Another oblivious critique of Neil Gorsuch and Originalism

In my previous post Out of touch law professor criticizes Judge Gorsuch and "originalism," I characterized the argument by Richard O. Lempert, the Eric Stein Distinguished University Professor of Law and Sociology, emeritus, University of Michigan, as "ignorant" because it was "apparently unaware of-and uninformed by-the past 25 years or more of originalist theory, methodology and practice." Now in the National Law Journal (free registration required) comes a new and similarly flawed critique of Judge Gorsuch by David Rudenstine, a professor of law at Benjamin N. Cardozo School of Law at Yeshiva University (and its former Dean), which is entitled Gorsuch's Adherence to Originalism Should Keep Him From SCOTUS. I am sad to say that this piece, like Professor Lempert's, presents a highly distorted description of originalism, once again attacking a straw man. Let's see what Professor Rudenstine has to offer (with my additions in bold):

Many oppose the nomination of Neil Gorsuch to the Supreme Court because, as one Washington Post headline trumpeted, he favors "big business, big donors and big bosses." While I agree that the values Judge Gorsuch supports or rejects are cause for deep concern, I want to offer a different reason for opposing Gorsuch's nomination.

Oops, even before we get to originalism, we are off to a bad start. Professor Rudenstine says he shares the concerns about "the values Judge Gorsuch supports or rejects," but here is the oath he took as a federal judge: "I, Neil Gorsuch, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God." So what matters is not whether Judge Gorsuch has ever ruled in favor of "big business, big donors and big bosses" or (as the oath specifies) "the rich" but whether he is biased in favor of these groups. And to answer that question requires an analysis of the merits of the legal arguments presented by the parties before him. About this Professor Rudenstine offers us nothing, and I strongly suspect he has not studied the arguments and facts of the cases decided by Judge Gorsuch to reach an expert opinion about his bias or lack thereof. And yet he published his agreement with the "many" who hold such views. (For links to detailed analyses by Ed Whelan of the very few cases on which this charge is based, see here.)

On the other hand, if Professor Rudenstine judges judges by who they rule for, rather than the merits of the legal arguments presented to them by the parties-whether poor or rich-then he favors federal judges who violate rather than adhere to their oaths. But, without knowing him personally, I would be loath to attribute such a position to a fellow law professor, so let me now turn to his critique of originalism.

I would vote against any nominee to the Supreme Court who stated that he or she adhered to originalism in construing the U.S. Constitution. Given that Gorsuch's judicial writings are widely understood as presenting him as an originalist, that would be my main objection.

Here's why.

At its heart, originalism claims to eliminate improper judicial law-making in construing the Constitution. It does that by promising that historical materials pertaining to the Constitution's adoption contain definitive answers to contemporary constitutional questions.

That attractive idea falls apart upon analysis.

The theory requires that we determine whose understanding of the original Constitution is definitive. But originalists disagree on this critical point.

Some concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution's meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism's promise.

While it is true that some originalists have favored framers intent or ratifiers understanding, most today seek the original public meaning of the text at the time it was enacted. Regardless, for this criticism to be telling, Professor Rudenstine needs to identify circumstances where these different stances would lead to different results or outcomes. After all, the meaning of the words in the text to its framers, to its ratifiers, or to the general public, were very likely to be identical, since the meaning of the English language they employed was the same for all. Indeed, even originalists who ultimately seek the original public meaning of the text consider the meaning attributed to the text by its framers and ratifiers as probative evidence of original public meaning.

To take two examples where I am familiar with the available evidence, the word "commerce" in the Commerce Clause and "arms" in the Second Amendment meant the same thing to all three groups. So the practical constraining effect of originalism is preserved unless these differing audiences can be shown to have had differing understandings of the text, which is quite unlikely. At any rate, Professor Rudenstine offers no such examples of differential meanings.

Although this is not what he wrote, Professor Rudenstine may have in mind the difference between the overwhelming proportion of originalists who seek the original public meaning of the text, and the small minority who today seek the original framers intent. Even here, the results of these inquiries are likely to be identical. But where they differ-as, for example, Justice Scalia's conclusions about the original public meaning of the Second Amendment in Heller differed from Justice Stevens' analysis of original framers intent-we can criticize a judge for applying a version of originalism we consider to be incorrect, just as we can criticize the judge for employing any other incorrect approach to constitutional interpretation.

