Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its self-inflicted debilities. Smith’s essay is a great start. I’m not sure I would characterize the jurisprudence he envisions as “activist”—re- or otherwise. I’m not even sure it needs to be strategic (although it can be). But Professor Smith has hit a very important doctrinal nail on the head.

He is a rock-ribbed originalist. But he wants to give originalism a “strategic dimension.” Placing before us a nonoriginalist, rights-creating decision in a hypothetical “Case One,” he says that in “Case Two,” also hypothetical, originalist justices should decline to extend that precedent even if that would be their first-best, authentic preference. (Actually it would be their second-best; the first-best, by definition, is to overrule Case One. But that option is foreclosed.) Instead, the originalists should identify—within the bounds of their understanding of the Constitution—a “doctrinal complement” to circumscribe the newfangled right.

If the nonoriginalist majority from Case One is divided in Case Two, the originalists’ strategic vote will produce a majority to limit the new right. Smith dubs this strategy “reactivism.” Like mutually assured nuclear destruction, he writes, reactivism would give nonoriginalist justices an incentive to exercise restraint.

That, I think, is over-claiming. “Nuclear” reactivism would say something like this: If you liberals keep making up new rights under the Due Process Clause or the Ninth Amendment or whatever, we conservatives will retaliate and crank up rights that we happen to like—especially when those rights actually happen to be in the Constitution, like property.

That version of originalism sails under various banners—a “presumption in favor of liberty” (Randy Barnett), or an “engaged” judiciary (Institute for Justice, Cato Institute). The proponents of this stance wouldn’t characterize it as strategic; they think it’s the actual Constitution. Their program holds attraction for scholars and pundits who, ideally, would prefer judicial restraint. But that project went by the boards eons ago. Roe won’t be reversed; let’s make the most of it.

It’s fair to say that this version of “reactivism” has never deterred liberal activists. They know that the other side doesn’t actually have any nuclear weapons. The Takings Clause? Fought that; lost. A Commerce Clause with teeth? Please. A return of Lochner, in some form? That’s a scarecrow, not a rallying cry. I tell “engagement” advocates what I tell all my libertarian friends: Feel free, and good luck. Gun rights aside, though, I doubt that much will come of it.

Engagement is not, in any event, Stephen Smith’s project. What he advocates in his Liberty Forum essay is something like damage control. Nonoriginalists will get to keep their precedents; they just won’t be able to go as far as they might have hoped. That isn’t much of a deterrent, and probably none at all.[1]

How much, then, can Smithean reactivism really do for you, or us? Quite a bit, in fact.

Originalism, as Smith notes, has forced nonoriginalist Supreme Court justices to prevaricate in their nomination hearings; it has never restrained them on the bench. For the reasons just mentioned, “reactivism” cannot produce that restraint, either. In a sense, it’s absurd to demand the impossible of originalists and their “ism.” Still, Smith is asking the right question. He is right, moreover, that originalism must be complemented, not abandoned.

The paradigmatic originalist case is the interpretation of the raw constitutional text in “Case One.” Does that happen? Sure. Gun rights. Recess appointments. But these encounters turn into originalist obsessions precisely because they come along only once in a blue moon. In the ordinary course of events, the originalist justice will encounter not just the text but a raft of precedents—and not just precedents but worked-out doctrines. The constitutional text is (hopefully) the source of these doctrines and remains their lodestar—but it’s mediated through the various doctrines. Moreover, any given one of them comes replete with a set of neighboring or overlapping doctrines—on remedies, or jurisdiction, or avoidance, for example.

Some originalists have huge problems with this picture. The constitutional text, they say, is all there is. That text, moreover, must be read clause by clause. In the most extreme version of this approach (John Manning’s), you’re not even allowed to look at the constitutional structure (except in very rare cases); that smacks of “purposivism” and “common law constitutionalism.”

