Originalism in the Lower Courts

Judge Bumatay's Originalist Eighth Amendment dissent from denial of rehearing en banc

"The Eighth Amendment’s history and original understanding are of vital importance to this case."


In August, a Ninth Circuit panel held that the denial of sex-reassignment surgery to a prisoner with gender dysphoria violates the Eighth Amendment. The Ninth Circuit has now denied rehearing en banc in that case. Judge Patrick Bumatay, who was confirmed in December, wrote a dissent from denial of rehearing en banc. He was joined in fully by Judges Callahan, Ikuta, R. Nelson, Bade, and VanDyke. (Judge Collins only joined Part II.)

Judge Bumatay's dissent is thoroughly originalist. Here is the introduction from Part I of the opinion:

In holding that Idaho violated the Eighth Amendment, the panel opined that the Constitution's text and original meaning merited "little discussion." I disagree.

As inferior court judges, we are bound by Supreme Court precedent. Yet, in my view, judges also have a "duty to interpret the Constitution in light of its text, structure, and original understanding." NLRB v. Noel Canning, (2014) (Scalia, J., concurring). While we must faithfully follow the Court's Eighth Amendment precedent as articulated in Estelle v. Gamble,(1976), and its progeny, "[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history." Free Enter. Fund v. Public Co. Accounting Oversight Bd., (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff'd in part, rev'd in part and remanded, 561 U.S. 477 (2010).

Accordingly, the Eighth Amendment's history and original understanding are of vital importance to this case.

Judge Bumatay also relies extensively on the work of Professor John Stinneford, the leading scholar on Eight Amendment originalism.

In the 18th Century, a punishment was "unusual" if it ran contrary to longstanding usage or custom, or had long fallen out of use. Bucklew, (citing 4 William Blackstone, Commentaries on the Laws of England 370 (1769); Stuart Banner, The Death Penalty: An American History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring); John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814 (2008)). This early understanding comports with the plain meaning of "unusual," which has changed little from our Nation's founding. See Harmelin v. Michigan, (1991) (comparing Webster's American Dictionary (1828) definition of "unusual" as that which does not "occu[r] in ordinary practice" with Webster's Second International Dictionary 2807 (1954) as that which is not "in common use.").

Conversely, customs enjoying a long history of usage were described as "usual" practices. Stinneford, supra, at 1770. James Wilson, a key contributor to the Constitution, stated that "long customs, approved by the consent of those who use them, acquire the qualities of a law." 2 James Wilson, Collected Works of James Wilson 759 (Kermit L. Hall & Mark David Hall eds., Indianapolis, Liberty Fund 2007); see also Stinneford, supra, at 1769. Likewise, early American courts construing the term "cruel and unusual" (generally, as used in state constitutions) upheld punishments that were not "unusual" in light of common law usage. Stinneford, supra, at 1810–11.

This opinion illustrates how lower court judges can consider originalism and stare decisis.

I also commend Judge Bumatay's general approach to the case. Often, originalist opinions are curt or dismissive towards the person asserting a right not supported by the original meaning of the Constitution. Not here.  Judge Bumatay goes out of his way to identify with the prisoner's situation, even though the law is not in her favor. Here is the introductory section of the opinion:

Like the panel and the district court, I hold great sympathy for Adree Edmo's medical situation. And as with all citizens, her constitutional rights deserve the utmost respect and vigilant protection. As the district court rightly stated,

The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution. This is so whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender.

Adree Edmo is a transgender woman suffering from gender dysphoria—a serious medical condition. While incarcerated in Idaho's correctional facilities, she asked that her gender dysphoria be treated with sex-reassignment surgery ("SRS"). After consultation with a prison doctor, her request was denied. She then sued under the Eighth Amendment.

I respect Edmo's wishes and hope she is afforded the best treatment possible. But whether SRS is the optimal treatment for Edmo's gender dysphoria is not before us. As judges, our role is not to take sides in matters of conflicting medical care. Rather, our duty is to faithfully interpret theConstitution.

