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More on Radical and Moderate Originalism

My last post distinguished between radical and moderate versions of originalism. This post discusses a few more aspects of the distinction and assesses my own views as radical or moderate.

First, one sees the original and moderate versions assumed in debates about originalism. Some people claim that originalism would require radical changes in existing doctrine, and use that to criticize originalism. Other people defend originalism by denying it would be radical, in effect saying it would only be moderate.

By contrast, some radical originalists view their radical interpretation as morally beneficial because it conforms with their political philosophies. Others then attempt to criticize those radicals by claiming their radical interpretation of the Constitution is mistaken.

My own views about the Constitution’s original meaning is something of a mixture of the radical and moderate views. In general, I have an intellectual proclivity in different areas to attempt to synthesize different positions to reach a middle of the road view. (For example, I have something of an intermediate view between consequentialism and deontology as to moral philosophy.) But that is not what occurs as to my originalism. I just look at different constitutional issues and come to different conclusions. Thus, I find the radical interpretation of one clause to be persuasive and the moderate interpretation of another clause to be compelling. I think of it as honest, while others might see it as incoherent.

In general, I tend to have a strong view of federalism, believing that there is a very limited commerce power, no spending power, and a relatively limited necessary and proper power. I also have a pretty strict understanding of the separation of powers. My views on economic rights have changed over the years and tend to be middle of the road for originalists.

When I was confident that the Fourteenth Amendment incorporated the Bill of Rights, I believed the Fifth Amendment Taking Clause did not restrict regulation (only physical invasions), but the Fourteenth Amendment Taking Clause that was incorporated might have extended to regulations. These days, I have a more complicated view of incorporation, which may or may not implicate that result.

As to the Privileges or Immunities Clause, I tend to believe it protects a wide array of substantive rights, but those rights are limited by the police power. And those rights might or might not be dynamic—that is, those constitutional rights might change as the rights recognized in the different states change over time.

Further, I tend to believe that the freedom of speech and press provisions are wide but shallow—that is, the rights extend to a whole variety of areas, such as commercial speech, but do not provide as strong protection to political speech as modern doctrine provides.

Finally, the rigor of my interpretation of the original meaning is moderated by a doctrine of precedent. While I favor a more limited version of precedent than the one the Supreme Court purports to apply, it is still stronger than the no precedent version of many radicals.

Overall, then, I end up with something of an intermediate view of originalism, combining elements of both the radical and moderate versions.

Reader Discussion

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on January 20, 2017 at 13:35:04 pm

Mike:

Would be interested in reading your views on the "limits" of political speech vs. modern doctrine.

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gabe
on January 20, 2017 at 17:40:32 pm

I mostly agree with your distinction, but I wouldn't agree with the terms you used to define them. Instead I would refer to the two sides as "originalism" and "fainthearted originalism." Justice Scalia was a self-described fainthearted originalist who believed in a fairly strong form of stare decisis. Justice Thomas, on the other hand, is much more of a consistent originalist regardless of what the precedent says. I think the key difference is the factors that go into stare decisis. Should judges consider not just the correctness of the prior decision (which I think even Thomas would consider important as to if stare decisis applies), but should also consider how much of a change it would cause. A change to the interpretation of the commerce clause or the general welfare clause would necessary cause significant changes in the operation of government. That was too much for someone like Justice Scalia, but someone more like Justice Thomas is willing to "let the chips fall where they may" to get the right originalist meaning.

I'm much more in the mold of Justice Thomas believing that it is the duty of the judge to faithfully defend the Constitution regardless of what prior judges thought the meaning was or what the consequences of that is. Duty to the Constitution is the highest of judicial values.

Getting to the details of the clauses, I'm probably right there with you as to Commerce, General Welfare, and N&P Clauses as well as separation of powers. I think the current administrative state is a clear violation of separation of powers by placing judicial and legislative powers in the hands of the executive. Instead I believe as James Madison said: "The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

As to federalism, I think it's important that the powers of government be given mostly to the state governments (but for those enumerated), so in that sense a strong federalism ideal. But at the same time I believe it's entirely appropriate for federal judges to strike down acts of a state that violate rights. So more of a nationalistic view of rights (which states can add on top of), while a federalism based view of powers not delegated.

I'm strongly in favor of economic liberty rights. These are natural rights of which it is not proper for the federal government to violate, and (as a natural right) is one of the rights spoken of in the 9th Amendment, and I think the Founders clearly included within the right to liberty under the 14th and 5th Amendment.

