The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Thomas's majority opinion in Bruen provides a roadmap of how to use originalism based on analogical reasoning--that is, how to look at practices from prior to ratification of the Second Amendment. The Court also discusses, at some length, how to consider post-enactment practice. This issue has been subject to debate in originalist circles for some time. In Heller, for example, Justice Scalia considered gun restrictions that were enforced following the ratification of the Second Amendment. Justice Stevens criticized Scalia with a charge of hypocrisy: why would an originalist look at history that came after the Second Amendment's adoption? Scalia replied that originalists can rely on post-ratification history that confirms pre-ratification history. That confirmation suggests a continuity, in which the meaning of the text did not change over time. By contrast, post-ratification history is less useful if there was no continuity--that is, there was some later-in-time break in practice that suggested a shift in meaning.
In Noel Canning, Justices Breyer and Scalia disagreed about this point. Breyer suggested that post-ratification practice could potentially trump original meaning--at least where the text was ambiguous. Scalia, by contrast, rejected this "adverse possession" approach to constitutional law, in which the executive branch can aggrandize its power by violating the Constitution for long periods of time.
This debate has continued to simmer. Thankfully, Justice Thomas brought some clarity to the issue in Bruen.
Thomas explains that for originalists, "not all history is created equal."
We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them." Heller. The Second Amendment was adopted in 1791; the Fourteenth in 1868.
History that is too old may not be useful.
Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years. It is one thing for courts to "reac[h] back to the 14th century" for English practices that "prevailed up to the 'period immediately before and after the framing of the Constitution.' " Sprint Communications Co. v. APCC Services, Inc. (2008) (Roberts, C. J., dissenting). It is quite another to rely on an "ancient" practice that had become "obsolete in England at the time of the adoption of the Constitution" and never "was acted upon or accepted in the colonies." Dimick v. Schiedt (1935). . . . Sometimes, in interpreting our own Constitution, "it [is] better not to go too far back into antiquity for the best securities of our liberties," Funk v. United States (1933), unless evidence shows that medieval law survived to become our Founders' law. A long, unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law than a short-lived, 14th-century English practice.
Likewise, history that is too recent may also not be useful.
Similarly, we must also guard against giving postenactment history more weight than it can rightly bear. It is true that in Heller we reiterated that evidence of "how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century" represented a "critical tool of constitutional interpretation." We therefore examined "a variety of legal and other sources to determine the public understanding of [the Second Amendment] after its . . . ratification."
Next, Justice Thomas turns to a concept known as "liquidation." In some cases, post-enactment practice can settle the meaning of ambiguous texts. Here, the Court favorably cites Caleb Nelson and Will Baude, who have written on this topic.
And, in other contexts, we have explained that " 'a regular course of practice' can 'liquidate & settle the meaning of ' disputed or indeterminate 'terms & phrases' " in the Constitution. Chiafalo v. Washington (2020); see generally C. Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). In other words, we recognize that "where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision." NLRB v. Noel Canning (2014) (Scalia, J., concurring in judgment); see also Myers v. United States (1926); Printz v. United States (1997).
Still, Justice Thomas pour some cold water on liquidation. He relies on then-Circuit Judge Kavanaugh's opinion in Heller II:
But to the extent later history contradicts what the text says, the text controls. "'[L]iquidating' indeterminacies in written laws is far removed from expanding or altering them." Gamble v. United States, (2019) (Thomas, J., concurring); see also Letter from J. Madison to N. Trist (Dec. 1831), in 9 Writings of James Madison 477 (G. Hunt ed. 1910). Thus, "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text." Heller (Kavanaugh, J., dissenting); see also Espinoza v. Montana Dept. of Revenue (2020).
Thomas and Kavanaugh are emphatically correct. And here, the Court rejects Justice Breyer's approach to liquidation, in which later-in-time practice can overcome clear text. Once again, the new conservative Court is clearing the brush of non-originalist doctrine.
Justice Barrett wrote a concurrence in Bruen. She has some concerns about liquidation:
I join the Court's opinion in full. I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. See, e.g., Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003); McConnell, Time, Institutions, and Interpretation, 95 B. U. L. Rev. 1745 (2015). The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one).
Like in Fulton, the former Professor pens a concurrence to raise some questions:
To name just a few unsettled questions: How long after ratification may subsequent practice illuminate original public meaning? Cf. McCulloch v. Maryland (1819) (citing practice "introduced at a very early period of our history"). What form must practice take to carry weight in constitutional analysis? See Myers v. United States (1926) (citing a "legislative exposition of the Constitution . . . acquiesced in for a long term of years"). And may practice settle the meaning of individual rights as well as structural provisions? See Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019) (canvassing arguments). The historical inquiry presented in this case does not require us to answer such questions, which might make a difference in another case.
In the Emoluments Clauses litigation, Seth Barrett Tillman and I discussed the methodology to consider post-ratification history. I wrote about our approach in an essay for the South Texas Law Review, titled Defiance and Surrender. Here is an excerpt:
President Washington and other Founders who were his successors during the Early Republic openly received, accepted, and kept diplomatic gifts and other gifts from foreign governments and their officials without seeking or receiving congressional consent. These early presidents acted as if they were not bound by the Foreign Emoluments Clause.5 However, Presidents Jackson, Tyler, Van Buren, and Lincoln declined to personally accept foreign gifts. These later presidents, other scholars contend, acted as if they were bound the Foreign Emoluments Clause. Courts might take the intuitive position that because all presidents have equal authority, the latter presidents ought to be preferred. The Supreme Court has taught a different lesson: modern practice does not automatically overcome earlier precedents. There is an additional principle that informs this inquiry. When considering competing streams of historical practice by the three branches, courts favor purported defiance over voluntary surrender. Disputed assertions of power by Washington and his successors in the Early Republic are more probative about the scope of the Foreign Emoluments Clause than voluntary acquiescence by Jackson and post-Jackson presidencies.
Seth and I will discuss this issue at some length in Part III of our ten-part series. And we will address some of Barrett's questions, at least indirectly.