As with Professor Lempert's critique, this objection by Professor Rudenstine betrays the fact that he does not fully understand the position he has chosen to attack. He continues:

But assuming originalists did agree on this matter, this interpretative methodology is fundamentally flawed for additional reasons.

Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice "law office history," which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.

This is fundamentally inaccurate. Originalism does not require "judges to to be historians." It merely requires judges to identify the meaning-or communicative content-of the text of the Constitution. More specifically, it requires them to identify where that public meaning when enacted differed from the meaning these words have today. For example, although the Supreme Court has never expanded the actual meaning of the word "commerce" in the Commerce Clause (instead, it expanded the powers of Congress by a capacious construction of the Necessary and Proper Clause), some today may identify the word "commerce" with "economic activity," though its original meaning was narrower than that. At the time of the Founding, and at least into the mid-Twentieth Century, the word "commerce" referred to an activity distinct from the economic activities of agriculture, husbandry, or manufacturing. While the latter words referred to different manners of producing things, the former referred to the trade and transportation of things that are so produced.

You don't need a PhD. in history to discover this. But regardless of whether you do, the scarcity of judicial time and expertise recommends a division of labor in which academics investigate and debate the evidence of original meaning, and judges rely upon the conclusions that emerge from this scholarly peer reviewing process. Moreover, the Constitution is a finite document. As the meaning of each term is settled, judges need only learn the conclusions of this research. Once correctly identified and incorporated into judicial decisions, judges are free to move on to other matters.

But at any rate, neither judges nor scholars ought to employ "law office history," if what is meant by this is "cherry-picking" evidence to fit the conclusions they may wish to reach. An argument against bad originalism is not an argument against originalism.

By the same token, professional historians ought not employ "history office law" that misunderstands the legal doctrines and concepts of the period they are studying. Historians today are largely preoccupied, not with linguistic usage, but with the motives and purposes of historical figures, as well as the effects of their actions. This is why many historians who engage in constitutional analysis insist on reducing "meaning" to the intentions of the framers, by which which they mean what the framers hoped to accomplish rather than what they said. As Larry Solum has explained, they view intellectual history as constitutional theory. In other words, many historians today adhere to what Solum has called proto-originalism based on original framers intent-the position that was tellingly criticized by such nonoriginalists as Paul Brest in the 1980s-the vision of originalism that Professor Rudenstine rejects in this essay!

Originalism assumes that historical evidence yields definitive and comprehensive answers to contemporary constitutional questions. The fallacies here are evident. History is complex and historical inquiries into important and open-ended questions are likely to yield a variety of plausible answers to the same question.

Thus, the premise of originalism is naive, unrealistic and unsupportable.

No, public meaning originalism assumes that language had a meaning-or communicated content-when it was adopted, just as the English language that Professor Rudenstine employed in his essay has a public meaning today. How else are we to understand what he is intending to say when he refers to "diaries, letters, memoranda and newspapers"? He certainly would be unwise to adopt his own private language in which these words refer to, say, methods of public conveyance. That would be irrational on his part, as it would have been irrational for the framers of the Constitution and its amendments to use words, the public meaning of which failed to convey their intentions. (An unusual exception to this were the various euphemisms the framers of the original Constitution employed to refer to slavery. But because the publicly-available context of these euphemistic phrases would have conveyed to the general public that these clauses nevertheless referred to slavery, that was their original meaning.)

Moreover, what would late 18th century figures have to say about the constitutional authority of a president to use atomic weapons in a peremptory strike against a foreign power when the Congress has not declared war and with which the United States was not then involved in a military conflict?

Are we really looking for "their" answers to such questions, or are we wondering what they would have thought about the Constitution's meaning if they lived in our time and knew what we now know? This is magical and it makes originalism a farce.

I can assure Professor Rudenstine that originalists are not looking for these things, which "living originalist" Jack Balkin helpfully labeled "original expected applications." Way back in the 1980s, I disparagingly characterized the position Professor Rudenstine is describing as that of "channeling the framers." There is a rich literature about the difference between identifying the communicated content of the text and applying that meaning to particular facts and circumstances-which sometimes goes under the rubric of "interpretation" vs. "construction." Originalist and nonoriginalist scholars who are familiar with originalism know to what I am referring. Professor Rudenstine would be wise to avail himself of this literature before opining further on this subject.

Originalism also implodes over rights not mentioned in the Constitution - so-called un-enumerated rights - but which are nonetheless considered fundamental.

