Originalism and the Result in Dobbs

Would the outcome in Dobbs put originalism in doubt?

Josh Blackman quotes a conservative 3L as suggesting that, if the Dobbs case doesn't overrule Roe, he or she might have to give up on originalism. I've heard sentiments like these before, and I have to say, they puzzle the heck out of me. Why would anyone upset by Dobbs conclude, "gosh, I'd better change what I believe the Constitution says about recess appointments and the Confrontation Clause"? What kind of views of the Constitution do you hold, if you'd go look for new ones based on what some robe-wearing politician-approved bureaucrats say?

Reaffirming Roe would be an extraordinary black mark for the conservative legal movement, which has wanted it overturned for decades. Ditto for the GOP administrations that campaigned on Court appointments and asked pro-lifers for their votes. But I don't understand how it'd be a black mark for originalism, if only because a theory is more than the group of people practicing it: there's a big difference between originalism and "Originalism Inc."

People can call themselves "originalists" and still be wrong about the original Constitution, just as they can call themselves "historians" and still be wrong about history. The theory isn't there to give us an easy twelve-step method for churning out right answers. It's there to explain what makes those answers the right ones. If you think originalism requires overturning Roe, and if it turns out that the Court's self-described originalists still won't do it, why conclude that originalism is lousy, and not that the Justices you're mad at are lousy originalists?

For comparison: if Roe survives, it'd be despite a 6-3 Catholic majority on the Court. Would it make sense for a Catholic to pick a new religion, just because of what some of the six Catholic Justices do in Dobbs? That'd seem really strange to me; so would picking new views on the content of the law.

Comments

[Snorkle]

Surprise at less than sincerely held beliefs would be surprising, if I thought it was sincerely felt.

[SimonP]

And here we have a concise, on-point critique of the entire framework of Josh's petulant rant(s) on the same topic, which he felt the need to articulate across multiple posts at several times the length.

Stephen, I suspect that you understand the answer to the question you're asking: "Originalists" never actually cared about originalism. It is utterly bizarre to find movement conservatives having second thoughts about originalism precisely at the moment it seems to be ascendant. But it's not hard to understand, in a realpolitik kind of way.

[Doug Heffernan]

The barnett guy and his little buddy were on c-span's q&a today talking about the original meaning of the 14th amendment.

https://www.c-span.org/video/?515977-1/qa-randy-barnett-evan-bernick

At about the four minute mark, a clip from the gorsuch nomination hearing is played where gorsuch gasses off about how an originalist (or textualist) does his work.

Maybe what the 3L kid meant in the note to the blackman kid is that presumably the other conservative justices would define originalism/textualism much the same way that gorsuch did during the hearing. But if only gorsuch and one or two other justices vote to kill off roe, what hope could the 3L kid ever have that the court would ever be comprised of justices in sufficient number that would apply originalism/textualism as ruthlessly (without blinking an eye) as gorsuch might.

So, maybe the young 3L kid could reasonably conclude that we've tried this originalism/textualism thing for a while, maybe we should try something else to get what we want. Because in the end it really is about getting what we want, not necessarily how we get it.

[Brett Bellmore]

Suppose "what we want" is the rule of law, where "the law" isn't defined in legal realist terms, but in originalist terms: Originalism isn't just "a take" on what the law means, it actually IS what the law means, if you take it seriously.

So, if you find that originalism as practiced by legal professionals has given up on bringing practice into agreement with that original meaning, what do you do if your goal remains the rule of law? Can originalism be reformed? Or does it have to be replaced?

And, suppose you decide the whole project, the goal of restoring the rule of law, has proven infeasible. What then do you do?

[David Nieporent]

Stephen, I suspect that you understand the answer to the question you're asking: "Originalists" never actually cared about originalism.

Or "Blackman is a hack, and only hacks are interested in talking to Blackman, so he has a skewed viewpoint about what originalists think."

[Sarcastr0]

I agree one cannot be so sweeping about originalists.

