precedent and Starry decisis and whether we should adhere to to um to decisions that that are contrary that are acknowledgly uh contrary to the original public meaning for good reason I mean the interesting thing about Starry decisis is it only comes up when everyone acknowledges that the previous opinion is wrong right but we're determining whether to to keep the to keep the decision or not um so I think you know this conversation has highlighted all these debates within within originalism um but in general I think the primary uh mode of originalism is textualists it's just determining how to how to elucidate the the meaning of the terms and thank you for that uh Sharif your your thoughts about about that question of when the test was justices decide that the text is clear or not uh do they rely on canons of interpretation and how do you see the differences and approach between the more textualist justices like like Gorsuch uh like justice Gorsuch and and the the more historically oriented justices like justice Kavanaugh sure so I think one way to into that question is to think about the role of consequences uh now critics of originalists um uh including critics who think that the justices are acting in bad faith will say well the original is go by original meaning except when they don't like the policy valence of the outcome and in those cases they conveniently fall back on some other factor I I don't think that's generally the case I do but I do think there is a more subtle role for consequences so Justice Alito for example has described himself as a practice originalist and one possible way of understanding that though he hasn't uh spelled it out in detail as far as I can tell is that he will require a higher bar for the historical arguments about original meaning before he will adopt a ruling that would for example have very disruptive impact or disrupt expectations so in the Bostock case that you mentioned so that's a statutory in case it's instructive in this context um the question was whether Title VII of the Civil Rights Act when it says you can't discriminate based on sex in employment also extends to discrimination based on sexual orientation or gender identity Justice Gorsuch said if you look at the terms in isolation and then you put them together the answer you get is yes and it doesn't matter that nobody at the time or for decades afterward foresaw that and Justice Alito contests his claim on the original uh on the sort of public meaning of the text but also clear throughout his descent in that case is the sense that if the outcome in this case is contrary to the expectations of everybody who voted for the law every American who voted for those lawmakers and everyone's expectations for decades afterward then perhaps our application of originalism has and in that case textualism has come apart from the arguments for these methods in the first place arguments about Fair notice to people who are governed by the law about expectations predictability stability um coordination and so on so there's a way in which consequences might figure in when justices will regard and answer as clear or when they will adopt the apparent uh answer to uh to the interpretive question and when they will rely on precedence and sort of practices as a fallback uh thank you very much and very helpful to learn that Justice Alito describes himself as a practical originalist uh Joel more to say about the differences among the originalism of the various justices uh we have several uh comments and Mark Marcone says from this conversation there appears to be no coherent definition of originalism can you please provide a definition of originalism that all three panelists agree on that it's helpful to see the different approaches of the justices is there a single difference everyone agrees on or can you provide further nuances that distinguish between Justice's Alito Gorsuch Thomas Kavanaugh and Barrett sure I think that's a completely Fair uh concern that uh that was raised about uh is there any coherence to originalism given all the varieties that we've been exploring here I think that at a very high level of generality uh you could come up with a definition that the vast majority of Originals would agree to so it would probably be something to the effect of uh federal judges should interpret the constitution in accordance with the meaning that the constitution had at the time it was ratified and that any other methods of constitutional adjudication are subordinate to that ultimate Endeavor of figuring out what did the Constitution mean when it was originally ratified so that general definition then allows you to figure out to dive into some of these uh disagreements so some of those disciplines are about as Sharif said the object of the interpretive Enterprise are we looking to original intent original public meaning some other form of uh objective that we're trying to get to another would be well how do we treat some of these subordinate methodologies below uh the original public meaning like Starry decisis what role does sorry decisis play in adjudicating cases and then yet another set of disagreements could be about justifications for originalism why should you be an originalist there are a lot of different theories as to why you should be an originalist I've put forward a natural law justification for originalism uh Scholars named uh John McGinnis and Michael Rapaport have put forward a consequentialist uh uh justification for originalism you have Randy Barnett who's given a kind of libertarian natural rights justification for racism there are all sorts of different justifications for originalism that's another dimension on which they originalists disagree so the the point that I would that I'm trying to underscore is you have different ways of categorizing originalists according to their justifications according to the object of interpretation according to how they regard various uh methodologies that are part of the adjudicatory process but are subordinate to original meaning um but I think they all broadly agree on the definition I gave that in adjudicating constitutional cases uh federal judges should apply the meaning of the Constitution as it was understood at the time of ratification Jeff can I can I have something there please do of course yeah I think I think one thing that's important to clear up is is um regardless