I find little to commend that approach. It insists on reading the Constitution like a statute, which is absurd and, for what it’s worth, decidedly nonoriginalist. (Go read The Federalist.) It means that Gibbons v. Ogden (1824), and M’Culloch v. Maryland (1819) and Osborn v. Bank of the United States (1824), and practically all of the other Marshall decisions were wrong. (All of them insist that it’s a Constitution we’re expounding, not a statute; all state extra-textual doctrines.) And to all intents, clause-bound originalism puts the actual Constitution out of operation, so long as you believe in even a limited version of stare decisis. This version of originalism is indeed, as Smith charges, a strategy of unilateral conservative disarmament—which is why it can be safely taught and advocated at Harvard Law School.

Stephen Smith, if I understand him correctly, wants to mobilize the doctrine-laden, interdependent nature of constitutional law. Look carefully at his stylized scenario: If Case Two were a simple matter of extending, or not, the holding of Case One, the originalist response would be obvious, and obviously despairing. (“Case One was wrongly decided and by all rights should be overruled. But we certainly shouldn’t extend it.”) Thus, it’s the originalists’ decision in the Case Two scenario to invoke some other, “complementary” doctrine—and to treat it as a “package” with the rule of Case One—that makes their conduct strategic and gives “reactivist” originalism its bite.

Does it work?

The question does not call for speculation; it has an empirical answer. As Smith notes, citing a terrific article by Evan Caminker, the Rehnquist Court’s federalism jurisprudence was largely reactivist in Smith’s sense.[2] The Warren-Brennan Court’s rights revolution had armed plaintiffs with a million ways to sue state and local governments. Under Chief Justices Rehnquist and Roberts, the Court found doctrines to stem and then reverse that tide: sovereign immunity; official immunities; a “clear statement” rule; restrictive standing doctrines; limits on Ex Parte Young relief; a “congruence and proportionality” test for Fourteenth Amendment legislation; narrow “implied private rights of action” doctrines and their importation into Section 1983 cases; and much else, besides.

As the esoteric nature of these doctrines suggests, they are second-order doctrines; most aren’t constitutional in any immediate sense. But all are reactivist in effect (though not always in intent, on the part of all justices). A few owe their legitimacy, such as it is, entirely to that nature. The Court’s exotic immunity doctrines, for example, are hard to justify as anything other than a backdoor way of limiting remedies for dubious rights.

In creating this imposing doctrinal edifice, the Court demolished a large part of William Brennan’s legacy. Consistent with Smith’s understanding of reactivism, the conservative justices accomplished the feat without overruling a single rights-creating precedent.[3]

Quite a feat. Was it worth it?

One can argue that the Court’s federalism—that imposing edifice notwithstanding—hasn’t done much to invigorate federalism. The reason is that “reactivist” decisions, which mostly have to do with protecting officials of the state governments from suit, have been accompanied by a stream of decisions that hamper the citizenry in those states from making their own moral decisions in such matters as abortion and marriage. This schizophrenic, emaciated, government-centered federalism is actually Justice Kennedy’s first, authentic preference; it was also Justice O’Connor’s. Given the votes, though, that couldn’t be helped. An emaciated federalism is better than none at all.

One can further argue that “reactivism” is illegitimate, because it seems underhanded. If the justices lack the nerve to wipe out a recently recognized right, what allows them to render it ineffectual (for example, by clipping back the remedies)? Now personally, I don’t mind underhanded doctrines: it’s what I teach and what keeps my wife and kids in shoes. In truth, though, I can’t see anything wrong with treating doctrines as interrelated and as “packages.” The criminal mistake (I tell my students in their very first ConLaw, AdLaw, or FedCourts class) is to treat this body of law one case, one clause, one doctrine at a time. If you do, you’ll never comprehend the first damn thing about it. The doctrines belong together.

A third, far more potent objection is that justices often aren’t very good at identifying second-best doctrines. More precisely: contrary (I think) to Smith’s contention, it’s not at all clear that “reactivism” keeps you close—at least, closer than nonstrategic originalism—to the Constitution. It may in fact entrench constitutional error. That is especially true when the initial Case One decision was disastrously wrong and the compensating adjustments are numerous, are capacious, and—kind of, sort of—seem to work. The strategic adjustments take on a life of their own. Eventually Case One comes to look like it’s the Constitution itself, rather than error.