But I also think that outside of academia, there are a lot who bang the originalism drum for purely partisan reasons, and who may depart for more useful pastures, depending on how easily they can rationalize losing the appearance of self-consistency.

It will remain to be seen how much academic originalism has been depending on this institutional support, as it erodes.
I suspect this dependency is more vital than many in academia realize. Some will remain, but I wouldn't lay good odds in the ascent of originalism continuing over the next ten years.

[Brett Bellmore]

Or maybe there are those who treat originalism as just an intellectual game without real world application. They're satisfied to find the meaning of the Constitution, but won't raise a finger to put it into effect if it conflicts with precedent.

And the people who actually take originalism seriously, instead of treating it as a game, aren't happy with that.

[Sarcastr0]

Yeah, finding out the truth is an intellectual game. Precedent turns out to have been expected to matter from the origin.

Listen to yourself. You're not happy because you're nakedly outcome-oriented and can't deal with your EZ-bake radicalism no longer being supportable intellectually.

You're exactly like that 3L, except too broad spectrum righty to go merely catholic theocrat.

[Brett Bellmore]

Faith without works is dead faith, Sarcastro. Finding the truth is intellectual work, if you act on the truth. Finding the truth and then not acting on it is just intellectual play.

[Sarcastr0]

So you reject precedent you disagree with not due to originalism, but due to end results you'd prefer.
And you think anyone who disagrees with you is just into useless intellectualizing.

The jurisprudence of positivist conservativism is in session, I guess.

[Brett Bellmore]

I distinguish between precedent I "dislike", and precedent I "disagree with". For instance, I think the 16th and 17th amendments were very bad changes to the Constitution, but they WERE changes to the Constitution, in the exact sense that Roe was NOT a change to the Constitution.

I'll never complain about a judge or justice who upholds one of the parts of the Constitution I dislike but acknowledge as genuinely part of the Constitution.

But why should I have any use for a judge or justice who's willing to say that the Constitution means X, and then rule that it means Y?

[Sarcastr0]

The Brett Constitution is all fine and good, but there turns out to be no jurisprudence that can function in a republic which adopts one dude's take.

[David Nieporent]

I distinguish between precedent I "dislike", and precedent I "disagree with". For instance, I think the 16th and 17th amendments were very bad changes to the Constitution, but they WERE changes to the Constitution, in the exact sense that Roe was NOT a change to the Constitution.

Those aren't precedents.

[Brett Bellmore]

Upholding them creates precedents. And the point here is that correct precedents deserve to be upheld, but wrong precedents deserve nothing but being overturned. These judges aren't swearing an oath to precedent, they're swearing one to the Constitution.

[Sarcastr0]

This kind of rule of Brett not law is not taking originalism seriously.

To function as part of our republic, a system needs more than 'what Brett thinks.'

[not guilty]

Do originalists believe that de jure segregation in the District of Columbia is constitutionally permissible? Bolling v. Sharpe, 347 U.S. 497 (1954), was based on the Fifth Amendment, adopted in 1789. Was Bolling wrongly decided? Should Chief Justice Roberts, in his capacity as administrative head of the judicial branch, order installation of white and colored water fountains in the Supreme Court building?

[Noscitur a sociis]

In the hope that you're interested in good faith discussion (which I doubt from your last sentence). I think that Bolling is clearly wrong, and that the constitution does not forbid the federal government from racial discrimination. I also think that racial discrimination is bad at any level of government, and that we should amend the constitution to fix that problem.

I also don't think either of those are close calls.

[Sarcastr0]

We can't get there from here. You're a believer in precedent, and Bolling has become a load-bearing precedent, whose overruling would be substantially more radical than Chadha.

So even if you're right from a positivist conceptual position, because constitutional jurisprudence is not and has never been the lurching beast Thomas wishes it was, your end-goal seems unattainable in the short term.