of some of these minor differences you know we have uh most justices trying to engage in some form of originalism or textualism you know Justice Kagan famously said we're all textuals now we're all originalists now at different times right and so um you get you get these really interesting decisions like uh this term counterman versus Colorado where the court is trying to determine um the proper men's Raya or mental state requirement when it comes to True threats if the government can ban true threats but what mental requirement is is required for the speaker so as to not violate his first amendment rights and you get Justice Kagan writing an opinion 7-2 saying well looking at history um to fill out the meaning of the First Amendment historically true threats were banned so so we're going to say that um the government can ban true threats and then and then she ends up saying that recklessness is the appropriate standard and what's really interesting is then you get a concurrence by Justice Sotomayor joined by Gorsuch right the ultimate originalist and Sotomayor is saying hey you're doing it wrong you're doing this originalism wrong um you know it's true that true threats have been unprotected but you have to look at what men's Raya was required throughout history um and you didn't do that and so I just I want to point out that um all of the justices are have find textualism at the very least and to some extent originalism persuasive and are engaging in it more and more and so um you know it's it's not just a so-called uh conservative uh interpretive tool anymore absolutely important to note Justice Keegan's uh important remark were all originalist now she said that it attributes to Justice Scalia meaning that text in history is relevant but also flagging as this discussion does the vigorous disagreement among the justices both liberal and conservative and within the conservative uh justices about how to look to text in history uh Sharif to sum up the disagreements that Joel and Anastasia flagged um original intent or original public meaning what role does story decisive play What's the role of history and liquidation why be an originalist for natural law reasons for consequentialist reasons for natural rights reasons and what's the uh and and what what are the consequences of originalism do they lead to judicial deference to democratic outcomes do they constrain judges uh from applying their own policy preferences or do they simply tether justices to the Constitutional texts given that range of disagreements I have to ask the the obvious question how in in what sense could we really say that originalism constrains it all yeah it's a serious question um and I think it might that we might shed some light on it by going back to what the the most original what I think of as the most primordial um motivation for originalism as a modern movement um that you know began with people like Robert Bork uh and at MIS uh the former Attorney General Robert Bork the professor and then federal judge and then failed Supreme Court nominee and um and that runs right through Scalia and then right through the Evermore elaborate and detailed and fine-grained distinctions that are being drawn by academic and even some judicial originalists today which I would sum up with a kind of jargony word of formalism but which I think of as a view about the judicial role at least the role of federal judges in our system applying written laws and the basic impulse behind it is the sentence that uh to the extent possible and it and it isn't always possible because sometimes the sources run out but to the extent possible the judge's job is to follow the say-so of somebody else the uh the Congress that adopted a statute um the Congress and then ratifying conventions of the states that together adopted uh constitutional provision if that provision if that statute if that other legal source delivers an answer um for how to resolve this case it's not the judge's role to second guess the Judgment of those other actors based on a moral or policy disagreement with their judgment in other words that to to coordinate across a huge Nation um to make sure that there is enough stability and predictability that people can order their Affairs we need it to be the case that some people decide what the right policy is and others defer to their decision and just apply it in more or less predictable ways so it's this idea sometimes it's described as faithful agency that judges or the faithful agents of Congress or of the ratifiers of the Constitution uh sometimes it's defined in terms of judicial deference uh or non-activism or something like that but you know there are fine grain differences but I think all of those are getting at this idea that to the extent possible and again it's not always possible the judge's role is to defer to the policy and value judgments of other actors and that is number one I think the original motivation for this as a movement as I said number two I still think it's doing a lot of work in motivating people who are Originals today even across all all the differences that you identify and number three I think it's also the element of originalism that is most widely shared and that most justifies and warrants Justice kagan's comment that we're all Originals now you will not find a Judicial nominee for any uh level of the federal Judiciary saying at a senate confirmation hearing yeah there are cases where I can judge that the uh the statute the Constitutional provision requires XYZ if you just if you just grant it all its value and policy judgments but I'm going to rule the opposite because I have a substantive disagreement with those values that is such a helpful uh account of of the justification for originalism despite the many disagreements we've identified you say that a basic commitment to judicial formalism and an aversion to having uh judges second guess the policy choices of other actors um is is is one plausible at uniting force uh this discussion has been so Illuminating in revealing the the evolution among different justices and Scholars of the uh the original uh purpose and uh theoretical and constitutional justification for originalism I I have to say that when I studied uh originalism from the great liberal originalist akilamar in law school I had thought that the purpose of the project was to constrain judges and have