The Volokh Conspiracy
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What is it about originalism that makes smart living constitutionalist law professors write silly things? Duquesne law professor Bruce Ledewitz is a smart guy. But he's written a snarky op-ed about about the Trinity Lutheran case and originalism entitled, 'Trinity' case marks end of originalism. Let's review it, shall we?
It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation. Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.
The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs.
To claim that originalism as a theory of constitutional interpretation is wrong is commonplace among law professors. But Professor Ledewitz is not content to make such a claim. No, he needs to claim that it "was probably always a mistake to take originalism seriously." And one need not take it seriously because the "theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs." Of course, he fails to explain, much less substantiate, any of this. True, this is only a newspaper op-ed. But format is no excuse for a legal academic to affirmatively make a wild claim about a major position in constitutional law held by many thoughtful and respected academics-who have defended their views at length from critics like Professor Ledewitz. Professor Ledewitz is trading here on his title as a law professor as well as on the unfamiliarity of his newspaper audience with a literature he purports to be familiar with as a scholar.
Nevertheless, originalism has achieved a real rhetorical dominance. But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap.
This is pure anti-intellectualism. According to this law professor, there is no need for him or anyone else even to address originalists anymore-much less have one on your faculty-because their views can merely be summarily and "confidently" dismissed without further argument. He then continues:
In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. Missouri has a state constitutional provision forbidding the disbursement of public money to any church. Except for church ownership, the playground would have qualified for participation in the program. The church sued over the exclusion on the ground that its right to free exercise of religion had been infringed.
The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome.
But, from the point of view of originalism, the decision was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.
Because he does not specify what he means by "makes no sense as a matter of language," I cannot be certain what he is claiming. But if he means to claim that an original public meaning of the text cannot be discovered "as a matter of language," he then immediately contradicts that claim by asserting an original meaning of the Establishment Clause so definitive that a finding for Trinity Lutheran was "ridiculous" "from the point of view of originalism."
I am not an expert on the Religion Clauses, so I am not as confident about their original meaning as Professor Ledewitz. But every originalist-indeed every living constitutionist-understands that neither the Free Exercise Clause nor the Establishment Clause originally applied to the states at all. Instead, it applied to Congress. What exactly an "establishment of religion" was in 1791 is a matter of good faith academic dispute. But some thoughtful originalists have maintained that, whatever constituted an "establishment of religion," the First Amendment's wording "make no law with respect to" forbade Congress both from establishing a national religion (at minimum) and also from disestablishing a state religion. On this account, the Establishment Clause operated-perhaps exclusively-as a federalism provision, expressly acknowledging that Congress had "no power" in this area, with all powers pertaining to religion reserved to the states.
So if we are speaking of a state law, then we must be talking about the meaning of the 14th Amendment-a constitutional provision that makes no appearance in Professor Ledewitz's op-ed. And if we are talking about original meaning, then it is the original meaning of Section 1 of the 14th Amendment that is at issue. Professor Ledewitz offers us nothing on this either.
Many originalists believe that the "incorporation doctrine" by which what came in the 20th Century to be known as "the Bill of Rights" was somehow incorporated into the 14th Amendment is an anachronism. These originalists maintain that the Privileges or Immunities Clause was a free standing provision, the substance of which included both the "Corfield v. Coryell" rights associate with the Privileges and Immunities Clause of Article IV together with additional fundamental "privileges" of citizens to which the first ten amendments referred. Others would limit the Privileges or Immunities Clause to the latter category. But for both of these originalist camps, conceiving of the 14th Amendment as literally "incorporating" "the Bill of Rights"-as advocated by Justice Black in the 1940s is modern invention.
In addition, some originalists maintain that, because the original meaning of the Establishment Clause was a federalism provision barring Congress from disestablishing state religions, it did not enunciate an individual right that could be considered a Privileges or Immunity of citizens of U.S. citizens. Others, like Kurt Lash, disagree on the ground that, by 1868, the meaning of the Establishment Clause had evolved so its public meaning at the time of the 14th Amendment did include an individual privilege or immunity. But if Lash and others are wrong about this, then the original meaning of the 14th Amendment protected only free exercise rights from state infringement; it did not bar states from making laws that could constitute an establishment of religion. (This would be what Sandy Levinson calls an "unhappy ending" for an originalist who believes today in a strong separation of church and state.)
