fbpx

The Many Flavors of “Originalism”

Commenting on a piece I wrote for American Greatness, my colleague Mike Rappaport agrees with me in certain respects but chides me for being a proponent of “the old originalism,” which he regards as “false,” “problematic,” and “not real originalism.” Rappaport [1] considers himself a “new originalist,” which means that he would follow the original meaning of the Constitution wherever it takes him, even if doing so would create more opportunities for “willful” (or non-originalist) judges to make up rights (as they often do). I accept Rappaport’s criticism in the spirit in which was given, and concede that my piece cited the “privileges or immunities” clause of the 14th Amendment, moribund since the Slaughter-House Cases (1873), as a provision that the Supreme Court should not resuscitate, as many legal scholars now advocate, in part because of the jurisprudential mischief it would likely inspire.

Does that make me a “faux” originalist? I confess to favor leaving a 150-year old precedent in place, despite considerable sentiment that it was wrongly decided—although critics differ greatly in their reasoning—but contend that my position is consistent with “real” originalism. My explanation follows a brief digression on the current state of originalism.

There are many flavors of “originalism”: new, old, original intent, original public meaning, original methods, “faint-hearted,” “living,” “constructionist,” libertarian, “rule originalism,” and more all the time. The various theories of originalism are based on normative arguments, popular sovereignty, super-majoritarianism, and utilitarian (consequentialist) appeals, presumptions of liberty, and other bases outlined in Rappaport’s 2013 book Originalism and the Good Constitution (co-authored with John McGinnis). Theorizing about constitutional law—even the narrower field of originalism—has become a cottage industry in the legal academy, and the subject has spawned a staggering number of books, articles, symposia, academic centers, and blog posts. Originalists have developed their own jargon, with arcane terms such as “construction zones,” “interpretation zones,” and “legal turns.”

I have described this din as “a veritable Tower of Babel—a constitutional cacophony–at times.” Creative theories abound, and new “insights” are discovered with alarming frequency. Just keeping abreast of the burgeoning scholarly literature is a full-time job. To be candid, as a non-academic I monitor these developments—some of which border on hair-splitting, churning, or “law office history”—from afar. The spate of inventive theorizing in the name of originalism—increasingly esoteric and open-ended—reminds me of the torrent of “non-interpretive” scholarship that flowed from the law schools in the 1970s and 80s. In other words, originalism—now in iteration 3.0 according to some observers—is the new sandbox for the legal academy: fodder for the tenure mill.

McGinnis has observed that “sometimes there seem to be as many theories of the [Fourteenth Amendment] as there are theorists,” and the multiplicity of viewpoints only grows larger when focusing on the Constitution as a whole. Self-described “originalists” can reach completely divergent conclusions regarding the Constitution, while purporting to follow the same methodology! Some scholars have even defended the activist abomination of Obergefell on “originalist” grounds. As I have stated, “If the ‘new’ originalism is so malleable that it can be pounded into the shape of any desired result, it is not a useful guide for constitutional decision-making.”

I use the term “originalism” more broadly than the specialists to mean taking the Constitution seriously as a legal text—and interpreting it accordingly. When the text is simply unclear, the judge should not guess at its meaning. If this makes me a “faint-hearted” originalist (as Justice Scalia described himself), or an “old” originalist (like Robert Bork), so be it.

In their book, Rappaport and McGinnis develop a “normatively optimal approach to precedent under originalism,” pursuant to which “there must be strong countervailing benefits to justify to following nonoriginalist precedent.” I, in contrast, take a looser, fusionist approach to stare decisis, partly formalistic, partly pragmatic, and partly originalist. The Constitution has been around for over 230 years, and during that time the ever-shifting members of the Supreme Court have issued many thousands of decisions, purporting to act as neutral arbiters of the law. Predictability and stability—as well as the Court’s institutional credibility—require that past decisions be accorded some weight. A judicial system would be chaotic and unworkable if every issue of constitutional interpretation—starting with the threshold question of judicial review—began with a clean slate. The public would justifiably question the moral authority of nine unelected judges whose edicts shifted constantly with the political composition of the Court.

