The State of Originalism

The Center for the Study of Constitutional Originalism at the University of San Diego has been holding an annual conference on originalism for the last 11 years. Each year at the beginning of the conference, I discuss what I regard as the most important events concerning originalism in the past year. This year, for the first time in many years, the most significant event has not involved a Supreme Court vacancy or appointment, such as Justice Scalia’s passing, Justice Gorsuch’s nomination and appointment, or Justice Kavanaugh’s appointment.

In fact, if any appointments in the past year have been significant events for originalism, it has been the large number of circuit court judges that President Trump has appointed. Among the nearly one-third of all circuit judges that Trump has appointed during his presidency, many of them are originalists.

As for the Supreme Court, with two or three strong originalists on the Court, one might have expected that it would have decided a significant originalist case—another DC v. Heller, if you will. But that has not happened. In Gamble v. United States, the Court did consider whether the original meaning of the Double Jeopardy Clause allows for the dual sovereignty doctrine, but only one of the originalist justices believed the original-meaning evidence sufficiently supported eliminating that doctrine.

The closest case to such an originalist blockbuster was Gundy v. United States, where Justice Gorsuch’s dissent (joined by two other justices) made an originalist case for a strong nondelegation doctrine. But Gorsuch’s decision was only a dissent, even though five members of the court have either signed on to the opinion or expressed sympathy with it.

Thus, Gundy was not an originalist triumph, but instead a possible sign of originalist decisions to come. To my mind, the most significant originalist developments in the past year fall into this category: indications of a vigorous originalist future.

In addition to Gundy and the new circuit court judges, I want to mention three significant developments that suggest a potent originalist future.

First, there is the emergence of Justice Gorsuch as a strong voice of libertarian originalism. Over the past few years, Justice Gorsuch has written dissenting and concurring opinions that see the original meaning as providing stronger protections for individual rights and stronger limits on government than the other members of the Court generally acknowledge.

Examples include his view that the Fourth Amendment applies to cell phone location data, that patent rights cannot be revoked without an Article III court’s review, that the Double Jeopardy Clause does not have a dual sovereignty exception, and that the Due Process Clause places limits on vague civil and criminal laws. Justice Gorsuch has defended his views in a recent book entitled A Republic, If You Can Keep It.

In saying that Gorsuch is a libertarian originalist, I don’t mean to suggest that he reads his political views into the Constitution. Instead, I mean that he understands the Constitution’s original meaning to provide strong protection for individual rights and significant restrictions on government.         

Originalists will not paper over their disagreements for a false unity, but instead will follow the originalist evidence wherever it leads them.

Second, a significant debate has emerged between the two most committed originalists on the Court—Justices Thomas and Gorsuch. While Justices Thomas and Scalia occasionally disagreed about the original meaning, the debates between Thomas and Gorsuch seem far more frequent.

When Gorusch was first appointed to the Court, he and Justice Thomas voted identically for quite a while. It almost seemed inappropriate. But not anymore. In case after case—in Carpenter v. United States, in Gamble, in Sessions v. Dimaya, in Oil States Energy Services v. Greene’s Energy Group—Gorsuch has taken an individual-rights view while Justice Thomas has taken the government view.

While this disagreement might seem like a problem for originalism, I don’t believe it is. Although disagreements about the original meaning have some costs, they also have benefits. Disagreeing in an open judicial debate about the original meaning, paradoxically, lends credibility to originalism.

It suggests that originalists will not paper over their disagreements for a false unity, but instead will follow the originalist evidence wherever it leads them. It also suggests that originalists recognize that the evidence can sometimes be conflicting, but that they should still follow what they see to be the stronger view of the original meaning. In the long run, such disagreements lead to a stronger originalism, as weaker arguments eventually lose out to stronger ones and the justices publicly affirm their commitment to originalism.

The third development is the ongoing attempt to rethink the relationship between originalism and precedent. If one defined precedent broadly and followed it consistently, there might be little room for originalism in constitutional law. It is thus understandable that, in the Supreme Court and in the circuit courts, originalists have been thinking about how to develop a significant place for originalism within the sea of nonoriginalist precedents. They are doing this by finding ways to limit the scope of nonoriginalist precedents.

At the Supreme Court, Justices Thomas and Gorsuch stated in Garza v. Idaho: if there is “little available evidence suggest[ing] that” certain precedents are “correct as an original matter, the Court should tread carefully before extending our precedents in this area.”