them defer to democratic decisions and in a recent discussion with the Keel where I noted that lots of folks think that original judges are not doing that now they're not deferring and they're not constrained Akil said that no that was never the purpose it was really just to tether judges to the constitutional text and I guess that's a that's a version of your response um Sharif a formalistic commitment to the text is what justifies originalism even if it doesn't constrain and even if it doesn't lead to deference but um a discussion like this is is very Illuminating in in in showing these disagreements um I would love just brief concluding thoughts from each of you on this central question um given the Illuminating disagreements and agreements that we've identified what's your view about the best justification for originalism today and uh Joel why don't we start with you uh my view is going to be very similar to what Sharif just said that uh the best justification for originalism is that uh if judges do not adhere to the meaning of the Constitutional provision as it was understood at the time that it was ratified they undermined the authority of the people to govern themselves and in doing so they do great harm to the common good because the common good requires that somebody be the authoritative lawmaker within a society and for us it is we the people in setting the higher law of the Constitution to govern our uh our government and to the extent that you undermine the people's ability to uh enact constitutional Provisions that have real force moving forward you do great harm to that Society so ultimately it is justification that is rooted in uh an understanding of popular sovereignty thank you very much uh for that um and for all your great contributions Anastasia what do you think is the best justification for originally yeah I have a quite different view um of the best justification which I think points uh to the fact that there are many justifications and you can read several of them from many different Scholars about why to support originalism um but for me I I would have to disagree that those are the two most persuasive reasons because I don't think you know democracy is the guiding principle of our constitution individual liberty is and you know having been a civil rights attorney um I'm not very I don't look favorably upon deference because I I want judges to engage with the Constitution and to to strike down laws the whole point of the judge is to be counter majoritarian the Judiciary is to be counter majoritarian but anyway I'll give two very quick uh reasons why you should be an originalist one is that for an order for the Constitution to be a document that establishes rule of law that actually limits government actors it can't mean whatever we want it to mean at any given moment it has to have a fixed meaning that constrains government action and in that way it bolsters rule of law it bolsters limited government and it bolster separation of powers but but that's probably the one that would appeal to most people for me personally what I find most persuasive is that originalism locks in an initially legitimate lawmaking scheme a system of government that is inherently legitimate because it limits government power it contains strong protections for individual liberty including procedural protections like due process and separation of powers and because it's locking in something that is initially legitimate and that secures all of our our rights um I think it's it's a legitimate form of interpretation thank you very much for that and Sharif last word to you yeah I guess I would draw on some of the threads from um both Joelle and Anastasia's answers uh for me there are lots of different ways you could set up a system you don't have to set up a system uh to follow in which judges the people who apply a law uh follow the original public meeting or anything uh very specific like that um I think we in fact have set up that kind of system and the kind of choices that a community makes and uh as a matter of law whether at the very broad level of creating its structure of government or at the more retail level of regulating particular conduct with particular laws should be followed uh unless it's grossly unjust or has proven unworkable and needs to be abandoned that the the common good of the community is best served by that um in the in in our system maybe more specifically to our system I think our reasons for adopting a written Constitution are also reasons for applying the original understanding of it include I would include not just the original meaning but the original criteria for interpretation uh or to the extent that they've been lawfully changed since then as the way to understand it why is that well the main reason to adopt an a written Constitution is that we Face a bunch of crucial choices that we have to make as a community and that we are likely to disagree about if we just make them from moment to moment in some kind of uh free-form way so it's precisely our expectation of future disagreements about what's morally or politically Justified that leads us to tie our hands in um by a text adopted in the past so it's the Dead Hand in a way which I understand the moral arguments against being bound by that but I think the moral argument for it is that whatever reason we had for agreeing to abide by this text is a reason for agreeing to abide by the choices and the decisions and the policy judgments reflected in that text so it's deference not necessarily to whatever Congress or the president do today in that perspective I agree with that Anastasia but deference to the judgments embodied in the text by the actors in the past that we've agreed to go by because we don't think that if we just decided each decision from scratch today we would agree nearly enough thank you so much Jules here Anastasia and Sharif gurges for a really deep and Illuminating discussion of crucially important question of the various justifications for originalism it's an honor to learn from all of you and thank you so much dear NCC audience for taking an hour in the middle of your day to learn about the US Constitution on a non-partisan basis thanks to all bye

Channel: National Constitution Center

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Id: T40A8bLTjeA

Length: 59min 4sec (3544 seconds)

Published: Thu Jun 29 2023