An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach. (I had been expanding on a post by Eugene Volokh.) It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue. At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.” I just checked back to see whether there had been a change, but none has occurred. That’s disappointing.
The website adopts many claims that are problematic from an originalist perspective. Some of these are problematic for their substance. Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate. In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.
1. First, the website writes:
This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.
This claim appears to explicitly endorse a “living Constitution.” To be sure, the technical claim could be interpreted in a way that an originalist would endorse. Applying a broad provision such as the Commerce Clause to transactions made over the internet would involve a new situation. But originalists would typically not describe those as involving a living Constitution. That term suggests creativity on the part of the justices.
2. Second, the website states that “While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.”
It is not entirely clear how to interpret this claim, but the language before and after this quote seems to suggest that the Constitution does not explicitly acknowledge judicial review. This is very misleading. It is true that the Constitution is not explicit about all forms of judicial review, but it does clearly indicate that there will be judicial review of state laws. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The italicized language makes clear that judges are supposed to be enforcing the Constitution against laws enacted by legislatures. Thus, the principal argument against judicial review – that the power to determine whether a law violated the Constitution in a particular case was not judicial power – is foreclosed by the text of the Constitution. It is true that the existence of judicial review of a congressional enacted law is not unambiguously addressed by the constitutional text, but once judicial review is allowed at the state level, there is a strong argument that the judicial power includes it at the federal level as well.
3. A third problem with the website is its claim that
Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”
This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying. Both are in my view mistaken. The New Deal viewed this quote as endorsing the idea that judges adapt constitutional meaning to changing circumstances and values. But that was not Marshall’s point. He was merely saying that the Constitution was a short document that did not have the detail of a code.
Perhaps I will check back in 6 more years to see whether the Supreme Court has changed the website. But with a new originalist Justice, isn’t it time to adopt a more neutral description of the Court’s function?