A Tale of Two Originalists

Justice Gorsuch v. Justice Thomas in Brackeen.

On the Supreme Court, the two most committed originalists are Justices Thomas and Gorsuch. Indeed, when Justice Thomas writes a separate opinion, urging the Court to return to first principles, the member most likely to join him is Justice Gorsuch. Still, these two originalists do not always agree. Perhaps one of the most striking examples of this discordance is Brackeen. Justice Gorsuch wrote a vigorous originalist decision which contended that ICWA was squarely supported by Congress's enumerated powers. And Justice Thomas wrote a vigorous originalist decision which argued that ICWA was beyond Congress's enumerated powers.

In many regards, this debate reminded me of Zivotofsky v. Kerry (2015), where Justices Scalia and Thomas vigorously disagreed about whether the recognition power belonged to Congress or to the President. In that case, there were so many respectful, but pointed back-and-forths between Scalia and Thomas. Here Scalia accused Thomas of favoring King George over George Washington:

Whereas the Court's analysis threatens congressional power over foreign affairs with gradual erosion, the [Thomas] concurrence's approach shatters it in one stroke. The combination of (a) the concurrence's assertion of broad, unenumerated "residual powers" in the President (b) its parsimonious interpretation of Congress's enumerated powers; and (c) its even more parsimonious interpretation of Congress's authority to enact laws "necessary and proper for carrying into Execu- tion" the President's executive powers; produces (d) a presidency more reminiscent of George III than George Washington.

And Thomas called Scalia a legislative supremacist:

JUSTICE SCALIA disapproves of my "assertion of broad, unenumerated 'residual powers' in the President," but offers no response to my interpretation of the words "executive Power" in the Constitution . . .

And his decision about the Constitution's resolution of conflict among the branches could itself be criticized as creating a supreme legislative body more reminiscent of the Parliament in England than the Congress in America.

At the time, I wrote, "These intellectual giants rarely duel like this, but this was a battle worthy of the ages." But if Zivotofsky was a clash of the titans, Brackeen was like two boats passing each other on the River Styx. Justice Gorsuch never cited Justices Thomas, and Justice Thomas never cited Justice Gorsuch.

Without any sort of back-and-forth, readers will have a tough time figuring out which originalist decision is stronger. Indeed, critics of originalism can seize on these two opinions as evidence that originalism is bunk–an indeterminate modality that can reach two diametrically opposite conclusions.

I've now finished reading and thinking about the entire decision. It took me a while. For those who care about originalism, Brackeen is probably the most significant case of the term. I'll put aside the commandeering issue, since neither Justice Gorsuch nor Justice Thomas engages it. Rather, I'll focus on the question of whether ICWA is within Congress's Article I powers. All parties agree that the treaty-making power is irrelevant. And Justices Gorsuch and Thomas both seem to reject the nebulous "plenary" power doctrine, which is not tethered to any constitutional text. ICWA, to the extent it is within Congress's Article I powers, can only be supported by Article I, Section 8, Clause 3:

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

In United States v. Lopez (1995), Justice Thomas wrote that the word "commerce" in the Interstate Commerce Clause referred to "trade or exchange—not all economically gainful activity that has some attenuated connection to trade or exchange." And recently, Justice Gorsuch joined Justice Thomas's concurrence in Sackett, which reaffirmed that definition of "commerce" from Lopez. So as best as I can tell, Justice Gorsuch agrees with the methodology Justice Thomas used to reach that definition of "commerce"–namely, original public meaning originalism.

However, Justices Thomas and Gorsuch disagree about the meaning of "commerce" in the Indian Commerce Clause. Justice Gorsuch contends the meaning of "commerce" is broader with regard to Congress's powers to regulate Indian tribes. This analysis, which stretches about two pages, appears in Part II-C-2 of the concurrence. Part III-A-2 of Justice Thomas's dissent provides the counter.

I will walk through several points on which Gorsuch and Thomas disagree.

Interstate "Affairs" and Indian "Commerce"

During the Constitutional Convention, there was a proposal to give Congress the power to regulate "Indian Affairs." (The Articles of Confederation used such language). But this proposal was rejected, twice. (Lorianne Updike Toler wrote a fascinating article and post on this history.) What inference should we draw from this rejection? Justice Thomas observed that the word "affairs" is broader than the word "commerce." Thomas concluded, "whatever the precise contours of a freestanding 'Indian Affairs' Clause might have been, the Founders' specific rejection of such a power shows that there is no basis to stretch the Commerce Clause beyond its normal limits." Justice Gorsuch, however, favorably cites scholarship from Professor Jack Balkin, who expressly equates Indian "commerce" with Indian "Affairs."

 Congress has the authority to manage "all interactions or affairs … with the Indian [T]ribes" and foreign sovereigns—wherever those interactions or affairs may occur.

Justice Thomas countered that "when the Founders referred to Indian 'affairs,' they were often referring to diplomatic relations—going far afield of their references to Indian 'commerce.'"

