The 2023 Scalia Lecture: Beyond Textualism?

On Monday, I delivered the 2023 Scalia Lecture at Harvard Law School. My title was "Beyond Textualism?" and I discussed "the reductio ad Bostock"; the role of substantive canons and the major questions doctrine; Erie, legal realism, and the common law; and the original meaning of the Privileges or Immunities Clause -- in roughly that order.

I hope to publish a version of this in due course, but in the meantime, you can watch it here (with a short introduction by Dean John Manning) if you are interested:

Comments

[JimM47]

Well said.

[Brett Bellmore]

I agree, it was an excellent talk.

[Mannix]

It is very important to understand Privileges and Immunities limitations that was well highlighted by its drafter that said it had NO operation on a citizen of a state residing within their state of rsidence. “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

Said the 14A’s Sec. 1 primary drafter: “Nothing is more vital to the people’s liberty and freedom than that immortal amendment that reads ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ I shall declare again the recent (14th and 15th) amendments made no change in this respect.”

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yet I remember reading both opponents and proponents agreeing that the 14th Amendment would apply the bill of rights to the states, and the opponents hated the idea that blacks would have the right to keep and bear arms, for instance. Both sides agreed on that, they only disagreed on whether that was good or not. It was meant to stop the former Confederates from continuing to treat blacks as slaves in all but name. It was also a reaction to the Supreme Court declaring the Civil Rights Act unconstitutional, and it had done much the same.

[Bob from Ohio]

"It was also a reaction to the Supreme Court declaring the Civil Rights Act unconstitutional"

14A in 1868
Civil Rights Act in 1875
Supreme Court declaring the Civil Rights Act unconstitutional in 1883

[SRG]

There was one in 1866
https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes, that's the one I meant.

[Brett Bellmore]

"It is very important to understand Privileges and Immunities limitations that was well highlighted by its drafter that said it had NO operation on a citizen of a state residing within their state of residence."

That is NOT what that means! Not remotely. If it had really meant that, there scarcely would have been any point in enacting it, or in the former slave states resisting its enactment, since they could have continued to treat black citizens like dirt, including denying them freedom of travel, so that they could be trapped.

To be sure, it didn't repeal the 10th amendment. What it did was alter the substance of "nor prohibited by it to the States".

Where the Comity clause required states to treat visiting citizens of other states as well as they would treat their own citizens, the 14th amendment required them to treat everybody as American citizens were normally treated. It established a national floor on liberties.

[The Margrave of Azilia]

This is a case where originalism doesn’t seem to work as advertised.

There’s a text of the P&I clause, and there’s speeches about the text. To paraphrase Felix Frankfurter, the text is the part that was ratified, not anyone’s speech.

But unlike Frank ‘n Furter, I’d say the text and context indicate that privileges and immunities are broad – Corfield v. Coryell, Taney’s “parade of horribles” about the consequences of black citizenship and the consequent recognition of their privileges and immunities, and treatise-writers discussing the rights of citizenship.

None of this is decisive, and interpreters have to interpret. So if there’s an ambiguous clause which can reasonably be interpreted to protect the basic rights of American citizenship, shouldn’t it be read that way?

But as far as speeches on an omnibus amendment offered for an up-or-down vote, the dangers of "legislative history" - supporters giving exaggerated views about their own laws in order to bias future interpretation - warns against attempts at "originalism."

[Brett Bellmore]

Seems to me that it works well if practiced.

The text may be what was ratified, not the debate, but since they seem to point in the same direction, extensive rights not limited to the BoR, being incorporated through the P&I clause, what's the problem?

The problem is just the reluctance of present practitioners to admit that Slaughterhouse has to be utterly repudiated. It may be old, but it's an old mistake. (And calling it a "mistake" is polite, it was deliberate judicial malpractice.)

Unfortunately, Thomas seems to be the only Justice ready to bite that bullet.

[Religion and Politics, my life]

Naaah, that is you arguing on no deep information

Kurt Lash “privileges or immunities of citizens of the United States” are limited to the rights enumerated in the text of the Constitution, and do not include any unenumerated rights.

[wolfefan]

Do we need to take a drink even if no one actually says "Bingham"?

[Frank Drackman]

Augustus Gloop really let himself go.

[JimM47]

Morrissey has really let himself go.

[EscherEnigma]

Beyond Textualism?

Dude, y'all have never been persuasive that claims of textualism were anything more then pretexts in the first place.

That textualism is dropped the moment it doesn't lead to the conclusion judges want is 100% consistent with the theory that it was always a pretext.

[The Margrave of Azilia]

As I understand it, there’s a law against sex discrimination in employment, and a supplemental law prohibiting sex discrimination in federally-funded programs (like colleges) *and* requiring colleges to have women’s sports.

If sexual discrimination is given the allegedly literal meaning assigned it in Bostock, that opens the possibility that men have to be on women’s sports teams – since the relevant statutes in each case mention sex discrimination – and that would, as a matter of textualism, throw the whole women’s-sports-teams provision into confusion and contradiction. Hypothetically.

[TheAmazingEmu]

There was a series of articles on this specific website that addressed this issue. Not only is there a carve out for sports, there's a mandatory carve out for sports.

[Religion and Politics, my life]

And here you serve up the illogicality of your position

Men are not women, women are not men. Your whole position is what is called Nominalism
“Nominalism holds that natures or essences do not exist in reality but are only ‘names’ or contrivances inhabiting the mind, with no correlation to what exists outside of it.” Robert Reilly