Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
The press has been spinning Justice Gorsuch’s vote in favor of a resident alien in Dimaya v. Sessions as a surprising decision to side with the liberal justices. But that storyline misses out on the real significance of his action, which lies in his opinion, not his vote, however decisive. That opinion shows instead that he will be a sophisticated modern originalist, at least where precedent does not dictate otherwise, no matter where that originalism takes him.
In Dimaya v. Sessions, the question was whether a provision that allowed a resident alien to be deported from the country on the conviction of a category of crime was unconstitutional, because the category was unconstitutionally vague. (Briefly, it required judges to decide whether the a particular kind of crime, like burglary, created a “substantial risk of violence.”) Gorsuch argued in the affirmative. The most powerful part of his opinion was his reasoning that the Due Process Clause prohibited provisions in either criminal or civil law that did not give fair notice of the offense with which the government would charge the defendant. There are several important originalist steps that Gorsuch takes that have significance beyond this case.
First, Gorsuch reads due process as part of the language of the law. As Mike Rappaport and I have noted, if due process is read, as it can be, in ordinary language, the term would appear to mean something like fair procedure, a pretty open-ended concept. Instead, Gorsuch interprets it as requiring “customary procedures to which freemen were entitled by the old law of England.” And he finds that fair notice was something to which freemen were entitled and which courts enforced. This is a legal reading of due process, much like one the Laura Donohue gives to “reasonableness” under the Fourth Amendment, which requires searches to follow the strictures of the common law.
Gorsuch also notes that many of the other provisions of the Constitution seem to depend laws being reasonably clear. For instance, the right to a lawyer is not much help if the law is very vague. This kind of analysis shows that originalism at its best considers a provision in light of the rest of the Constitution to resolve ambiguity or uncertainty. Gorsuch also argues that this reading better comports with the separation of powers. Vague statutes allow Congress to delegate core legislative responsibilities. I would also note that judges around the time of the Framing applied separation of powers principles to help fix the meaning of constitutions, as in the Kamper v. Hawkins. This is an interpretive principle that may well have been deemed applicable to the Constitution. It would then be an original method of interpretation.
There are also some general lessons beyond the obvious one that originalism cannot be captured by attitudinal model which sees judges as politicians in robe voting for policies they like. First, originalism is not about finding the clearest rules. Reading the Due Process Clause to require only that a legislature have passed a law would be a clearer standard than requiring fair notice but, under Gorsuch’s view, not the accurate one. Nor is originalism the best theory of interpretation because the theory itself is likely to yield a patently obvious answer. Justice Thomas, a good faith originalist, is doubtful that Gorsuch is right in his analysis. Originalism is bettered justified on other grounds.
But originalism does tend to avoid the kind of ad hoc policy calculus in which the Dimaya plurality engaged. No doubt concerned that business people and others might try to use this decision to challenge vague regulatory prohibitions of the administrative state, the plurality suggested that it was key to the case that Dimaya faced the hardship of deportation. Gorsuch’s response was appropriately tart:
But, grave as that penalty may be, I cannot see why we would single [deportation] out for special treatment when . . . so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.
Nevertheless I am particularly uncertain about an important aspect of Gorsuch’s position and thus whether he correctly decided this case. He allows the Due Process Clause’s restriction on vaguensss to be made into a facial challenge. In other words, Gorsuch permits the defendant to challenge a statute even if his own conduct falls within the clear core of a provision with much vagueness around the edges. I think Clarence Thomas may have the better of the argument that the Due Process Clause does not extend so far, and he does so for reasons I hope to consider in a subsequent post.