The Volokh Conspiracy
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"The end of Originalism" Round Two: Ledewitz doubles down
In this post, I replied to this op-ed by Duquesne law professor Bruce Ledewitz, who has now responded with this lengthy blog post of his own. We will get to the particulars in a moment, but first a general observation. As with his original op-ed, Ledewitz's more extended reply is deeply unscholarly. In criticizing originalism and making assertions about original meanimg, it is devoid of any reference to any argument or scholarly analysis offered by any contemporary originalist. Instead, like others in this genre to which I responded during the Gorsuch nomination, his new response relies on its own assumptions about what "originalism" is or must be, assumptions largely borrowed from (the far more scholarly) criticisms of originalism made by Stanford law professor Paul Brest some thirty-seven (37!) years ago in an article that coined the label "originalism." Professor Ledewitz is either unaware of the substantial body of originalist theory and research that has arisen in the past three decades-which is unlikely-or he simply prefers to ignore it because actually dealing with the position of originalists today would be more challenging for him. While this is to be expected from a political polemicist, it is deeply disappointing for this to come from a tenured professor of constitutional law at an American university.
With this general observation to one side, what about the particulars? As is my practice when dealing with criticisms of originalism, I reproduce them in their entirety so readers need not be concerned that I have taken anything out of context. Let's begin, shall we?
Randy Barnett graciously responded to my op-ed in the Washington Post blog, The Volokh Conspiracy. I was unable to reply beyond a few words, so I am responding here.
It is not surprising that Randy Barnett would respond to my op-ed in full and fairly. That is the kind of person he is [Thanks, Bruce! Disagreements aside, I like you too.]. My only regret is that he thinks my original op-ed was snarky. I am in deadly earnest in opposing originalism and the damage it is causing and has caused.
Let me respond to his main points, although briefly.
1. Originalism is not a theory of language.
Fact check: True. Originalism is a theory of constitutional interpretation, not a theory of language. As it happens, though, as a theory of interpretation, originalism is well-supported by powerful and highly respected approaches to the philosophy of language (as my Georgetown colleague Larry Solum has explained at length in numerous articles)-not to mention by USC professor Scott Soames, an esteemed philosopher of language who lectured this year at the Georgetown Center for the Constitution's "Originalism Boot Camp."
The meaning of language changes.
Fact check: True. Philosophers of language call this "linguistic drift." As Larry Solum has explained here, what we think of as a "deer" is not what speakers of English in the middle ages referred to as a "deer" (or to be more precise, their category was far broader and would have included what we think of as a "deer.")
Suppose, for example, that we are attempting to determine the semantic content of a letter written in the twelfth century that uses the term "deer." Over time, the meaning of the term "deer" has substantially changed. Today, "deer" refers to a ruminant mammal belonging to the family Cervidae, and a number of broadly similar animals from related families within the order Artiodactyla are often also called deer. But in Middle English, the word "deer" meant a beast or animal of any kind. An ordinary letter written between 1066 and the fifteenth century that employed the term "deer" can only be understood reliably in light of the conventional semantic meaning at the time of writing: to read the letter as using the term "deer" to refer exclusively to a mammal belonging to the family Cervidae would be to make a type of factual error, i.e., a linguistic mistake.
Likewise the phrase "domestic violence" is most commonly used today to refer to "violent or aggressive behavior within the home, typically involving the violent abuse of a spouse or partner." (Google it!) Article IV, Section IV reads:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
So, if we are to take Professor Ledewitz seriously, the "meaning" of this provision has changed. It no longer protects against riots; it now protects against spouse abuse. Or, perhaps more charitably, "we" today may deem its meaning to have changed if "we" today think this change "makes sense." Now we all know Professor Ledewitz does not believe this, but why not? None of his arguments for "living constitutionalism" foreclose this possibility. And were he to say that the language of the Article IV, Section 4 as a whole refers to riots, why are we today bound by this when "we" today think it is better that the national government have the power to fight spouse abuse and the modern meaning if Article IV can be so read?