The quintessential Case One that hovers over all of modern ConLaw is Erie Railroad v. Tomkins (1938). It has been validated by a gaggle of reactivist doctrines, all of them highly involved and often complexified by re-re-activist doctrines, if you will, that have managed to put the original error beyond reproach. Or so I have argued elsewhere, at some length.[4]

Since this isn’t the place to rehearse a convoluted argument, here’s the broader, general point:

The packaged doctrines Smith characterizes as “reactivist” will work only if they are developed from, and understood against, the baseline of the first-best doctrines or principles they are designed to prop up or replace. Put differently: the first-best doctrines still have to have some grip, even if they are operating unseen in the background.

That is the only way to re-approximate the Constitution, instead of entrenching error. That is what distinguishes strategic decisions from mere tactical maneuvering that reaches the “right” result by making an unholy mess of things.[5] Smith, I think, agrees with these propositions.

This is a very hard thing to do, in case after case. And the man who could do it and did do it over the course of three decades is gone.

Over his illustrious career and even more so in the obituaries written upon his untimely death, Justice Antonin Scalia was treated—by friend and foe alike—as a grand theorist of the Constitution and its interpretive meta-theory. Then of course came the carping: he doesn’t understand Wittgenstein on language. He betrays his own principles in adhering to precedent. He fails to distinguish between concepts and conceptions. He doesn’t appreciate the many meanings of “meaning.” And so on.

All this about a jurist who proffered originalism as a “least-bad” option; who professed himself “faint-hearted” about the business; and who by all lights had zero interest in the increasingly metaphysical debates over just what sort of originalist one ought to be. The “grand theorist” theory of Justice Scalia is gravely mistaken. He was the quintessential “reactivist” or, better, doctrinalist—by temperament and disposition, I think, but certainly in practice. Justice Scalia’s high-toned textualist opinions (mostly dissents) are surely worth celebrating. But then, so are his doctrinal opinions. He understood that stuff like nobody else.

Some of Justice Scalia’s major opinions are explicitly “reactivist” in Smith’s sense.[6] The dissent in Mistretta v. United States (1989) is a prominent example; the concurrence in Stern v. Marshall (2011) is another. Other opinions make no bones about the enterprise. Alexander v. Sandoval (2001) and Armstrong v. Exceptional Child Center (2015) belong in that category. Yet others push up very hard against Justice Scalia’s first-order commitments. Read United Technologies v. Boyle (1988) or the 2011 decision in AT&T Mobility v. Concepcion: hard to swallow if you believe in hardcore textualism or for that matter Erie.

Did Justice Scalia make mistakes? Occasionally—for example, in somewhat cranky opinions on the dormant Commerce Clause. Did he always fully understand what he was doing? Arguably not. Printz v. United States (1997), for example, reads like a sloppy “reactivist” opinion, when in fact its anti-commandeering principle is foundational.

Was he always fully committed to the “package” doctrine of Smith’s Case Two? Probably not. I think he just held his nose for the Court’s sovereign immunity burble. (If memory serves, which it may not, he did not actually write any of those opinions.) To his very considerable credit, though, he confessed error in some instances, as in Tennessee v. Lane (2004). I went along with an absurd test (“congruence and proportionality”) for prudential reasons, he wrote; I now repent and will henceforth dissent. This jurisprudence bears little resemblance to the crabbed, clause-bound originalism that some critics ascribed to the great justice. Precisely on that account it merits celebration, or at least serious engagement.

As noted, I have problems with the “reactivist” label. “Activism” is not a terribly helpful category in the first place, and “reactivist” sounds manipulative. Something like “common law originalism” might be better (although I grant that it might make Justice Scalia spin in his grave). The point for now is simply this: We need not debate Stephen Smith’s project in a vacuum. It’s out there, open for examination and discussion. An appraisal of Justice Scalia’s doctrinal legacy would be a fine place to start.

