The Volokh Conspiracy

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Kavanaugh on Halfway Originalism

An insightful point from oral argument in National Pork Producers v. Ross -- and its implications.


The so-called "dormant" Commerce Clause restricts state authority over interstate commerce, even though the text of the Commerce Clause is a grant of authority to Congress.

While there are some originalist defenses of this doctrine, and much evidence that something in the Constitution is supposed to restrict state authority over interstate commerce, a common opinion among many originalist judges and scholars is something like what Justice Thomas argued in his dissent in Camps Newfound: the Commerce Clause should not be read as a restriction on state authority, and instead those restrictions should come from the Import/Export Clause, Article IV's Privileges and Immunities Clause, and the like. (Thomas relies among other things on the great William Crosskey, one of my predecessors as a constitutional law professor at the University of Chicago, and long overdue for a revival.)

This point loomed in the background of the recent oral argument in National Pork Producers v. Ross, the dormant Commerce Clause challenge to California's ban on poorly-housed pork. (For discussion, here is a recent podcast episode.) If the dormant Commerce Clause is on shaky ground, then perhaps it should not be extended to the kinds of extraterritoriality problems in that case.

Justice Kavanaugh had an interesting and insightful rejoinder to that kind of skepticism:

JUSTICE KAVANAUGH: To the extent we have historically overinterpreted the Commerce Clause, I think you were getting at something that the amicus briefs also point out, is that you couldn't correct that without correcting also a historical underinterpretation perhaps of the export/import clause and the privileges and immunities clause. And Justice Thomas and Justice Scalia wrote about the export/import clause, and others have written about the privileges and immunities clause. Correct?

. . . the point there . . . is the principle behind it is embedded in our Constitution, even if mislabeled. . . You couldn't just say, oh, let's get rid of all those cases because they're mislabeled without thinking about the other clauses . . . [that] might pick up that same principle.

This is a good point—reconsidering some of the Supreme Court's potentially mistaken precedents while holding constant some other potentially mistaken precedents could actually take the Court further away from the correct principles and results. This is something I wrote about a few years ago under the general label of "the problem of constitutional law and the second best" and better-known under Justice Alito's label of "halfway originalism." So it's nice to see Justice Kavanaugh attuned to the problem.

But here's the thing. The Court does sometime do exactly what Justice Kavanaugh criticizes here—decide a case that it thinks is mistaken under one Clause without thinking about other clauses that might pick up the same principle.

To take an example that I have been obsessed with, the Supreme Court is repeatedly narrowing and on the verge of finally obliterating the direct cause of action for damages under the 4th Amendment known as Bivens. But as many people have pointed out, that same principle—the availability of a tort remedy against federal officers who violate constitutional rights—may be embedded in other parts of the Constitution, which would protect common law rights against abrogation by federal law. (See my earlier blog post, Mike Ramsey's blog post, a related claim from Vasquez and Vladeck, the last few pages of this amicus brief, etc.) Yet the Supreme Court curtails the Bivens remedy without ever mentioning, worrying about, or granting cert. on the other problem.

If Justice Kavanaugh is right, then the way the Court is handling Bivens is wrong—and there are plenty of other examples of this problem, ranging from the exclusionary rule to the incorporation of the bill of rights and the privileges or immunities clause, to the commerce clause, to Erie RR v. Tompkins. So it's great to see attention to this problem, but I'll be even more excited to see a consistent approach in dealing with it.