For example, the text of the Constitution does not guarantee the right to have children. Nonetheless, originalists agreed with others that this is a basic right and that the Constitution protects it as it does rights explicitly mentioned in its text, such as the right to a free press, free speech and the free exercise of religion.

Thus, if a state made it a felony for a person to be the biological parent of more than one child, an originalist would invalidate such a law because it conflicts with an un-enumerated right that should be protected. While that result would be generally applauded, it is flatly inconsistent with originalism's promise to constrain judicial discretion.

As someone who has been investigating the original meaning of the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment for decades, I can assure Professor Rudenstine that these clauses do have an original meaning-though there is some disagreement among originalists about it. (Most disputes among originalists about unenumerated rights, however, are not about meaning but about the appropriate judicial role in enforcing that meaning, which is why I wrote Our Republican Constitution.)

But the issue he is raising about "judicial discretion" is a bit too complicated to unpack, even in a blog post as lengthy as this one. Suffice it to say that no originalist claims that judges have zero discretion or choices to make when applying the original meaning of the text to the facts of particular cases. They merely claim that the original meaning of the text constrains the decision making of judges to the extent that this meaning must remain the same until properly changed; and that judges cannot properly change the meaning of the text "in light of changing circumstances." Unless Professor Rudenstine can produce an example of an originalist who claims that the original meaning of the text eliminates all judicial discretion, then he is attacking a straw man.

At this point, it is only fair to ask Professor Rudenstine to identify his own approach to constitutional interpretation and application to see if it performs better or worse than originalism. For is that not the fair test of the relative strengths of competing constitutional approaches? My guess is that, whatever his approach, it will perform worse by every criteria by which he judges originalism as wanting. But I cannot know this for certain until he informs readers like me of his own allegedly superior approach.

Lastly, although this is not an exhaustive list - the framers of the Constitution were ultimately pragmatists who endorsed a brief Constitution. That meant that only the Constitution's "great outlines [were] … marked" and its "important objects" designated. The duty of all who were called upon to construe the Constitution was, as Chief Justice John Marshall wrote, "never [to] forget that it is a constitution we are expounding," by which he meant that it was written in general terms to permit it to be construed in light of changing circumstances.

Thus, the Supreme Court appropriately adapted the Constitution to modern technology when it applied the Fourth Amendment to telephone surveillance and broadly construed the commerce clause power. Nonetheless, an originalist must reject such sensible thinking as inconsistent with the theory's basic tenets.

Uh, no. With respect to the Fourth Amendment, they mustn't because it isn't. But with respect to the Commerce Clause, they should, because it is.

However, what to do about these "constitutional mistakes" today is separate issue than whether or not the original meaning of the text when enacted is discoverable. Many originalists adhere to the doctrine of stare decisis or precedent. And even an originalist (like me) who doubts that erroneous past judicial decisions can ever trump the original meaning of the text, can hold the view that settled cases have been settled-res judicata-but that the mistaken reasoning of these decisions of long-dead justices should not rule us from the grave; that, even if we do not reopen previously decided cases, originalism has a gravitational force in deciding future ones. In particular, erroneous reasoning should not be further extended, and we should gradually return to the original meaning in a case-by-case fashion as new statutes are enacted and challenged.

Because of its fatal flaws, originalism fails to be descriptive of more than 200 years of Supreme Court history and makes promises that cannot be kept.

Anyone who is as able as Gorsuch knows that. As a result, instead of being a modest judge who states that he will not make law, he knowingly misleads the American public as to the scope of discretionary authority originalism invests in a judge. In my mind, this disqualifies him from becoming a Supreme Court justice.

Here, by so publicly claiming that an honorable man like Neil Gorsuch is "disqualified . . . from becoming a Supreme Court justice" because he "knowingly misleads the American people," Professor Rudenstine is arguing in a manner unbefitting a member of the academy. Nevertheless, rather than accusing Professor Rudenstine of "knowingly misleading" the readers of the National Law Journal, a more charitable explanation is that-whatever else may be his professional expertise-Professor Rudenstine just doesn't know what he's talking about.

UPDATE: My thanks to Ken Jost for promptly noting on Twitter the numerous times I sometimes spelled Professor Rudenstine's last name as "Rudenstein." However, although fortunately these spelling corrections were successfully posted, other grammatical corrections I then made to the piece-along with several additional links to supporting scholarship by Jack Balkin and Larry Solum- did not update. So I have now made these changes.