That duty commands that we apply the Eighth Amendment, not our sympathies. Here, in disregard of the text and history of the Constitution and precedent, the panel's decision elevates innovative and evolving medical standards to be the constitutional threshold for prison medical care. In doing so, the panel minimizes the standard for establishing a violation of the Eighth Amendment.

Judge Bumatay's opinion serves as a model of how other courts should treat similar issues.

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  1. What about people who really will be bummed out if they don’t have plastic surgery? Are they out of luck?

    Funny, you’d think if murderers lopping off their penis and taking hormones at taxpayer expense was such a common and uniquely deep intrinsic need you’d hear more about before 10-30 years ago. Maybe a poem here or a haiku there about some prisoner in 13th century England or Edo Japan about how the constable wouldn’t give them a razor blade. But nope, nobody had a problem with this until a few years ago when society suddenly turned it into the most important right in the universe. Coincidence I guess.

    1. As the dissent notes, the argument for this was just a case of the court up and deciding to invest one side in an ideological fight with legal authority.

      This is an ideological ruling, not legal.

      This dude is nuts, and surgically mutilating him will not cure his insanity. His prognosis won’t be improved one bit by the surgery, rendering it medical malpractice, not treatment.

      1. Thus spake Dr. Bellmore.

        Pardon me, Brett, but I’d prefer to listen to medical opinions from people who, you know, actually know some medicine.

        1. If we polled every doctor in the world and asked whether murderers and child molesters should get expensive taxpayer funded sex change surgery are you willing to say whatever collective opinion they have is the absolute undisputable truth for all time?

        2. The vast majority of the pro trans movement are not what one would call doctors. They actually prescribe their patients poison, including children. They are activists, not doctors.

        3. O’Brien held up his left hand, its back towards Winston, with the thumb hidden and the four fingers extended.
          “How many fingers am I holding up, Winston?’
          “And if the Party says that it is not four but five – then how many?”
          The word ended in a gasp of pain. The needle of the dial had shot up to fifty-five. The sweat had sprung out all over Winston’s body. The air tore into his lungs and issued again in deep groans which even by clenching his teeth he could not stop. O’Brien watched him, the four fingers still extended. He drew back the lever.

          If Winston can say “four”, why should I say “five” when you don’t even have that lever?

      2. Transgenders aren’t insane. But they ought to be out of luck as far as expecting taxpayers to foot the bill.

        Did this trannie want the surgery before incarceration? Could that have been an incentive for committing the crime?

        What would this trannie have done if not in jail — hold a cardboard sign on a street corner, begging for donations?

        What did trannies do up until, what, 50 years ago? They all somehow survived. How many even knew they needed reassignment surgery?

        Far as I’m concerned, incarceration means the State has to do its best to maintain your current health, making allowances for getting older, such as heart attacks or strokes or cancer, and then only to deal with it as an ordinary person’s health coverage would have dealt with it. It certainly doe snot include gender reassignment, cosmetic surgery, steroids to bulk out and qualify for the Olympics, or special tutoring to become the next chess grand champion.

        1. Nope, sorry, they are insane. As insane as somebody who thinks they can fly, and steps off the top of a building. As insane as somebody who’s convinced they’re Napoleon Bonaparte.

          By all the standards the profession of psychiatry respected before they chose ideology over professionalism, the transgender are nuttier than a fruitcake.

          As an example of that, “What did trannies do up until, what, 50 years ago? They all somehow survived.”

          No, they didn’t. They committed suicide at a terrifying rate. They still commit suicide at a terrifying rate. They continue to do it even if surgically and chemically mutilated. Even if they travel to someplace nobody knows them, and succeed in fooling the people around them.

          The left doesn’t care about trannies. To the left, they’re just O’Brien’s upheld hand, the latest demand that you sacrifice the evidence of your senses to arbitrary demands, and surrender to the Party.

          1. Riiiight, so all the people who died young were insane because they died too.

            You ain’t no doctor, bud.

            1. Being obsessed with an objectively false belief, which leads to self-harm and suicide; What’s not insane about that?

              We don’t provide anorexics with bariatric surgery. We don’t amputate limbs to “cure” body integrity dysphoria.