[Andy Hawks]

Camp #5: Overturn Roe/Casey without overruling them by cabining them to their facts. Reaffirm Roe/Casey but only for those states that do not grant fetal personhood rights, while allowing states to grant such rights. Here's the full argument: https://www.supremecourt.gov/DocketPDF/19/19-1392/192609/20210916131541917_41445%20pdf%20Hawks.pdf

[cmcc_aus]

IANAL. But I would be happily within the #2 camp per Josh;s description, though not saying the definitions of the camps are easily drawn.
My view of Roe is that it invented a constitutional right out of a penumbra, but the penumbra, Privacy, set by Griswold, was a legitimate right to privacy. Roe extended in farther. , and granted the women specifically some extended rights, perhaps beyond that "penumbra,"
But most importantly, Roe did not acknowledge any "right to life" as somewhere within the penumbra of the XIV. It considered the fetus, and various inconveniences, and built them into the

[cmcc_aus]

trimester rule, and then into the undue burdens tests under Casey, but never acknowledging them as real Rights, just as considerations in balancing. Whereas abortion is a true right in the penumbra of privacy.
But European courts and laws mostly restrict abortion from somewhere between 13th week, and viability. Evidently, European law acknowledges some human rights for the fetus, and some sensibilities. And then some balancing.
What this court should do, I would hope, is to say that Roe erred, in failure to understand the fetus as a potential human with potential rights. But uphold Griswold, and some fundamental right to privacy. Allow for some balancing in that space.
But the 'undo burdens' test of Casey isn't enough, if a fetus has some fundamental rights.

[Doug Heffernan]

Wow, maybe for the first time, the sachs guy actually nailed it. Everything he wrote in this post seems right.

[Brett Bellmore]

Here's the issue, as I see it.

"Originalism" has been changing. It isn't anymore what it used to be.

Originalism was born of the glaring, blatant conflict between judicial holdings and what anybody could see the Constitution actually SAID. It was born in opposition to stare decisis, and irreconcilably conflicts with it: From an originalist perspective, the only proper thing to do with precedents that are contrary to originalism is to overturn them, there can be no peace.

But this makes legal practitioners really, really uncomfortable, and they've been trying to square that circle from the beginning. (The point of "squaring the circle", remember, is that it's impossible, and you need to remember that.) "Originalism" keeps colliding with precedent, and, damnably, precedent keeps winning.

What's going on here is a growing suspicion that what we call "originalism" has evolved so far from its origins as to no longer be worthy of respect. If what we today call "originalism" no longer would overturn evils such as Wickard or Roe, it has become what it fought, living constitutionalism in all but name.

Indeed, isn't that exactly what some modern 'originalists', such as Jack Balkin, have openly sought?

[Sarcastr0]

If what we today call "originalism" no longer would overturn evils such as Wickard or Roe, it has become what it fought, living constitutionalism in all but name.
This is just question begging. It really lays bear the instrumentalism at root in the GOP support for originalism. Makes sense, political parties are instrumentalist by design.

Originalism was born, or at least fueled, out of a conservative dissatisfaction with the post-Warren legal status quo. It was born as an ideological instrument allowing advocacy of change from that generally popular state of affairs without having to own the consequences. But nowadays the right is kinda into a lot of those consequences, and the party is a lot more owned by their base.

So now that it has turned out that the conceptual foundation does not get you to where Bret wants to go, he's looking to schism.
No matter that precedent mattering in Constitutional jurisprudence turns out to be the understood public meaning of the judicial power. No matter what drove this, was *not* legal practitioners, it was academic study. No matter that the change here is not some living constitutional evolution, but historical inquiry working out the truth behind the hastily laid out framework from the 80s.

To some, it's heresy, and it's time for a counterreformation and a return to the ignorant original originalism.
Because many outside of academia are not originalists in the conceptual sense, they are originalists in the original sense - as a partisan instrument of cover for radical departure from the judicial status quo.

So I expect to see more rhetoric like this - that originalism has been captured by the elites, and True originalism is the old style of declaring anyone who disagrees with your constitutional take a liar who secretly knows you're right.

[Brett Bellmore]

It seems to me that many inside academia are ONLY originalists in an academic sense, and I mean the sneering implications of that term. They've made what was supposed to be a legal doctrine to be put into practice, into an intellectual game without real world implications.