At its base, originalism stands for the proposition that the meaning of the Constitution remains the same until it is properly changed. And this is because the Constitution is the law that governs those who govern us. And those who govern us can no more change the law that governs them without going through the specified amendments process (the meaning of which has not changed) than we can change the laws that govern us without going through the legislative process.
Nor was the phenomenon of linguistic drift unknown to the founding generation who adopted a written constitution. Here is how Madison put the matter (emphases mine):
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.
Unlike Madison, if taken literally, Professor Ledewitz would have the meaning of the Constitution change according to the vagaries of linguistic practice. But what sense would this make? Professor Ledewitz would have "us" change the laws in ways that "make sense" to "us." Who exactly the "we" and "us" are in this process is not specified. That's a problem for his approach. Now back to Ledewitz's response:
That is why common law discriminations against women violate equal protection today when no one thought they did when the Fourteenth Amendment was adopted.
Fact check: False. As I explain in my book at greater length, Chief Justice Salmon Chase dissented from the Supreme Court's decision in Bradwell v Illinois (1873), which upheld the discrimination against women in licensing lawyers. Chase believed the 14th Amendment barred such discrimination by a state. So, not only did someone think that "common law discriminations against women" were unconstitutional "when the Fourteenth Amendment was adopted," that someone was the Chief Justice of the United States. For reasons I have explained in my book, I think Chase was right and the other members of the Supreme Court were wrong about this. In short, I make a claim about "constitutional truth"-Professor Ledewitz's phrase I address below.
It is why regulatory takings are takings when that category did not exist before. The Constitution is not in quotation marks. If it says "freedom of speech," that phrase has to be interpreted to make sense to the current citizens of the United States. Nobody asks whether the framers meant to include art or advertising if it is obvious to almost everybody now that these matters are part of speech.
I mean this point as descriptive rather than prescriptive. I am pretty sure the Constitution will mostly be interpreted in accordance with what the words mean in the modern context. And it has mostly been interpreted in that way. Only where there is some important political agenda present does originalism actually matter.
In truth, terms like "domestic violence" notwithstanding, the meaning of the language used by the Constitution has not changed radically since the founding. So there is little reason to ask whether the original meaning of "speech" included, say, so-called "commercial speech" unless provided with some reason to doubt it. On the other hand, we do know it included so-called "political speech," which some living constitutionalist critics of Citizens United would empower Congress to criminalize because that "makes sense" to them "today." Ledewitz would have "the freedom of speech" be whatever makes sense "in the modern context"-as decided by whom? Congress? A majority of the Supreme Court? The editorial board of the New York Times? The Wall Street Journal? The Duquesne law faculty? Since not everyone will agree, the "who decides" question is key. To answer the question of "who decides," it makes sense to have a written constitution, the meaning of which cannot be changed by those who are to be governed by it.
To put it simply, by 1954 de jure school segregation did not constitute equal protection of the laws, whether it did before or not.
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. (If he disagrees with McConnell, let him explain why, but he should at least acknowledge the other side. Perhaps this is why he equivocates on original meaning by writing "whether it did or not.") And he surely knows as well that, in 1954, large parts of the country did not believe that the Equal Protection Clause barred segregated schools. So it is entirely unclear what he means when he says, "by 1954 de jure school segregation did not constitute equal protection of the laws."
2. Originalism is not a political theory. Here I mean that the framers did not enact originalism. They enacted the underlying value-or rather, since they believed in natural rights, they recognized the underlying value. But they did not imagine that they were the last interpreters of those values. So, if they meant to ban cruel punishments-leaving aside unusual-they meant cruel punishments, not punishments they thought were cruel.
Again, as he did in his original piece, Professor Ledewitz able to divine what the framers thought (but see Madison above who seems to have disagreed with Professor Ledewitz about linguistic drift, which won't matter a whit to Professor Ledewitz). On the original meaning of "Cruel and Unusual" see these pieces by University of Florida law professor John Stinneford. Originalists do not deny that the concepts to which the original meaning of the Constitution refer need to be applied to new circumstances. To the contrary they insist upon it, as Professor Stinneford explains in the context of the Eighth Amendment here. As a scholar opining on original meaning and "cruel and unusual," presumably Professor Ledewitz is familiar with this research on that very topic.