This approach is even being employed at the circuit court level, where circuit court judges have begun to use then-Judge Kavanaugh’s language from his DC Circuit Free Enterprise dissent. There, Kavanaugh argued that circuit courts “should resolve questions about the scope of [Supreme Court] precedents in light of and in the direction of the constitutional text and constitutional history.” Similar approaches have occurred in several cases, including the opinion by Fifth Circuit Judge Don Willet in a case about the removability of the Administrator of the Federal Housing Finance Agency.

Most recently, the approach was adopted by newly-appointed Ninth Circuit Judge Patrick Bumatay. Judge Bumatay dissented from the denial of a rehearing en banc in part on the grounds that the scope of nonoriginalist Supreme Court precedent concerning the Eighth Amendment should be considered in light of the original meaning.

The large number of originalist circuit court judges makes this rethinking of the scope of precedent even more significant. Finding a place for originalism in the lower courts may allow circuit judges to identify originalist cases, permitting those cases to be teed up for the originalists on the Supreme Court.

Finally, I should not leave this subject without mentioning the use of originalism during the Trump impeachment. As with the impeachment of President Clinton two decades ago, both sides of the Trump impeachment used originalist arguments. But while the originalist arguments during the Clinton impeachment might have been the most important originalist event at that time, I don’t think those used during the Trump impeachment are the most important originalist event today. Other originalist developments are more important, a sign that originalism has become a much bigger part of our legal world.

Reader Discussion

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on April 03, 2020 at 07:51:59 am

Optimism is the engine of fortitude.
Thus, rather than seeing the Court's decisions this past year as a plate of cold millet I will accept Professor Rappaport's notion that they are a bowl of warm rice and rightly understood constitute "... a sign that originalism has become a much bigger part of our legal world."

However, overall, I do think he's right, that for originalism "better days are shining through" (in the lyrics of Springsteen.)

But that is so mainly, if not solely, because Donald Trump is president and is likely to remain president through 2024. Change that and originalism faces the prospect of a Democrat (Biden or Cuomo) replacing Ginsburg and Breyer for certain and Thomas most likely, and then it all goes to Hell.

BTW: Rappaport calls the Democrat prosecution of Trump's impeachment a display of originalism. HaHa!
That could be so only if rhetorically mouthing disjointed sound bites from Madison and Hamilton can be considered an intellectual defense of originalism.
Yet, during the impeachment "trial" (sic) Schiff sounded merely like a less mentally-confused Pelosi trying at once to explain the Founding, recall which Founder said what about the president's duty and why he said it, while keeping her dentures in place. Or, perhaps, like a less bewildered, less verbally-bumbling Biden struggling to recite the Declaration's "All men are created equal" language: "You know, the thing!"

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on April 03, 2020 at 08:30:30 am

Judge Gorsuch has been lecturing on Thomism. As the lectures are closed and no microphones are allowed, is the Judge using Thomism as his guide line to Originalism? For years the University of Chicago, a Baptist School, has promoted Thomism through various religious groups to its Jewish Students without a significant effect..

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on April 03, 2020 at 12:22:32 pm

And yet, Gorsuch's *libertarian" originalism may, in fact, be leading him away from a "more" originalist understanding of certain rights and / or powers as suggested (indirectly, of course) by Orrin Kerr in the following"
Could it be that the Justice's libertarian sense could cause him to fail to see the contextual nature of "search" as did the Great Chief John Marshall?

Just asking kiddies?
BTW: Hat tip to Rappaport's Originalism Blog which first highlighted this paper by Kerr.

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on April 08, 2020 at 16:42:28 pm