Why should I accept lectures about "the rule of law" from somebody who is capable of saying, "the law means this, but we should do that, instead."? Blackman isn't defending the rule of law, he's defending the rule of precedent, where precedent and the law conflict.

[Sarcastr0]

Originalism is a theory of interpretation - it has a rationale behind it's adoption. It's not one I agree with, but I understand it.

And you're jettisoning that rationale now that it's been examined and it's implications more deeply understood.

So now you have a jurisprudential doctrine without a rationale. Which makes it not really jurisprudence at all.

Jurisprudence is not about individual takes on the constitution, it's about how to interpret the constitution in a republic. Which requires humility. Sorry, but The Brett Take on the Constitution cannot drive an applicable doctrine. And neither can the Biden Take. You need a system of laws, not men.

YOU are the one saying 'the Founders means this, but we should do that instead.' And you call it originalism still. Good luck with that branding.

[Brett Bellmore]

"And you're jettisoning that rationale now that it's been examined and it's implications more deeply understood."

That's bullshit. This isn't a matter of the implications being "more deeply understood". It's a matter of some of the alleged practitioners deciding not to actually follow the implications when the going got tough.

[Sarcastr0]

This is driven by academics, not practitioners. Do you think Baude is a practitioner, or doing their bidding somehow?

[David Nieporent]

It was born in opposition to stare decisis,

No.

[Lee Moore]

Would it make sense for a Catholic to pick a new religion, just because of what some of the six Catholic Justices do in Dobbs? That'd seem really strange to me; so would picking new views on the content of the law.

It's not uncommon for religious people to lose their faith when it appears that God is not helping to prevent doom, disaster, war and pestilence, or to mitigate suffering and so on. (It is of course at least equally common for religious folk to keep their faith even under the most testing of trials.)

When God fails to stand between a believer and, say, and aircraft falling on her house and killing all her children, whatever else it may be, it's hardly irrational to revist whether God is really the kind of God you thought He was.

[which reminds me - my pronouns are He and Him]

An originalist, disappointed by the "Originalists" he has labored for decades to get onto the bench, might rationally conclude that originalism - or indeed any principled theory of interpretation and adjudiction that provides answers that the Judge might dislike - is too pure to work in the real world*. eg if these Justices are "our best guys and gals" and even they find it impossible to stick to their guns under fire, then maybe one needs a different and more practical theory and different people.

The different theory can be taken directly from the other side - do what benefits your own team, and the people who put you there.

The different people would be those, who may be kinda deplorable, and who certainly cannot be introduced in polite company, but who are at least ornery enough to withstand the bitter gales sweeping through the DC cocktail party circuit.

* not my own view, but not IMHO irrational

[apedad]

Which originalism are we talking about?

Original Intent
Original Meaning
Original Public Meaning
Semantic Originalism
Framework Originalism
Textualism
Structuralism

[Brett Bellmore]

For the most part they call converge, you realize that? Because people who intend things craft words that actually mean what they intend, per textualist standards, and then the public that is capable of reading them apprehends that meaning.

[Sarcastr0]

You think the modern American public knows the Founders intent of what the 'executive Power' meant?

[Brett Bellmore]

It's called "originalism" because the relevant public isn't today's, it's the public at the time the Constitution was written, the original public.

Would the people the founders were actually writing for have understood the intent? That's what you really need to establish.

[Sarcastr0]

Fair enough - I misread your 'the public.'

But as I've said a bunch of times, the public understood how constitutions worked based on England's, and thus knew this was not just a document for them.

All evidence is that the public at the founding expected judicial review to include a common law precedential component.

[Lee Moore]

Originalism is a subset of textualism. It specifies something that is not specified by the more general "textualism" - that to the extent that the original meaning differs from the current meaning, the former wins and the latter loses.

Intent is irrelevant, except to the extent that suppositions about intent are a reasonable tiebreaker to resolve ambiguity or vagueness, where the text is itself ambiguous or vague, and therefore does not precisely specify the answer. But this is not particular to originalism, it applies to any kind of textualism.

