Most defenders of originalism agree with Vermeule that originalism needs a justification outside of itself.
I still remember the thrill of reading Justice George Sutherland’s dissent in Home Building Loan Association v. Blaisdell. In that case the majority of the Court allowed Minnesota to extend the time that homeowners could protect their mortgages from foreclosure even against the terms of their contract. The decision flew in the face of the text of the Contract Clause, which provides that “No State shall impair the obligation of contracts. “The Court’s reasoning was essentially that the emergency of the Depression justified the abrogation. Justice Sutherland wrote a devastating dissent, showing not only did the constitutional text prohibit Minnesota’s action but that the Framers foresaw the need to protect creditors precisely in times of emergency. In a course where almost all my fellow students celebrated the Warren Court, Justice Sutherland was my hero.
A few years later I became an attorney in the Office of Legal Counsel at the Department of Justice, and national security issues were part of my beat. Here a majority opinion by Justice Sutherland—United States v. Curtis Wright Export Co.—loomed large. And his claim that the executive had plenary authority over the foreign affairs was the best precedent in all of the United States reports for my client, the President. Even then, however, I had some doubts about the soundness of the decision as a matter of original meaning.
Mike Ramsey, the leading expert on the original meaning of the foreign affairs provisions of the Constitution, has articulated the reasons for these doubts far better than I could have:
Curtiss-Wright makes two core claims. First, foreign affairs power vests in the national government not by operation of the Constitution, but as an inherent aspect of sovereignty. Second, within the national government, foreign affairs powers vest in the President because the presidency is the office best suited to exercise them. The first of these points lacks basis in text and history. Most obviously, it is flatly contrary to the Tenth Amendment (which says the national government has only delegated powers); it’s inconsistent with the numerous grants of foreign affairs power actually in the Constitution (war, treaties, ambassadors, etc.); and it’s inconsistent with the way the founding generation – notably in the Federalist essays– discussed foreign affairs powers, which they described as delegated powers. Sutherland’s second point is even worse as an originalist matter – he makes no effort at all to link his conclusion to anything textual or historical, resting instead on the modern needs of U.S. foreign policy.
Recently, I came across another of Justice Sutherland’s decisions of much the same ilk, but perhaps even less sound. In United States v. Burroughs, Justice Sutherland upheld the constitutionality of the Federal Corrupt Practices Act—a kind of campaign regulation—as applied to the election of the President and Vice President, or more precisely, their electors. The difficulty for an originalist is that Congress seems to have no power to regulate this matter. Congress’ power over presidential elections is extremely circumscribed: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” If these limitations are not perfectly clear from that clause itself, they are made even clearer when this very bounded authority is contrasted with the somewhat more ample authority Congress has over congressional elections: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Sutherland does not directly address the powerful textual argument against Congress’ authority. Instead, he makes a sweeping claim of extra-textual authority that is very reminiscent of Curtiss-Wright:
The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.
Sadly, the hero of my youth has become for my middle age another figure with feet of clay. His dissent in Blaisdell shows he had it in him to be a fine originalist. Why, in these other important cases, did he so fail this jurisprudential test? One thinks first of the usual explanation: Sutherland was results-oriented. He was an internationalist, and Curtiss-Wright’s location of foreign affairs authority in the presidency facilitated internationalism at the time. He had served as a senator, and the Burroughs decision’s ratification of election regulation advanced confirmed power in the national government.
Another explanation may be that the rise of living constitutionalism in the Progressive Era affected conservative as well as liberal justices. Justices may be even more captive to trends in jurisprudential theories than to trends in political ideology. Perhaps that explanation should give us hope today, as originalism continues its comeback in the academy and in the courts.