3. Originalism is nihilism in action. This was the criticism noted conservative thinker Harry Jaffe leveled against originalism years ago. And it is present in Randy's criticism of my op-ed. What could go wrong, he asks. Randy means that there is nothing but power play in judicial reasoning about values. And this is what Justice Antonin Scalia thought as well-he wrote that values were just something philosophers could play with in his book, A Matter of Interpretation.
Here I won't speak for the late Justice, but only for myself: I am a "moral realist" who wrote a whole book defending the objective validity of certain natural rights, and the relationship of these rights to the rule of law (and why the latter is imperative along with the former). Philosophically, I consider myself an Aristotelian-Thomist in the mold of my teacher Henry Veatch. Yet somehow I forgot about all this when I became an originalist? I think not.
But is there no fact of the matter that reasoning might lead to about cruel punishments-or whether the unborn are fully human?
The issue is not whether there is "a fact of the matter" but who decides? Originalism is an answer to the latter question, not the former. Professor Ledewitz is confused about this.
Weirdly, Randy has written that public meaning is a fact.
Nothing weird about it. It is a fact that "Deer" meant one thing in the middle ages and another thing today. Deal with it.
Well, how is it that history can be a fact when history is so controversial and plainly unprovable, but there is nothing to say, for example, about whether the right to counsel requires public payment of an attorney when a defendant is too poor to afford one? Why can't we reason about that rather than ask what the people who wrote the provision thought?
We can. Modern originalists do not attempt to answer such questions by "channeling the framers." They apply the original meaning of the text to new problems as they arise. This results in a body of constitutional doctrine or law. More on that in a moment. Oddly, Professor Ledewitz claims to be a moral realist while being a historical skeptic.
Again to put the matter simply, is there nothing about truth in constitutional law? And if there is no truth, then why are we surprised that the Republic is falling to pieces? Why are we surprised that we are prey to false news and that the public is cynical about any claims of truth?
Why some of the public may be cynical about institutions who have been revealed to have misrepresented facts to them in the past is beyond the scope of this blog post. But there is little doubt that some progressives are frustrated today because they have lost the institutional hegemony they once had to define what is "truth" for the American people.
4. All of Randy's discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism.
I responded directly to this last claim by Professor Ledewitz about originalism, yet he deems my response (based in part on the original meaning of the 14th Amendment) to be "beside the point." Is this how we "reason" towards "truth in constitutional law"? The Court was applying doctrine. More in this below.
They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist perspective.
Again, this is the claim to which I responded that Professor Ledewitz now dismisses as "beside the point."
Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not.
As I explained here, originalism has a "gravitational force" even when not explicitly relied upon by judges. And no one thinks a majority of the current Court are committed originalists (though they all tend to act as originalists when confronted with issues that have not been decided by prior precedents, as in Noel Canning). As Keith Whittington explained in the 1990s and I insisted upon in my 2004 book, Restoring the Lost Constitution, most of the work of the courts is not interpreting the meaning of the Constitution, but in developing implementing doctrine or "constitutional law" to put that meaning into effect-a distinct activity we call "constitutional construction" to distinguish it from the activity of "constitutional interpretation." (Our position on this is still somewhat controversial among originalists, but it comes in handy here.) Once these doctrines are adopted, courts will focus on applying them. What should matter to an originalist is not whether justices are talking about original meaning but whether these doctrines accurately implement original meaning in good faith or thwart it.
I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy's reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn't fixed. (That was also true of Justice Scalia's majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry-why are 19th century opinions relevant to the original public meaning of the second amendment?)
This is all just silly. But this post is already overly long. What I have already said provides the basis of how I would respond to each of these misunderstandings of originalism.