So "originalism" is just textualism, with one additional detail specified.

[Sarcastr0]

No one is currently arguing the Presidency doesn't have a minimum age of 35.

The Constitution turns out to be full of ambiguities, assumptions, and unspecified terms.

Textualism has won the day in the modern era. But you need more than textualism to handle literally all of the current judiciary controversies.

[Brett Bellmore]

"No one is currently arguing the Presidency doesn't have a minimum age of 35."

Only because they think they couldn't get away with it, that the Overton window hasn't moved far enough. There's text in the Constitution that's every bit as unambiguous, and being violated. Look at the 6th and 7th amendments, if you doubt that. Is "all" any more ambiguous than "35"? If you demand a number, how about "20"?

[Sarcastr0]

Your fictional villains aside, yes there is ambiguity in the 6th and 7the amendments.

[Brett Bellmore]

Again, bullshit. This is the problem with thinking ambiguity is a license to read whatever you want into the law: You see ambiguity everywhere.

In reality, there's no ambiguity at all about "In all criminal prosecutions". And the ambiguity about $20 is limited to how you deal with inflation, it certainly doesn't extend as far as just blowing the number off entirely.

[M L]

This rather brief document we call the Constitution doesn't unambiguously settle by its express terms, every question of law that arises under it. Duh.

Only a very poor thinker thinks that this somehow counts against interpreting the Constitution according to the original meaning of its text.

[Sarcastr0]

Thanks for the insult, ML, but I was replying to Lee Moore saying originalism is a subset of textualism, so your comment is rather off point.

[M L]

No insult. I'm saying that a certain argument is bad reasoning and poor thinking. Some people make that argument but maybe you're not.

Are you an originalist, solely in the sense that you agree that the original meaning of the text of the Constitution should be followed? In the sense that Kagan said she is an originalist?

[Sarcastr0]

I am not an originalist, even in the Kagan sense. I'm a purposivist, informed by modern definitional understanding of words like person and right and the like.

[David Nieporent]

Originalism is a subset of textualism.

Not so; an originalist need not be a textualist at all. An originalist says that the statute/constitutional provision means what it was understood to mean when enacted/ratified. A textualist says that the words, not the purpose, are what determine that meaning. Those are two independent concepts.

[Lee Moore]

The two concepts you describe are indeed independent. But only because your originalist is a straw man. As you say the words not the purpose matter, and if people of the time misunderstood what they'd written that is of no consequence.

Obviously for the purposes of puzzling out what the words did mean, evidence of what the people of the time thought they meant is relevant in cases of uncetainty or ambiguity. But that does not mean that contemporary understandings are controlling - they are simply indicative.

[M L]

"An originalist says that the statute/constitutional provision means what it was understood to mean when enacted/ratified"

And "it" is something other than the words? The statute is something other than . . . the statute?

"A textualist says that the words, not the purpose, are what determine that meaning."

Ah, there it is. In your formulation of originalism, the statute is not the statute. The statute is the "purpose."

In reality, the statute is the words, and the textualist question is what the words mean, and the originalist question is what the words meant when they were used in enacting the statute (as opposed to what they "mean" in the eyes of whoever wants to opine).

[Sarcastr0]

Telling you went with statute and elided Constitution.

They are not, and were not at the Founding, the same thing.

Statute drafters are assumed to strive to be maximally clear, particularly where they are directive. Because they are making policy.

Constitutions do not, as their job is to lay out a framework by which policy is made.

Not the same thing.

[M L]

No, it doesn't matter whether I said statute, constitution, or text. They are all the same thing.

So is it your view that "it" is, indeed, something other than the words? The Constitution is something other than . . . the Constitution? The Constitution is "the purpose"?

And also in your view this same reasoning does NOT apply to statutes, because "they are making policy" while a constitution "lays out a framework by which policy is made"?

Do I have your view correct?

[Sarcastr0]

Drafters intent may provide illumination to the meaning of a statute, since the drafter is generally trying to make things clear (and be clear where discretion is granted).

