The Volokh Conspiracy

In a recent Wall Street Journal article, based on his forthcoming book on the same subject, Supreme Court Justice Samuel Alito offers his take on constitutional originalism. But in so doing, he raises more questions than compelling answers. Nonetheless, he makes a number of interesting points, about how to do originalism generally, and about specific constitutional issues. Here, I note a few of particular interest.

There is a longstanding debate among originalists as to whether the proper original meaning courts should apply is that understood by ordinary people at the time of ratification, that understood by lawyers and other well-informed experts, or that understood by hypothetical "reasonable" readers (many advocates of the latter approach assume the "reasonable" reader is highly knowledgeable about legal doctrine and methodology). I call this the divide between "elitist" and "populist" versions of originalism. Alito clearly comes down on the populist side:

When I think about the original public meaning of constitutional provisions, I sometimes envision a scene at a colonial-era tavern. After dinner, travelers and area residents gather around the fireplace and read newspapers that discuss the Bill of Rights. They read the text of the First Amendment and see that it prohibits Congress from making any law that impairs the free exercise of religion. What would they make of that language?

How likely is it that these men had read John Locke's writing on church-state issues? Even if they had some rough awareness of his ideas, how likely is it that they would assume that Congress had incorporated those ideas in the First Amendment? Originalism looks for the original public meaning, not the meaning that the most well-read and philosophically minded men of the day might have adduced.

In taking this position Alito seems to ignore the potential downsides of the populist approach. Among other things, ordinary people may be ignorant about a variety of constitutional issues, and may have particular difficulty interpreting technical legal terms embedded in the Constitution, such as "writ of habeas corpus" or "bill of attainder." Populist approaches to original meaning are also less likely than elitist ones to offer insight on how to deal with issues unanticipated at the time of enactment, such as new technologies, and new information.

Elitist approaches have their own downsides, of course. But those who advocate one or the other should grapple with these issues. I go into the relevant tradeoffs in more detail in my 2012 law review article "Originalism and Political Ignorance" and also in my earlier blog post on this topic. My own view is that it may be best to adopt a hybrid approach, balancing elite and popular understandings. Elite understandings are preferable when it comes to terms that ordinary people are likely to recognize as technical legal phrases that require a lawyer or other expert to understand. But the issue is a difficult one, and originalists need to consider it more. Maybe Alito's book will stimulate new analysis of this crucial issue.

Alito's analysis also elides the distinction, emphasized by many originalists, between original public and original "expected applications." The former is the linguistic meaning of the words, and the latter how they are expected to apply to particular issues. Expected applications depend in part on factual understandings, distinct from the meaning of the words. As facts or our understanding of them change, the same words may have different implications for particular cases, including some that were not and could not be expected at the time of drafting and ratification.

For example, Alito assumes it is obvious that originalism rejects a constitutional right to same-sex marriage, because almost no one expected such a thing back when the Fourteenth Amendment was ratified in 1868. Thus, he doubles down on his view that Obergfell v. Hodges, the 2015 ruling striking down laws banning same-sex marriage, is wrong. But, as discussed in the amicus brief I filed in that case (together with Andrew Koppelman), there is a strong originalist case for Obergefell once you combine the original linguistic understanding of the words with new knowledge about the nature of same-sex relationships. This is particularly true if you accept (as many originalists now do) that the the Fourteenth Amendment bans most, if not all, forms of sex discrimination.

On another Fourteenth Amendment issue, Alito also reiterates his longstanding view that the Due Process Clause, not the Privileges or Immunities Clause, is the proper source of various "unenumerated" rights, including "incorporation" of the Bill of Rights against state governments:

If we simply read the text of the 14th Amendment, the Due Process Clause seems an unlikely home for substantive rights. Another provision, the Privileges or Immunities Clause, declares that no state "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." But in the Slaughter- House Cases (1873), the Supreme Court reduced that clause to minor importance.

In McDonald [v. City of Chicago], prominent scholars filed a brief urging the court to jettison Due Process incorporation and revive Privileges or Immunities. During oral arguments, the attorney representing Otis McDonald latched onto this argument. He didn't get far. Justice Scalia interrupted him and said that while the Privileges or Immunities argument was "the darling of the professoriate," it was contrary to a century of case law. Scalia recommended that the attorney stick to those precedents.

Why did Scalia, a former law professor, say that? Because accepting the Privileges or Immunities argument would have opened a can of worms. Libertarians, social conservatives, progressives, socialists and others could all make a pitch for whatever rights they favored. 

On this issue, Alito differs with fellow conservative originalists Clarence Thomas and Neil Gorsuch, both of whom advocate reviving Privileges or Immunities. It is also ironic that Alito  rejects Privileges or Immunities revival for fear of opening up a "can of worms" that enables judges with different ideologies to "make a pitch for whatever rights they favored." After all, this is exactly the same argument Alito and other conservatives have long deployed against "substantive" due process. It's not clear why Privileges or Immunities Clause would be any worse. If anything, the fact that there's lots of original meaning evidence about what rights qualify as "privileges or immunities" might make it less subject to judicial manipulation than substantive due process is. While Alito is wary of what he calls "academic originalism," the extensive academic work on the meaning of Privileges or Immunities could help guide judicial discretion here. And, again, at the very least, it might be less subjective than the Due Process Clause approach.

Alito also emphasizes "the necessity, except in unusual circumstances, to heed precedent, since overturning it can have unsettling consequences." Despite his distaste for Obergefell, in a recent CBS interview he indicates that it likely should not be overturned because "a great deal had changed in the country as a result of Obergefell [and] [t]here was a lot of reliance in various ways on the decision in Obergefell." Alito is referring here to the hundreds of thousands of same-sex couples who have gotten married and started families in reliance on the Supreme Court's ruling.

Skeptics will note that Alito has in fact voted to overturn a number of longstanding precedents, most notably in the Dobbs case, overturning Roe v. Wade (1973), which had established a constitutional right to abortion. Alito's argument that Roe did not engender significant reliance interests strikes me as unpersuasive. Many women likely did rely on the availability of abortion as way to escape an unwanted or medically dangerous pregnancy. That doesn't necessarily prove Dobbs is wrong. But it does mean that defenders of that decision and other reversals of longstanding precedent need a better theory of how to weigh reliance interests against other considerations.

In fairness, Alito is far from alone among Supreme Court justices in failing to develop a compelling and coherent answer to this question. Other justices - both liberal and cosnervatives - have had trouble with this, as well. I have previously argued  that "Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm" - a point I believe applies to jurists across the political spectrum. Even significant reliance interests might be overcome in a situation where the maintenance of a wrong precedent itself causes grave harm. Jurists of different stripes are willing to reverse precedents that are "egregiously wrong and deeply damaging," as Alito put it in Dobbs. The big disagreement is over which cases fall into that category.

That is one reason why Brown v. Board of Education and later decisions striking down segregation laws were justified, despite the fact that they narrowed or overturned longstanding precedents that many state and local governments had relied on heavily. Segregation laws caused such great harm, that even substantial reliance interests had to be subordinated to the need to end it. Similarly, if you believe - as many pro-lifers do - that abortion is the moral equivalent of murder, Dobbs might be justifiable even if Roe did create substantial reliance interests. But notice that this approach to reliance interests requires courts to engage in a balancing of interests that many might argue is not within judicial competence.

There is more to be said about Alito's Wall Street Journal article, and CBS interview. And, I expect, many of these issues are covered in greater detail in his book. But, for now, I will stop here. I may have more to say after I have had a chance to read the book.