I appreciate this review of a historic year and earlier times.
Re-evaluation of American precedents is much needed, and like any other the reform must be bold.
Not only should the talents of originalism be applied; the scope should be broadened in two ways that are called for in this nation’s stated disciplines and purpose: unity, justice, tranquility, defense, and welfare to encourage living citizens to take advantage of responsible human independence.
First. The controversial U.S. Preamble proposes psychological separation from both 1) global reform for the 13 free and independent states, established with England in the 1783 Treaty of Paris and 2) legal termination of the 1774 Confederation of States, formerly eastern-seaboard, British-American colonies. American precedents prior to September 17, 1787 ought to be reconsidered for conformity to the U.S. Preamble’s proposition. That is, on September 17, 1787, the world’s first proposition for public discipline so as to hold a republic accountable to the law was recorded and is yet to be established.
Even the preamble’s word “liberty” is questionable in appreciation the integrity that is proposed therein. Liberty from an oppressor was key to the 1689 English Revolution, the 1774 American Revolution, and the 1789 French Revolution, all representing partial “equality”, solidarity, and license to shed blood. Threats and realities of domestic bloodletting in Shays’ rebellion urgently motivated formation of a nation of people. The passions of the declaration of independence from England became an urgent need for discipline of for and by the people of the U.S who would choose the U.S. Preamble’s proposition. Instead of Lockean self-governance and the common good, the preamble proposes public discipline to encourage responsible independence.
Second, the U.S. may appreciate the framers for setting aside the so-called “founders’” passions of the Declaration of Independence, especially the American-deists’ “Nature’s God” to compete with England’s reformed-Catholic God and “equality” for humans, each one of whom is unique. The U.S. Preamble reserves a prudent humility toward whatever-God-is by tacitly assigning spiritual considerations to the individual citizen. The fellow citizen who insists that whatever-God-is answers to his or her personal God is a dissident to the U.S. Preamble’s proposition; that is, he or she is not a member of We the People of the United States. While expressing spiritual hopes is innocent, the individual who prays to instruct whatever-God-is may discover that arrogance invites woe.
We know this from prayers during the Civil War. Neither the U.S. Constitution’s articles nor its preamble anticipated anything but the abolition of slavery by the next generation or whenever economic and political viability was evident. Abolition of slavery was an urgent topic, and Fredrick Douglass expressed confidence in the U.S. Preamble and its articles during 1852s July 4 celebration in Rochester, NY.
Benjamin Franklin and Thomas Paine were 1775 members of the Pennsylvania Society for Promoting the Abolition of Slavery. Massachusetts abolitionists founded 1856s Lawrence, Kansas to influence a free state. The reaction of slave-state “liberty” became Bleeding Kansas. R. E. Lee, in a letter to his wife claimed abolitionists were evil in defying his Christian God’s plan to redeem blacks. Mimicking Lee’s Christianity, the Confederate States of America, in their declaration of session, claimed politics in the north was unresolvable because “of more erroneous religious belief”. If Lee had been of We the People of the United States, his letter might have announced to his wife that they were going to sell everything and move to a non-slave state of her choice. Almost no one in the U.S. regards the Civil War as a white on white Christian battle, and European thinkers can’t imagine what the documents teach.
As a human being Lee had the individual power, the individual energy, and the individual authority (HIPEA) to hold Christianity accountable rather than lead his family and fellow citizens into misery and loss. With his un-consignable HIPEA, he could have interpreted the U.S. Preamble to guide his civic life (including vows to family) while privately pursuing everlasting life in his afterdeath.
Every citizen ought to establish his or her interpretation of the U.S. Preamble so as to accept their self-interests therein. The U.S. Preamble proposes individual happiness with civic integrity. By accepting the U.S. Preamble’s proposition, citizens may know they are acting for equity under statutory justice for themselves and their descendants.
I share my interpretation hoping someone will improve it: We the People of the United States consider, communicate, collaborate, and connect to practice 5 public disciplines: integrity, justice, peace, strength, and prosperity so as to encourage both living citizens and future fellow citizens to take advantage of responsible human independence.
The U.S. needs to reform the First Amendment’s religion clauses so as to encourage integrity rather than attempt to constrain whatever-God-is to God. Never again should we witness the U.S. Senate members taking an oath to uphold the U.S. Constitution for any reason beyond its existence. Never again should their sessions be opened with two prayers: one by a minister and the other in a coercive pledge. Instead, sessions should be opened with unison recitation of the U.S. Preamble verbatim with each senator mentally committed to his or her interpretation. These reforms are the tip of an iceberg, and they should get underway in 2020 with your acceleration.
I cannot imagine the reforms to 1) encourage citizens to accept America’s proposition for civic integrity stated in the U.S. Preamble and 2) to individually separate church from state by relying on the-objective-truth if not the-literal-truth being accelerated by any group faster than the writers in this forum, especially those who would take originalism from physics rather than precedence. Social democrats cannot brook precedence, but they pay attention when their actions against physics or its progeny cause misery and loss.

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Phillip Beaver

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.