Back to the Slaughter-House Cases. Many scholars criticize the decision (or at least the majority’s reasoning), but few quarrel with the result. A group of butchers in the New Orleans area objected to an 1869 Louisiana state law regulating the operation of slaughter-houses, an activity that produces large quantities of animal viscera, blood, waste, and carcasses, capable of fouling drinking water and leading to disease outbreaks, such as cholera (especially in a pre-antibiotic era). The plaintiffs in the Slaughter-House Cases had long conducted their operations along the banks of the Mississippi River, upstream of the city, polluting the residents’ water supply. Pursuant to state law, the slaughter-house operations were moved downstream and placed under the exclusive control of a state-chartered corporation. The affected butchers, none of whom were African-American (let alone freed slaves), claimed that the restrictions violated their rights under the recently-enacted 13th and 14th Amendments.

By a 5 to 4 vote, the Court sensibly rejected these claims. There was no “involuntary servitude,” of course; in the pre-Lochner era, there was no substantive due process right to engage in economic activity; and the Court construed “equal protection” to limit only race discrimination. Unwilling to encroach upon the state’s police power without any clear textual guidance, the Court read the “privileges or immunities” clause narrowly to avoid becoming “a perpetual censor upon all legislation of the states.” Limiting “privileges or immunities” to the rights of U.S. citizenship effectively rendered the privileges or immunities clause meaningless, but the alternative—urged by Justice Stephen Field for the four dissenters—was to unleash indeterminate “natural and inalienable rights.”

Some scholars, such as Bork, Lino Graglia [2], Michael Stokes Paulsen [3], and Michigan Chief Justice Stephen Markman, support the majority’s ruling, while others quibble with the limitation of the privileges or immunities clause to federal rights. In Government by Judiciary (1977), Raoul Berger disputed the majority’s reasoning, even as he concluded that the 14th Amendment was intended only to validate the Civil Rights Act of 1866. Kurt Lash concludes that the 39th Congress intended to incorporate the first eight amendments of the Bill of Rights in the privileges or immunities clause—but not to open the Pandora’s Box of “unenumerated rights.”

There are as many scholarly positions regarding the Slaughter-House Cases [4] as there are theories about Amelia Earhart’s disappearance or who kidnapped the Lindbergh baby. Few scholars, however, aside from libertarian proponents of “judicial engagement,” embrace the radical position taken by the dissenters. Because the Bill of Rights have been incorporated under the due process clause, the historical “correctness” of the Slaughter-House Cases is effectively moot.

Accordingly, my position that the Slaughter-House Cases should be left alone is based on a combination of reasons: I agree with Bork, et al. that the majority was correct, or at least that the meaning of “privileges or immunities” is unclear enough to warrant a restrained interpretation; I strongly disagree with the notion of unenumerated rights (not because it will lead to mischief, but because it is mischief); and, at this point, the precedent is so old and well-established (even if not universally accepted) that, pursuant to stare decisis, it would undermine public confidence in the Court to overrule it. If that disqualifies me as a “new originalist,” so be it.

The original goal of originalism, it must be remembered, was to restore constitutional law to the task of interpreting the Constitution. As Bork famously remarked in 1982, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” [5] Hewing to the constitutional text necessarily grounds—or “constrains”—judges, which is the whole point of having a written constitution. It is a fallacy to assume that “constraint” is incompatible with originalism.

[1] Since we are acquaintances going back to my San Diego days, I would prefer to call him Mike, but in keeping with the conventions of this site I will refer to him as Rappaport.

[2] E.g., Lino Graglia, “Do We Have an Unwritten Constitution?—The Privileges or Immunities Clause of the Fourteenth Amendment,” 12 Harvard Journal of Law & Public Policy 83 (1989).

[3] Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 190-91 (2015).

[4] E.g., Philip Hamburger, “Privileges or Immunities,” 105 Northwestern University Law Review 61 (2015) (arguing that it was intended only to apply the “comity clause” rights in Art. IV to blacks).

[5] Robert Bork, “The Struggle Over the Role of the Court,” National Review (September 17, 1982).

Reader Discussion

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.

on March 25, 2019 at 11:43:40 am

"The public would justifiably question the moral authority of nine unelected judges whose edicts shifted constantly with the political composition of the Court."

I think that train left the station 70 years ago and more. Does anyone except John Roberts think the Supreme Court has any moral authority at all?

I've been looking for things in my state's old laws that might be called privileges and immunities created by the legislature. I found few in the old colonial laws. In the Bay Colony, I found:

"No man shall be beaten with above 40 stripes, nor shall any true gentleman, nor any man equall to a gentleman be punished with whipping, unles his crime be very shamefull, and his course of life vitious and profligate."