5. I do impugn the motives of originalists.
I will decline from doing the same for Professor Ledewitz and merely deal with the merits of his arguments, such as they are.
Originalists are generally on the political right. When they get results they like-such as the aforementioned regulatory takings-they do not ask, or they do so very gently, whether the public meaning of takings originally required loss of title.
As I said in my original post, some originalists are political progressives like my dean, William Treanor, who certainly do ask such questions (see here). Conscientious originalists who hold other political views must confront his evidence and arguments. The issue is not one's politics, but one's conscientiousness as an originalist who strives, however imperfectly, to be faithful to the meaning of the text (until it is properly changed).
They do not ask whether corporations originally had rights against the government.
Since the Constitution does not mention "corporations," this is a pseudo-originalist framing of the issue by living constitutionalists. And if it did, like "domestic violence," the term "corporation" had a different meaning before the rise of general incorporation laws in the 19th Century. On its face, the original meaning of "the freedom of speech" of those persons who have organized themselves as limited liability corporations-such as, say, those persons who publish the New York Times-is not to be "abridg[ed]." The original meaning of the text of the Constitution makes no such exception, and you need to do some fancy footwork to imply one.
There is a game going on and the American people are not in on it. I assume that Justice Gorsuch, like Justice Thomas, intends to overturn the thrust of J&L Steel and return America to a vastly different and shrunken national government.
And I know Randy believes that that result will just return us to the original Constitution. But if that is the case, why did he not just say so in his hearings? Because if he had, he would not have been confirmed. I believe he was on the list of potential nominees because that is his intention and belief.
So, why did Justice Kagan say at her hearings that "we are all originalists now?" Would anyone be confirmed as a justice if he or she candidly admitted to holding Professor Ledewitz's view that the meaning of the Constitution is whatever makes sense to a majority of justices today? If confirmation hearings have become a game, it is a game that two can play.
Justice Kagan was referring to the "hard-wired" parts of the Constitution, like the one that allocates 2 senators for every state. But why limit California and New York to 2 senators each when that violates the principle of "one person-one vote," assuming "we" all today accept this principle as a "constitutional truth"? Is it just because the meaning of "2" hasn't changed since the founding? Why exactly should that make a difference to a living constitutionalist like Professor Ledewitz?
But it is even worse than that. As the Trinity Lutheran Church decision shows, Justice Gorsuch is not a consistent originalist and neither is Justice Thomas.
As I showed in this and my previous posts (with arguments to which Professor Ledewitz refuses to respond), with respect to the Trinity Lutheran case, this claim is- to use his term-"ridiculous." And where a judge who is committed to originalism is not "consistent," he or she should be criticized for this (as I have done here). Nobody's perfect. What matters is the standard against which to assess a judge's "consistency."
So, their eventual overturning of 80 years of basically settled law will just be the victory of a Party. It will be the victory of the rich against the interests of workers, the poor and the planet.
If this is an example what Professor Ledewitz thinks is simply "truth in constitutional law," I respectfully disagree about these facts. And why, by the way, does it matter to Professor Ledewitz that "80 years of settled law" would be overturned? After all, Brown reversed 50 years of "settled law." Does he really mean to be "ruled from the grave" by long-dead justices? No, like his various appeals to the framers, this is just a make-weight.
And it will done without ever trying to convince the American people that this result-not the misleading claim that the law is the law in general, but this particular result-is best.
Although I believe that only ends can justify means, for living constitutionalists like Professor Ledewitz, all that matters are ends or "results" that are "best," not the means by which this is decided. But because good means are functionally as important as good ends, this is an entirely different, and dangerous, proposition. Professor Ledewitz wishes to reduce all constitutional law to the "results" he things are "best." The value of a written constitution as a means to shape decision making, including providing written limits on the discretion of democratic majorities (or "us") to impose their will on on minorities, does not figure into his professed method (to the extent he has presented it).
But when he tries to explain why we have a written constitution-and why we are bound by its rule that California and New York each get only 2 senators-then Professor Ledewitz might just end up being an originalist.