              All the dysphorias involve an obsessive belief about your body/identity which is objectively false, and none of them can be successfully treated by attempting to bring the physical reality into alignment with the false belief, because doing so doesn’t resolve the reason the person had the false belief in the first place.

          2. Has it ever occurred to you that calling them “trannies” and “insane” leads to a culture where they feel so unaccepted that they kill themselves?

            Also, has it ever occurred to you that you’re out of your depth on a lot subjects you don’t study in-depth based on one or two things you disagree with? I mean here you are discounting the entire fields of psychology and psychiatry because of one thing you don’t like. Just like you have discounted all of the historical profession because of Michael Bellesiles.

            But of course that makes sense coming from someone who also thinks he knows who the “real Jews” are.

            Honestly, you really need to reflect on why you are so arrogant.

            1. Has it ever occurred to you that feeling bad about something doesn’t entitle you to have other people deny reality?

              1. So, that’s a no on the arrogance thing I guess.

              2. Also. Don’t pretend like you feel bad. You don’t.

                1. Nah, it’s the gender dysphorics who feel bad. And they genuinely do feel bad, that’s no lie.

                  But it doesn’t entitle them to have other people pretend their delusion is reality.

      3. Transgender diagnosis has all the hallmarks of a fad pseudo mental illness diagnosis. Very similar to the Repressed memory syndrome that was the de jour mental illness diagnosis of the 1980’s. Except the recommended treatment for for the false diagnosis creates extremely severe irreversable harm to the mentally ill.

    2. Apply it even more simply. Can someone with ableism enlist a prison to cut off an appendage? It too is a dysphoria. Can a Prison legally and with no liability allow an anorexic to starve themselves to death in prison? Again another dysphoria.

  2. Judge Bumatay sympathizes with the prisoner’s situation and with the notion that inferior courts are bound by Supreme Court precedent. But, he would like to tell you what he thinks the Eighth Amendment means. After telling you what it means he will then tell you how Supreme Court precedent just happens to accord with his meaning (well, with a generous reference to concurring and dissenting opinions). But don’t worry, its the law that controls him.

    Judge Bumatay’s closing paragraph start with:

    “The Eighth Amendment’s history and text entreat us to hold the line on the heightened standards for a constitutional deprivation found in our precedent. As Justice Thomas rightly observed, “[t]he Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Hudson, 503 U.S. at 28 (Thomas, J., dissenting). …”

    Dicta from a dissenting opinion … that’s the law people.

    1. Yeah, the boring culture war wankery above misses the real bit of interest.

      This is just self indulgence from an inferior judge.
      I don’t care how cocksure you are of your Constitutional fidelity beating all others, as an inferior court you don’t get to make that call in a review like this.

      1. The strategy of overcoming Warren-era (and later) liberal precedents by articulating a theory that devalues precedent has always struck me as father shortsighted. There is certainly going to be gains in the short-term, but when the composition of the judiciary inevitably shifts back to the other party (as the courts have repeatedly vacillated), the theory of the previous party sews the seed of its own undoing. All those Originalist precedents that were written, by their own theory, can be discarded. A new coalition of judges can just claim they are recovering the correct meaning of the Constitution, which was properly articulated by the Warren Court. These judges can even cite the Originalist opinions as support for not following Originalist opinions

        In the larger picture, a jurisprudential philosophy that devalues precedent sets itself up to have its own body of legal interpretations later devalued. I feel like someone in the Federalist Society should have raised their hand and mentioned this.

        1. There seems to be an internal conflict in your argument, in as much as the Warren era and later liberal precedents were often overturning prior precedent.

  3. While we must faithfully follow the Court’s Eighth Amendment precedent as articulated in Estelle v. Gamble,(1976), and its progeny, “[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.”

    How is this any different from Reinhardt driving a Mack truck through every misplaced comma in a Supreme Court AEPDA decision?

  4. I respect Edmo’s wishes and hope she is afforded the best treatment possible. But whether SRS is the optimal treatment for Edmo’s gender dysphoria is not before us. As judges, our role is not to take sides in matters of conflicting medical care. Rather, our duty is to faithfully interpret theConstitution.