This is not true for a Constitution where ambiguity is oftentimes purposeful, and discretion is assumed.

The stilted language of statutes is generally absent in constitutions due to this different function.

[M L]

Your contention is supposedly that originalism is not a subset of textualism. Can you describe or point to the originalism that is not also textualism, in your view?

[Sarcastr0]

Anything that is solving an ambiguity in the text.

So, the part of it that is a theory of interpretation.

[dwb68]

I should point out, conservatives have been here before with Roe v Wade. Reagan/Bush had the chance to appoint lots of judges in the 80s. Conservatives in the 80s ran on getting it overturned. The result was O'Connor, Souter, and Kennedy joining the majority in Casey, lol.

People will survive and move on.

[eyeroller]

I've heard sentiments like these before, and I have to say, they puzzle the heck out of me.

Bear in mind, the folks who correspond with Josh Blackman are likely to be goofballs.

[Rev. Arthur L. Kirkland]

The Kardashians -- still more popular than originalism, more influential than originalism, more attractive than originalism, and possessors of a greater life expectancy than originalism.

Originalism is still a few months older than Kim Kardashian, though.

[M L]

This seems kind of pedantic.

One could subscribe to originalism as a theory and normative position for how things "should" be, while also concluding that the position has been rejected and is defeated, and then "giving up on" originalism as a current political aim to be achieved through voting and courts.

[Sarcastr0]

First, it's not that originalism has been defeated, it's that it hasn't *delivered* that is at issue.

Second, the 3L who kicked this whole thing off said: Otherwise I feel like I'll be forced, kicking and screaming, to give theories like "common good constitutionalism" a real hard look..

So no, this isn't about no longer pushing for originalist judges, it's about condemning everyone who disagrees as unprincipled and then abandoning said principle when it's no longer convenient.

[M L]

Maybe I'd have to understand more about what "common good constitutionalism" actually is. But it seems to me, if you conclude that you have lost on an issue, then you can give up on that issue and move on to something else.

Say there is a contractual dispute and the buyer of widgets feels very strongly they agreed the widgets would be delivered on the first of the month, seller says you'll have them on the 20th, buyer is very upset with the seller for lacking honor and principle. Yet seller can't deliver and can't be made to. Buyer no longer sends large payments in advance. Hypocrite for abandoning principle, right?

[Sarcastr0]

Adopting a theory is not generally thought of contractually. Particularly given the 'originalism is the only principled theory that exists' message.

In this analogy, who is this 'originalism contract' between?

[M L]

Just spitballing here, I'm imagining that someone could adopt a theory or believe it to be right, while also recognizing that nobody or not enough people agree with them to make it worth spending their time advocating or arguing for.

1. Suppose you have an argument about the rules of how to play a game, let's say pool. You are right, but everyone else in the room disagrees, so you play the game according to their rules. This is an analogy for how conservatives might think they ought to operate according to something other than originalism. Perhaps they would say, "well, originally it meant this or that, but as our law has evolved that no longer holds, and now this and that is important . . . "

2. The contract analogy is another one, and it may not fit as well directly. The analogy could be a breach of contract. The other party breaches, and now you're not bound by the agreement. No hypocrisy there and there's nothing unprincipled about that. Or more neutrally, suppose there's a genuine misunderstanding and poor drafting on crucial terms. There's no meeting of the minds, the counterparty will not meet your expectations, and therefore you're not obligated to meet your own conception of what your obligations would have been. Perhaps, you could elect to accept their understanding of the agreement and proceed accordingly, though you still disagree and are not obligated to do so.

3. A different angle. Say you are against millions in capital improvements your city wants to build on a natural park/nature reserve to make playgrounds etc. You campaign on the environmental effects and everything, vote comes, you lose. The project is happening. And now, you have something to say about just how the project will be designed, and how the funds are used, and you want to enjoy the place yourself. Someone says whoa, wait a minute, you said this whole thing was wrong and a bad idea. Now you want to be a part of it?