I have just the man to write that article: Stephen Smith. Go to it, big guy.

[1] In entirely realistic circumstances, “reactivism” may in fact promote nonoriginalism. A nonoriginalist but non-insane justice might vote against a new right in Case One if it entailed all that it seems to entail. He or she might vote for that right in light of the prospect that “reactivist” justices will surely join him, or her, to provide a check in Case Two. I suspect that much of the modern rights machinery did in fact originate in that fashion.

[2] I am inclined to think the pattern is quite common. It characterizes the Court’s cut-back on Bivens actions and constitutional torts under Section 1983, and it’s probably also prevalent in the criminal justice area. That may in fact be the example that Stephen Smith—an expert on the subject—has in mind. I just don’t know enough about it to speak with any confidence.

[3] Okay, one or two: Parden v. Terminal Ry., 377 U.S. 184 (1964) (constructive waiver of sovereign immunity); and, depending on how you read it, Pennsylvania v. Union Gas, 491 U.S. 1 (1989) (abrogation of immunity under Article I). Big whoop.

[4] Michael S. Greve, The Upside-Down Constitution (Harvard University Press, 2012). The danger noted in the text is illustrated by the most famous defense of Erie, which rests precisely on the contention that the case itself paved the way for reactivism. Henry Friendly, “In Praise of Erie—and of the New Federal Common Law,” New York University Law Review 39 (1964) 383.

[5] That sort of “strategizing,” alas, seems to have become a habit on a nominally conservative Court. I would put Bond v. United States (majority opinion), Stern v. Marshall (majority opinion), Gunn v. Minton, and the Medicaid piece of NFIB v. Sebelius in this category.

[6] I provide case examples for purposes of illustration and omit discussion or elaboration for the sake of brevity. Happy to discuss on- or off-line.

Reader Discussion

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on April 21, 2016 at 16:43:11 pm

As far as strategies go, conservatism is always a losing strategy. I'll use a simplified (and somewhat silly, sorry) analogy that illustrates the point.

A dog is tied to a rock. The dog is just big enough to move the rock if the dog wants to go in a certain direction if the dog lunges hard enough. Over time the dog and rock will move in the direction the dog wants to go because the dog is creating movement and the rock is only resisting movement.

Conservatism is resistance to change. Progressivism is insistence on change. What we see happening in culture is a lot of occasional jerks in the direction of progressivism. We rarely see conservatism doing the same. Conservatives tend to react to change with the same way most of us react to fingernails on a chalkboard. Over time progressivism will win because conservatism doesn't pull back the opposite way since that would involve changing things. Conservatism tries to stay in one place.

Smith proposes pulling back the other way, as does Greve (in this excellent response). The originalists referred to in Smith's essay, the ones that originalism should be saved from, are the conservatives.

So, I'm looking at all this as a systems guy. I'm a software engineer and systems analyst by education and work experience. Some of the discussion of law goes over my head. But the general concepts of how systems work, and sometimes don't, is something I'm very familiar with.

In this case we have a system that is politically divided between conservative and progressive factions. We can safely predict that over time the nation will drift in the progressive direction. That's what both authors would like to prevent.

I'm dubious about trying to stem the slow tide of progressivism with tactics and strategies. You can slow it or stop it in some ways for some time, but not overall. It's just the nature of a system that is divided into progressive and conservative factions to drift towards progressivism. Fighting back and pulling the opposite way may make you feel like you are doing something constructive, but really that's just winning battles while losing the war, as we can see is happening all around us.

The correct way to break the system is to change its dynamics. The senate and presidency are partisan offices. Remove the partisanship in those places and the progressive advancement will stop. For the court that would mean that justices would no longer be appointed based on their partisan political disposition like they are now. With that dynamic removed from the court, a greater sensibility will be able to operate.

Changing the two offices to nonpartisan is technically trivial, but politically challenging.