As to the Privileges or Immunities Clause, to me this clause is simple to understand (the Ninth Amendment is harder). The "immunities" that states cannot violate are the individual natural rights protected by the Federal Constitution including the right to life, liberty (including the enumerated liberty rights to speech, press, assembly, bearing arms, and the uneumerated liberty rights in the 5th and 9th Amendment like economic liberty) and property. The "privileges" are all the positive individual rights granted by the Federal Constitution (right to trial by jury, warrant requirements, grand jury requirements, etc.). In the end, basically all individual rights in the Federal Constitution are incorporated (not statutory rights though, Congress can't expand the N or P clause).

The interesting thing to me is to contrast the Privileges or Immunities Clause with the Privileges and Immunities Clause. To me the only important difference is the second part of the clauses. The P or I clause ends with "of citizens of the United States" while the P and I clause "of Citizens in the several States." To me this is targeting the Federal Constitution in the P or I Clause and the State Constitution in the P and I clause. The P or I clause says that a state must protect or grant all the natural and positive rights protected by the Federal Constitution. The P and I Clause says that a state must protect or grant a citizen of all the natural and positive rights that the state grants to it's own citizens. So to me, even things like an in-state tuition discount's that is only valid for residence of the state violates the P and I clause (it's a positive right, ie a "privilege," granted by the state that the state won't grant to other citizens that are just visiting). If a state is going to grant a positive right to it's own citizens then it must grant it to citizens of other states too (likewise if a state is going to protect the natural rights of its own citizens, it must protect the natural rights of citizens of other states equally).

As to the takings clause and regulatory takings, I think the question is two fold. (1) is the regulation an exercise of the police powers (if so it is not a taking, so prohibiting someone from harming someone else on their land is not a taking) (2) could the right being regulated be sold as an easement or a covenant to another person. If so then the regulation is a taking of that easement or covenant and the person is due at least the fair market value of such an easement or covenant (although even fair market value may be too low given subjective value, the Constitution says "just compensation" not fair-market value, fair-market value should be at least the base).

As to freedom of speech and press. I take the phrase "Congress shall make no law " very seriously. Within the scope of the right, these rights are absolute (there is no balancing of rights, even if the state has a so called "compelling" state interest, no balancing of interests). But as these are natural rights the scope of the right is limited by the rights of others (natural right's don't overlap, one right ends where another begins). So things like libel and slander do not fall within the scope of the right to freedom of speech.

Police powers to me are the traditional area understood to not be protected by natural rights. So unless there is a positive right explicitly granted by the Federal Constitution, states are free to regulate within the police powers without violating the P or I clause. But outside of the police powers, the liberty interests of the individual loom large and unless the state is doing something that does not invoke it's coercive powers (like government speech), it likely violates a natural right. Marriage is an example though where a state is not invoking it's coercive powers to "recognize" a marriage as a marriage. It cannot treat for instance same-sex couples and different-sex couples differently in any privilege or benefit just because it likes one and not the other (that's an equal protection clause problem and starts to invoke it's coercive powers), but it can choose to recognize some marriages and not others without violating natural rights of anyone. But if a state tried to prohibit private marriage ceremonies that the state doesn't like, that would be invoking it's coercive powers and would violate natural rights.

As to precedent, I think the judge has to examine the precedent and ask if it is correct or not. If it is not correct then the judge has a duty to do everything within their power to overturn it. If they are not a majority on the Supreme Court they may not be able to overturn it, but at least they can speak out against it, either in their opinion as a lower court judge (even if they are required to follow Supreme Court precedent they can speak out against the precedent if it is wrong), or as dissent as a Supreme Court judge. Stare decisis only applies, in my opinion, when the prior decision is a close one where the prior decision is not "wrong" even if it may be unclear if it is right. Too often I think judges use stare decisis as a crutch to fail to even try to re-examine the prior precedent, which I think a judge has a duty to do, or to not make politically hard choices that would have large consequences. We give judges life tenure so they can ignore the politics and give what they believe is the true and correct interpretation of the Constitution or statute regardless of the politics.

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Devin Watkins
on January 20, 2017 at 18:09:19 pm

Devin:

Absotively!

I especially like the discussion on P or I and P&I Clauses and the distinction between Federally guaranteed rights (i.e., those natural rights) and positive State rights. It seems consistent with the argument advanced by Kurt Lash (and others) and with the intent of the framers of the 14th.

Interesting analysis on same sex marriage and "private" versus "state" recognition. Of course, under your analysis, were the State to use it's *coercive powers*, e.g. not affording "marital" filing status on State Income Tax filings, it would then be in violation of the EP Clause; and thus, the State is compelled to *recognize*, de facto. both the private and State granted marriages. Difficult, isn't it, to "split" this baby.