So when Professor Ledewitz in the next sentence says that "even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause," he is asserting what he claims to be an originalist position so obvious that to deny it is to be ridiculous. But, to the contrary, the Establishment Clause did not originally apply to a state like Missouri, and it is not clear either that any and all payments to a church would have constituted "an establishment of religion," or that an antiestablishment principle even applied to the states via the original meaning of the 14th Amendment! But let us proceed.
And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause [check!], it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.
Neither the Court, nor Trinity Lutheran, maintained that "the Free Exercise Clause . . . required the payment of public money to a church." Instead, for the challengers, the issue was whether the 14th Amendment prohibited a state from discriminating against some of its citizens who were applying for a government benefit on the ground that they were organized as a church to exercise their religion. A majority of the Court agreed this was unconstitutional.
Indeed, the state constitutional provision in the case-a so-called Blaine Amendment-was rooted in anti-Catholic bigotry. When protestants controlled the public schools, they did not want to see Catholics setting up their own school system. So Catholics would be made to pay twice: once for the protestant "public" school they would not utilize and again for a Catholic school they would. (Oh and if you want an example of just how protestants controlled the government schools, consider that as a second grader in Calumet City, Illinois, I-a Jew-played a shepherd kneeling at the manger of baby Jesus at our public school's annual Christmas pageant. Later, in the seventh grade, I portrayed "Scrooge" in my junior high school's annual Christmas play. All quite voluntarily.)
Whether and how the 14th Amendment might bar state discrimination in the dispensation of benefits on the basis of the religion of its citizens is a matter of both original meaning, as well as the need to develop implementing rules to apply that meaning to particular cases. And those implementing rules might well take into account the discriminatory origins of an otherwise facially-neutral provision like a Blaine Amendment, as the Court did for Chinese Americans in Yick Wo v. Hopkins.
All this is complicated, for originalist and nonoriginalist constitutional scholars alike. But it's all very easy for Professor Ledewitz. According to him, "how the living constitution works" is that "[w]e apply constitutional principles in ways that make sense today." Easy peasy. He then proceeds to impugn the good faith and academic integrity of originalists scholars:
The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory.
The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. This is clear in the pronouncements of leading originalists like Randy Barnett of Georgetown Law School, the mastermind of the Obamacare judicial challenge, and a supporter of what is called the pre-New Deal court. Since powerful economic interests in this country could never convince the American people to surrender the power of the federal government to deal with national problems, originalism must be relied on to do this in the courts, under the misleading rubric that judges enforcing history are doing so in a value neutral way.
So "the purpose" of originalist scholars like me "never had anything to do with interpretive theory." "The real purpose" is purely political. Of course, modern originalists hold a variety of political views-from libertarians (like me) to conservatives to political progressives-and not just Jack Balkin. Yet, we are all somehow engaged in deliberately misleading "the American people" on behalf of "powerful economic interests in this country." This is the message Professor Ledewitz chose to convey to the readers of the Philadelphia Inquirer. (For the record, while I support some pre-New Deal Supreme Court doctrines, I strongly oppose others, but this seems not to matter to Professor Ledewitz.) He then concludes:
Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today.
Such are the clairvoyant powers of living constitutionalists, at least according to Professor Ledewitz. The framers were practical men, Professor Ledewitz is a practical man, so the framers would have agreed with Professor Ledewitz. It's simple logic.
But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.
Professor Ledewitz-along with many Republicans in Congress-would have Congress regulate state tort law systems because of their effect on interstate commerce. The question posed by a written Constitution is not whether "this makes sense today" but whether this overruling of one government by another government is authorized in the Constitution. Speaking on behalf of living constitutionalism, Professor Ledewitz would not be bothered with such questions.
As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.
But does it "make sense today" that liberal judges vote for what "makes sense to them today" and conservative justices vote on "what makes sense to them today"?
I mean, what could possibly go wrong?