I also found laws that bestowed the privilege of trespassing on open meadows to cattle drovers while driving cattle to market and the privilege possessed by all inhabitants to fish on the great ponds and to fish and fowl between the high and low water marks along the coast.

These seem to be privilege that attache to the civil status of gentleman and citizen or resident.

In other laws, ministers of the gospel, gentlemen (again), deputies to the General Court and magistrates were exempted from being pressed into the militia or for public works. Other laws from time to time exempted ministers employed by established congregations and retired state civil servants from taxation.

These seems to be immunities.

For my money, things like these are what the privileges and immunity clause in the 14th Amendment is aimed at.

Finally, you are not an originalist if you would retain stare decisis in constitutional matters.

read full comment
Image of EK
EK
on March 25, 2019 at 12:36:24 pm

The SCOTUS has a higher public approval rating than Congress or the President. So just because you are cynical (perhaps for good reason), doesn’t mean the public has lost faith in the Court. They believe the Wizard of Oz is real, not the man “behind the curtain.” If the Court started willy-nilly overturning precedents every time the composition of the Court changed, the public would turn against the Court. Stare decisis can be massaged but not disregarded altogether, IMHO.

read full comment
Image of Mark Pulliam
Mark Pulliam
on March 25, 2019 at 13:38:41 pm

Speaking of the Necessary and Proper Clause and the varying interpretations, Michael Uhlmann, in a recent LLB forum essay argues that "Even if Lund’s more exacting judicial scrutiny had been adopted decades ago, would a bench dominated by the likes of Earl Warren, William Brennan, or Ruth Bader Ginsburg have paid any attention to it whatsoever?"

What does it matter which of the now ever proliferating variations of originalism is endorsed, employed or embedded in Judicial interpretation / construction, if the likes of Sotomayor, Ginsburg, Willie Boy Douglas, Breyer etc are to do the 'explicating."? What unifying / unified theory of construction may withstand the ever-more clever discernments made by the likes of the above mentioned jurists? What theory, indeed, what constitutional text is not without ambiguity, intended or otherwise, that will not soon become fodder for those dedicated to propelling forward the inexorable march of History?

Mark and I disagree re: P&I. Perhaps, my view is predicated upon a hope that we may "re-ground" ourselves in our history (small "h") and in some manner resuscitate the concept of distinct State Police Powers. Mark is RIGHTLY concerned that P&I, improperly understood, will result in further arrogation of powers to the Black Robes who will again demonstrate their predilection for *divining* all manner of newly discovered fundamental rights.
This is a valid concern and one we ought not to dismiss quite so casually as do some. Consider the mayhem that P&I, given a modern Progressive understanding of the term, would engender. All rights, all mere preferences would soon assume the status of "inalienable" rights guaranteed by our constituent law (COTUS).

Some may scoff at this supposition. Really, did anyone believe forty years ago that one could be compelled to share a restroom with a person of questionable gender, etc?

In advocating for the continued demise of P&I, Mark views stare decisis as a decisive tool in the jurists toolkit, originalist and non-originalist. To assert that supporting stare decisis per se is "NON-originalist" is both wrong and obscures / denies the use of the tool, stare decisis, in constraining the Progressive Jurists, the fantasists to my mind, and prevents them from unilaterally creating new law. Consider what P&I could become in the minds of Ginsburg, Sotomayor should they effectively resuscitate P&I and RE-shape in from its historical meaning and limitations into a modern version of P&I. Goodness, how long before every US citizen would be entitled to the Petroleum Benefits afforded by Alaska to its citizens, or every student would be entitled to free tuition if one state offered such a privilege? (Exaggerated, just a bit).

It strikes me that there is not "one Ring to rule them all", there is not one overarching theory of construction, etc that will cover any and all ambiguities / contingencies in COTUS. Such a Ring should in any case be cast into the Fires of Mordor given the havoc it would soon create.

What strikes me is that, as in the Legislative and the Executive, the strength of the Branch, its adherence to constitutional expectations is to be both found (or not) and assured (or not) be reference to the character and intelligence of those occupying the positions of delegated authority.

