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Which Justices Are Originalists?

In a discussion on constitutional theory at Middlebury College, my fellow panelist argued that there were at most two originalists on the Court—Clarence Thomas and Neil Gorsuch. His claim raises the interesting question of how to classify the justices. I think they fall into three camps, two of which have claims to be originalist.

The easiest justice to classify as originalist is Justice Thomas. While it is important to note that he will not go on a spring cleaning of constitutional law on his own, he follows the original meaning even against long standing precedent, if the parties ask for that precedent to be overruled. Gorsuch may join him in this approach, but it too early to tell.

But Chief Justice John Roberts and Samuel Alito also have claims to be originalists in this sense: they regularly follow original meaning as the exclusive guide to interpretation in cases they consider to be genuinely those of first impression. They joined Justice Scalia’s famous originalist opinion in Heller. They joined his wholly originalist opinion in Noel Canning on the Recess Appointments Clause. In NFIB v. Sebelius, the Chief Justice wrote a wholly originalist analysis to conclude that the Commerce Clause encompassed regulation of activity, but not mandates to undertake it.

It is true that these justices declined to join Justice Thomas’s effort to revive the Privileges or Immunities Clause in McDonald v. Chicago—the case that applied the Second Amendment to the states. But neither did Justice Antonin Scalia—a justice thought to be a quintessential originalist. Indeed, their difference with Justice Scalia may be largely one of degree—they are less willing to overrule precedent than he was, although, as I have noted before, one important criticism of the late Justice is that he did not have a consistent theory of when to overrule non-originalist precedent.

And it is not only that they are originalists in cases of first impression. They often try to move doctrine in an originalist direction, as when Chief Justice Roberts wrote an opinion invalidating a law that doubly insulated subordinated officials from Presidential control, even though precedent had previously permitted substantial insulation. Thus, the original meaning of the Constitution (which gives the President the authority to remove executive officials) has more generative force for them than precedent does, at least when precedent is not so thick on the ground as to cover most of the relevant constitutional issue space.

They are thus quite different from the other justices on the Court, who may not be originalists even in cases of first impression. If originalists want to make Chief Justice Roberts and Justice Alito (and perhaps Justice Brett Kavanaugh) move in the direction of Thomas and Gorsuch, they need to offer a principled theory of precedent that allows such justices to overrule more non-orginalist precedent without creating what the Chief Justice and Justice Alito would perceive to be too much uncertainty in the law or the imposition of large social costs. Mike Rappaport and I have offered such rules. But we acknowledge that there is much more work to be done in this area. It is the area of originalist theory that would do the most to transform the Court’s practice.

Reader Discussion

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on November 09, 2018 at 15:28:23 pm

"It is true that these justices declined to join Justice Thomas’s effort to revive the Privileges or Immunities Clause in McDonald v. Chicago—the case that applied the Second Amendment to the states. "

Justice Thomas was correct in refusing to rely on the due process clause to apply the 2nd Amendment to the States. Unfortunately, he was wrong in his interpretation of the Privileges or Immunities clause in doing so (see Philip Hamburger et al). Justice Scalia relied on precedent to apply the 2nd Amendment. Although, he is on record as saying the 2nd Amendment is no restriction on the States and that applying the Bill of Rights to the States was the biggest Stretch the Court ever made.

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Ann Cotter
on November 09, 2018 at 15:46:03 pm

"It is true that these justices declined to join Justice Thomas’s effort to revive the Privileges or Immunities Clause in McDonald v. Chicago—the case that applied the Second Amendment to the states."

Justice Thomas was correct in refusing to use the due process clause in applying the 2nd Amendment to the States. However, he was wrong to rely on the Privileges or Immunity clause to do so (See Phillip Hamburger et al). Justice Scalia relied on precedent to apply it to the States, even though he is on record saying that the 2nd Amendment is no restriction on the States and incorporating the Bill of Rights into the 14th Amendment was the biggest stretch the Court ever made.

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JWC
on November 09, 2018 at 21:16:44 pm

Please stop pretending to be an originalist. This is bullshit.

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John Ashman
on November 10, 2018 at 00:26:07 am

We already have at least one template for knowing the meaning and then ignoring it. No need for more

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John Ashman
on November 10, 2018 at 09:57:14 am

I'm not sure if "Phillip Hamburger" et al. have "clearly" proven anything related to the Privileges or Immunities Clause. I think the Clause is what Justice Thomas and rest of the law professoriate claim it to be -- *the source* of substantive rights contained in the 14th Amendment.

It was intended to be much more than a mere "ink blot."

However, what I do seriously wonder about is whether the framers of the 14th understood COURTS to be the mechanism for giving the specific rights that derive from the P or I substance.

I think of someone like Michael McConnell who is one of the most notable articulators of the law professoriate position on the P or I Clause. He doesn't (as far as I can tell) endorse the position of Walter Berns et al. Which is that it's Congress' job to activate the P or I Clause and give those substantive rights substance. But the research McConnell does on Brown seems to inadvertently give support to that position.

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Jonathan Rowe
on November 10, 2018 at 12:26:57 pm

"...understood COURTS to be the mechanism for giving the specific rights that derive from the P or I substance"

Following Kurt Lash, it may be that it is not only " Congress’ job to activate the P or I Clause and give those substantive rights substance" but also the Legislatures of the several States.

In any event, all talk of "who" is originalist is beside the point. what matters is whether or not the Jurist will do his / her *duty* to interpret the law as written and not infuse that law with their own policy preferences.

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gabe
on November 10, 2018 at 19:43:56 pm

Yes Kurt Lash is one of the best scholars on the P or I Clause. However if the states had been doing what they were supposed to do, there would be no need for a 14th Amendment.

I love what the 14th Amendment standards for, but both the text of it and the record are a bit messy.

I'll have to reread McConnell's work on Brown to get the quotation I'm looking for; but this summary by Randy Barnett (and along with Akhil Amar I think we've mentioned four of the greatest modern scholars of the Privileges or Immunities Cluase of the 14th Amendment) works:

"Fact check: Misleading. As Michael McConnell showed in the 1990s (see here and here), nearly everyone in Congress who supported the 14th Amendment thought it barred de jure school segregation–though under the Privileges or Immunities Clause, not the Equal Protection Clause–and it was only super-majority voting rules in both the House and Senate that prevented them from prohibiting it. As a constitutional scholar, Professor Ledewitz must be aware of this. …"

This is both good news and bad news for those seeking to justify Brown on originalist grounds. The good news is the framers of the 14th thought the amendment empowered Congress to outlaw segregation. That's also -- it seems to me at least -- part of the bad news. Segregation was and remained legal because Congress failed to prohibit it, even though the new amendment constitutionally empowered Congress to take action.

I don't see what Barnett reported from McConnell as demonstrating that the framers of the 14th intended to make segregation unconstitutional without congressional action.

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Jonathan Rowe
on November 12, 2018 at 17:12:36 pm

Since it is true that our Founding Fathers affirmed Genesis by recognizing God to Be, The Most Holy and Undivided Blessed Trinity (Treaty of Paris), and thus The Endower of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, any judge who denies that a son or daughter of a human person can only be a human person, and desires to remove the necessary requirement for a marriage to be valid, which is the ability and desire to exist in relationship as husband and wife, certainly cannot be an originalist.

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Nancy
on February 27, 2020 at 05:56:04 am

[…] The unitary executive will become the background rule with islands of historical exceptions. As I have noted before, this approach is the characteristic way that John Roberts deploys originalism—not to overturn […]

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Independent Agencies Brought to Heel?

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.