    Were serious conflicts alleged? I mean aside from Dr. Bellmore on one side and some actual physicians on the other?

    Here, in disregard of the text and history of the Constitution and precedent, the panel’s decision elevates innovative and evolving medical standards to be the constitutional threshold for prison medical care. In doing so, the panel minimizes the standard for establishing a violation of the Eighth Amendment.

    And what exactly is wrong, as a general proposition, with elevating “innovative and evolving medical standards to be the constitutional threshold for prison medical care?” Is prison medical care to be limited to treatments available in the 18th Century.

    More idiotic originalism.

    1. >>>>>>>>>>>>>>>
      Were serious conflicts alleged?

      Its called money. You know that thing that doesn’t fall from the sky. It’d be nice to be able to pay for everything but here in the real world we have this concept called priorities which getting medical procedures that don’t actually do what we legally pretend it does for dangerous criminals is rather low on the list.

      If you want him to get surgery so badly why don’t you and other likeminded individuals chip in and fund it yourself?

      1. Bernard has never earned a living, he thinks all money is delivered by the government at no expense.

    2. So elective surgery is now the constitutional threshold for prisons? You’re an idiot.

  5. Everyone knows the original meaning of precedent is that it can be disregarded by smarter new judges who happen along and find it hiding in dissents. It’s there all the time if one just looks in the right place.

  6. This is an audition to the Supreme Court.

    1. James Ho is way ahead in the wacky opinion department.

    2. He used the prisoners preferred pronouns and name rather than going out of his way to be a dick to prisoners like Ho and Duncan did. He won’t be on the short-list

  7. So originalism supersedes the actual plan meaning of the text? Odd.

    1. What plain meaning of the text? Refusing to pay for somebody’s elective surgery isn’t a punishment, so it can’t be a cruel and unusual punishment. And refusing to pay for elective surgery isn’t unusual, either. It’s paying for this mutilation that’s unusual.

      So I don’t see how the 8th amendment applies in any case, on the face of it.

      1. It’s amazing how analytical problems disappear if one defines them away!

        1. This is an analytical problem somebody defined into existence in the first place.

      2. That was my point. The 8A doesn’t apply at all. Even an originalist has to once in a while read the actual provision.

  8. If transgender surgery was held to the same standards as other medical procedures, risk, irreversibly, satisfaction and most importantly long term well-being then it wouldn’t let be allowed for ethics reasons.

  9. Sorry, but to this layman, it is utterly ridiculous that it is cruel and unusual punishment to deny an elective sex change surgery at taxpayer expense for a prisoner. You have got to be kidding me.

    Basic medical care for prisoners? Absolutely, with the possible exception of child molesters and pedophiles who I think should die slowly and painfully at the hands of fellow prisoners. Elective sex assignment surgery at taxpayer expense? GTFOH. No way that is cruel or unusual punishment. Nutty Ninth is right.

    Once again, SCOTUS will have to step in, when they should not have to, in order to restore sanity.

  10. One does not have to agree with the result to recognize what Bumatay is doing here.

    1. Could you elaborate on that?

  11. I found the definitions of cruel interesting, in particular the relationship between punishment and pleasure:

    “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting.”

    “Disposed to give pain to others, in body or mind; willing
    or pleased to torment, vex or afflict; inhuman; destitute of
    pity, compassion or kindness.”

    Does this in some sense require a subjective inquiry into whether the punishers are themselves sadists? If someone gets joy or pleasure from denying the surgery or sticking it to the trans community does it become cruel? Or more generally, does any punishment, say extended solitary, become cruel once the guard gets pleasure?

    And what about society at large? How does it apply in a society that generally really places a high cultural value on punishment? Are not most of our punishments cruel since people seem to get a lot of joy over inflicting them, at least in the abstract sense?

    1. It’s not “cruel or unusual”, it’s “cruel and unusual”.

      The point wasn’t that punishment couldn’t be unpleasant. Punishment was supposed to be unpleasant.

      It was to keep judges themselves from being sadistically inventive.

      The judiciary doesn’t like noticing that this amendment was aimed straight at THEM.

  12. I know what it says. I’m interested in what it means to be cruel.

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