All the rest is an exercise in academic posturing.

read full comment
Image of gabe
gabe
on March 25, 2019 at 14:28:15 pm

"Goodness, how long before every US citizen would be entitled to the Petroleum Benefits afforded by Alaska to its citizens, or every student would be entitled to free tuition if one state offered such a privilege? "

In case you are mis-understanding me, if Alaska attempted to deprive a resident who was not a native born Alaskan an oil check, that would violate the P&I clause. But someone who was not a resident of Alaska would never be considered to be entitled to an oil check. The in-state tuition problem probably should be resolved in favor of an out of the state plaintiff.

My impression is that the reference to P&I in 14th A. should be considered boiler-plate picked up from the P&I clause in Art. IV, § 2.

In any event, privileges and immunities clearly suggests privileges and immunities created by state legislation. Mentioning privileges and immunities in the same breath as natural law or fundamental rights is simply bizarre.

read full comment
Image of EK
EK
on March 25, 2019 at 14:36:14 pm

Gabe, reading you comment again it struck me that those virtue signaling state ad local laws about set-asides and special treatment for specific groups or identities may be vulnerable to a P&I attack from those who are not the intended beneficiaries.

read full comment
Image of EK
EK
on March 25, 2019 at 16:49:11 pm

Actually, as of last I checked, alaska does 'deprive" those residents who do not meet certain alaska citizenship requirements.

As for me< i have no problem with "in-state tuition" benefits for State citizens, so long as all state citizens may have it. This is simply a positive right or privilege attendant upon state citizenship.

As for P&I vs fundamental rights, AGREED. It is perhaps the difference between "inalienable" and "alienable" alluded to in James Rogers recent essay.

Even Tocqueville (see Ancien Regime & Revolution) recognizes that a) P&I exists and that they are a benefit of positive law and c) may vary from "[E]state to [E]state.

read full comment
Image of gabe
gabe
on March 25, 2019 at 16:54:07 pm

EK:

Yep - AND that would be an unexpected benefit to a resuscitation of P&I (properly and historically understood).

But let me reiterate, I fully understand and sympathize with Pulliam's concerns on P&I and the opportunity for mischief this may afford the Black Robes.

Heck throw a modern doctrine of P&I in with Footnote Four (+) and give it to a bunch of Ginsburgs, Breyers, sotomayors, etc and watch what happens. The Progressive Church Triumphant!!!

read full comment
Image of gabe
gabe
on March 27, 2019 at 05:47:07 am

[…] Pulliam has graciously responded to my post on the Slaughterhouse Cases. As readers will remember, Pulliam argued that the […]

read full comment
Image of Mark Pulliam’s Defense of Slaughterhouse: A Response
Mark Pulliam’s Defense of Slaughterhouse: A Response
on March 27, 2019 at 12:37:58 pm

Of course, unenumerated rights are those having been determined according to the strictures of Common Law and its emphasis on custom and habit from time immemorial. As such, contract and property go back to Genesis, even though pervasive or universal practice beyond primitive dimension are not the norm until the modern era. Indeed, the reaction of modernism with its tilt toward statism and administration against the proliferation of property and contract are at the heart of a reticence to restore the healthy vitality of Constitutional process, which not only works through structure and right, but is sustained by them, the primary purpose of the Constitutions being the structural protection of the exercise of right. Privilege and immunity, as distinguished from right, relate to state action affording advantage in view of public necessity, which, despite their particularity, demand an equal protection of their own. By dispensing with privilege and immunity, right has been correspondingly diluted to a creation of the state, which accords with the 19th Century German ideology infecting our polity that the state precedes the Constitution in the creation of right, compounding the wrong of community preceding the individual in human relations. Time to restore our jurisprudence of 'liberty', corresponding to the 'liberty' of our Common Law, and there to proper Constitutional separations to enable the exercise of right.

read full comment
Image of gdp
gdp
on April 08, 2019 at 22:57:16 pm

[…] Pernicious Notion of ‘Unenumerated Rights,’” by Mark Pulliam“The Many Flavors of ‘Originalism,'” by Mark […]

read full comment
Image of Ep. 1380 Don't Get Snookered by Phony Constitutional Originalists | Tom Woods
Ep. 1380 Don't Get Snookered by Phony Constitutional Originalists | Tom Woods
on April 09, 2019 at 06:02:34 am

[…] but increasingly resembling libertarians who favor an activist role for the judiciary.  I responded to Mike Rappaport in this space (“The Many Flavors of Originalism”), which triggered replies […]

read full comment
Image of Still Searching for the Judicial “Holy Grail”
Still Searching for the Judicial “Holy Grail”

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.