Like you, I also would prefer that a Judge do his / her duty, i.e., judicial duty a la Hamburger, and cast the chips to the wind when something is clearly wrong. Somewhere, I remember Justice Thomas actually saying this (am I correct) in regards to Administrative Law / Jurisprudence.

I would still like to see what Rappaport has to say about the "limits" of political speech vs modern doctrine. I am partial to Hadley Arkes argument(s) in this area. He, too, appears to believe that the modern doctrine is a bit too expansive and protects actions (speech / writings) that the Founders would never have contemplated.

Let us hope Rappaport is listening.

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gabe
on January 20, 2017 at 20:40:23 pm

While Kurt Lash and I are somewhat close on the P or I clause (both of us believe the clause protects all individual rights protected by the federal constitution), we have radically different views of unenumerated rights. He doesn't believe they exist at all, he sees the rights "retained by the people" as purely rights of local self government (i.e. state's rights), he hasn't (in my opinion) expressed well how that differentiates the meaning of the Ninth from the Tenth Amendment (at least in practice if not in theory). So to him the P or I clause just prohibits states from violating the enumerated rights in the Constitution (no unenumerated rights are protected according to him). That makes so sense to me for all kinds of reasons (makes the Ninth Amendment meaningless in light of the Tenth, makes no distinction between the word "Privledges" and the word "immunities" and totally ignores the idea of unenumerated rights that the Ninth Amendment explicitly acknowledges).

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Devin Watkins
on January 20, 2017 at 20:41:07 pm

*no sense...

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Devin Watkins
on January 20, 2017 at 20:49:57 pm

As to the marriage question, if the state really wishes to allow a kind a joint filling between some union, there is no reason to limit this to just married couples. Call same-sex couples domestic unions or civil unions or whatever and then give them the right to file jointly as well. Is there any reason the state cannot do that? Then it can (if the state chooses) not recognize the marriage, but still allow people to file jointly.

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Devin Watkins
on January 21, 2017 at 11:13:26 am

"He doesn’t believe they exist at all, he sees the rights “retained by the people” as purely rights of local self government (i.e. state’s rights), he hasn’t (in my opinion) expressed well how that differentiates the meaning of the Ninth from the Tenth Amendment (at least in practice if not in theory).

Yes, BUT - could not one argue that the position you advocate actually does more to limit the scope of the Tenth Amendment (vis a vis "State powers) by enhancing the scope of the Ninth Amendment AND the Federal Power to secure those unenumerated rights, whatever they may be.

Also, while not pretending to be an expert on this and Lash, I did not read as much into Lash's "so called disparagement" of unenumerated rights as perhaps you did.

Or is this all simply a clash between balancing State police powers and those rather "elastic" unenumerated rights; i.e., can not ONE State perceive that certain liberties may require some MORE constraint than perhaps a neighboring State - rather than having the Federal Power determine how best to avoid Oakeshottian collisions?

Are we a Federal Republic or not (of course, nowadays, we are NOT).

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gabe
on January 22, 2017 at 12:39:58 pm

Devin:

In a nutshell: What I am saying is that your position also poses a challenge vis a vis 9th and 10th Amendments by positing a Federal power to intervene in those areas of (non-fundamental) non-enumerated rights that perhaps were intended to be left to the discretion of the States to resolve / otherwise protect / constrain as they deemed proper.

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gabe
on January 27, 2017 at 11:30:25 am

As to the marriage question, if the state really wishes to allow a kind a joint filling between some union, there is no reason to limit this to just married couples. Call same-sex couples domestic unions or civil unions or whatever and then give them the right to file jointly as well. Is there any reason the state cannot do that?

Perhaps; perhaps not. This becomes a "separate but equal" argument.

Arguably state policies have helped imbue the word "marriage" with a normative quality that is not present in the term "civil union." Imagine if a state decreed that henceforth the term "marriage" is reserved solely for the legal union of white people--but that's not a problem, because other couples can secure the same legal advantages by entering into a "civil union." Would such a policy withstand Equal Protection scrutiny? If not, then it's not clear that a state could adopt such a policy discriminating on the basis of male/female couples and other couples.

It's not really a question of the degree of scrutiny, but rather of the value of the access to the normative institutional name "marriage." If the court regards this normative value as too speculative to justify a claim, then presumably the state could discriminate on any basis it pleases--including racial ones. Conversely, if courts accord value to that name, then presumably the state must have at least a rational basis for discriminating in how it allocates that value--and no such basis presents itself. That is, any level of scrutiny would defeat the law.

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nobody.really

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