Technically: Require by constitutional amendment that the two offices be nonpartisan. Support the amendment by changing the election technique by adding a few simple instructions to the voter as to what qualifies or disqualifies candidates for office (fidelity to the representees, experience, knowledge and character). On the ballot, leave the column to vote for a candidate who meets the qualifying criteria, and add a column to vote against a candidate who is not qualified. Add the "for" votes and subtract the "against" votes to determine the winner. When partisan loyalty interferes with fidelity to the public, the candidate is disqualified. As long as partisan loyalty is listed as a cause for disqualification, the voters will always elect nonpartisan candidates. It's pretty simple really.

Politically: This part is obvious. Changing election practices and amending the Constitution are difficult things to do. 'Nuff said.

While we're at it, set up the senate to exercise the secret ballot in their senatorial voting. That would immediately transform the senate from a populist to a conscientious office. A whole dynamic goes away; the one about having a false dualistic choice between majoritarian tyranny or minoritarian tyranny. A nonpopulist, conscientious senate would go a long way towards muting popular but unwise acts from the House, and also towards preventing underqualified appointees from entering office.

The problem in the court is not the strategies and tactics of political dualism. It's the court's membership. Instead of reacting to the symptoms of the problem, correct the cause which is the approach to the way they are appointed. Remove the sources of the problem, political dualism and populism, and a whole lot of problems go away.

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Scott Amorian
on April 21, 2016 at 18:01:08 pm

Trust Michael Greve to so parse the points of Stephen Smith’s essay to evoke comments (not a response).

What do we observe in the “cases” that elicit juridical action and reaction?

In Case One the establishment or “finding” of a right establishes (imposes) or “finds” a concomitant obligation [Hohfeld, inter alia].
Case Two concerns the performance of the obligation, determining the means of performance in addition to the effects of the relationships and circumstances involved.

Determinations in both impact individual liberty.

Legal systems are facilities of social orders, which orders, because they are made up of relationships occurring in particular circumstances, are always in transition as those elements change and “evolve.” Transitions are defined from some prior point or points of “origin.” The continuations of transitions are conjectures and probabilities..

The transitions of our own social order have adapted its legal system to function as a means of attaining ends; bringing with it the adaption of the functions of jurists (in addition to those of lawyers).

It is probably possible to “stop” or “pause” a transition and the resulting adaptions. But, is return to some prior point equally possible and would that return respond to the changes in relationships and circumstances that have taken us this far?

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R Richard Schweitzer
on April 22, 2016 at 15:26:38 pm

The return to a prior point is not possible, Richard. In the original condition, the history of the consequences of the conditions were not known. When returning, the consequences are known, so the additional knowledge of consequences always makes the condition different.

When we work with software, the only time we go back to some prior point is when we screw up a change so badly that we need to start over again. The general direction is always to progress. The only systems that don't progress are the ones that have been slated for termination since there's no point spending time working on something that isn't going to be around much longer.

That's at least part of what you are asking. Have we screwed things up so badly with unwise political and social changes that we need to go back and start over again?

I don't believe so. But I do believe that theoretically the dynamics of the political system can be changed so that fewer unwise political decisions are made. My question is how difficult it is to improve the dynamics?

The American system of government was design with the expectation that if there were problems with the design, the design could be fixed. What if the consequences of design flaws are such that they act to prevent corrections to the flaws? How do we work with that?

If we handed Congress a well thought out and credible plan for correction, would Congress be able to act on it?

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Scott Amorian
on April 22, 2016 at 23:04:29 pm


"That’s at least part of what you are asking. Have we screwed things up so badly with unwise political and social changes that we need to go back and start over again?"

The implied suggested analysis would be to determine the objective of "Originalism" given the degree of transitions that have occurred.

We can stop where we are and use "originalism" to measure AND analyze the transitions; but can we reverse their effects? How can "originalism" best serve in the determinations that will generate the transitions that will continue?

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R Richard Schweitzer

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.