Randolph's Bank of U.S. Opinion

Justice Gorsuch writes that the Framers acknowledged that the Interstate Commerce Clause, the Foreign Commerce Clause, and Indian Commerce Clause have "very different applications." To support this proposition, Gorsuch cites one piece of evidence: Attorney General Edmund Randolph's opinion concerning the constitutionality of the Bank of the United States. Randolph's opinion identified the possible sources of constitutional authority for the Bank of the United States. Randolph, quoting from Article I, Section 8, wrote that "Congress have also power to regulate commerce with foreign Nations, among the several states, and with the Indian tribes." Randolph then listed separately (i) the "heads of this power with respect to foreign nations," (ii) the "heads of this power with respect to the several States," and (iii) the "heads of this power with respect to the Indian Tribes." Under this third head, Randolph included (a) the power "to prohibit the Indians from coming into, or trading within, the United States," (b) the power "to admit them with or without restrictions," (c) the power "to prohibit citizens of the United States from trading with them," and (d) the power "to permit with or without restrictions."

Gorsuch's implication seems to be that Randolph contended that the meaning of the word "Commerce" can differ in the Interstate Commerce Clause and the Indian Commerce Clause. But Randolph was not discussing the meaning of "Commerce." He was demonstrating how Congress could regulate the "Commerce" with the Indian tribes. The items he mentioned all related to the movement of people and commodities, to and from the tribes. Indeed, Randolph's analysis undermines Gorsuch's claim to an expansive reading of the Indian Commerce Clause power. Justice Thomas made this point in Footnote 7 of his dissent. Thomas wrote that Randolph, who "appears to have used the term [Commerce] more loosely (in the context of an opinion on the constitutionality of a national bank) focused only on trade and immigration restrictions."

Interstate "Commerce" and Indian "Commerce"

Justice Thomas explains that the word "Commerce" would "naturally" have the "same meaning" with respect to interstate commerce, Indian commerce, and foreign commerce. Here he cites Professor Sai Prakash's article that promotes intrasentence uniformity. Justice Thomas observed that the parties and amici have not presented "any evidence that the Founders thought that the term "Commerce" in the Commerce Clause meant different things for Indian tribes than it did for commerce between States."

Justice Gorsuch counters that "Indian commerce was considered 'a special subject with a definite content,' quite 'distinct and specialized' from other sorts of 'commerce.'" Here, Justice Gorsuch cites Professor Gregory Ablavsky, who surveyed founding-era usage, and concluded that Indian commerce "took on a broader meaning than simple economic exchange." As best as I can tell, Professor Ablavsky's brief did not perform any corpus linguistic analysis. Rather, he cited what Justice Thomas referred to as "a few, fairly isolated references to 'commerce' outside the context of trade, usually in the context of sexual encounters." For example, the Right Honorable Lord Viscount Cherington observed, "I firmly believe my disorder was contracted by too free a commerce with Indian women." Professor David Engadhl famously dubbed the Supreme Court's "jurisdictional hook" framework as the "herpes theory" of jurisdiction: Items that travel in interstate commerce forever retain that trait. If only Engdahl knew about the Cherington's use of commerce–the analogy would work even better.

Justice Thomas then cited a host of statements from Washington, Jefferson, and others to show that "When discussing 'commerce' with Indian tribes, the Founders plainly meant buying and selling goods and transportation for that purpose." For good measure, Footnote 7 includes another raft of entries. When determining original meaning, by corpus lingusitics or otherwise, it is useful to determine a predominant sense of a word. Thomas's position provides far more evidence of the majority sense.

"Commerce" As Intercourse

Long-time readers of this blog will recall an important article written by Professor Jack Balkin, titled "Commerce." Balkin argued that "Commerce" should be understood more broadly to include "intercourse." And Gorsuch, citing Balkin, concluded that "Congress has the authority to manage 'all interactions or affairs … with the Indian [T]ribes' and foreign sovereigns—wherever those interactions or affairs may occur." Here is the full passage from Balkin's article:

The interaction theory defines "commerce" according to its broadest eighteenth century meaning as "intercourse." The primary focus of the Clause is "commercial intercourse between nations, and parts of nations, in all its branches."81 Nevertheless Congress can also regulate other forms of interaction, like communications and transportation networks, whether they are used for commercial or noncommercial purposes. Under the interaction theory, Congress has the power to regulate all interactions or affairs with foreign governments and with the Indian tribes. Congress also has the power to regulate interactions or affairs among the several states. This would include activities that are mingled among the states or affect more than one state, because they cross state borders, because they produce collective action problems among the states, or because they involve activity in one state that has spillover effects in other states.

This was precisely the sort of commerce clause argument that would have supported the individual mandate of the Affordable Care Act.

Justice Thomas offers a brief rejoinder to the Balkin theory of intercourse:

Nor is the definition of "commerce" as "intercourse" instructive, because dictionaries from the era also defined "intercourse" as "commerce." E.g., Johnson; Allen. Even some of these same scholars concede that the Founders overwhelmingly discussed "trade" with Indians—far more than either "intercourse" or "commerce" with them. See Ablavsky 1028, n. 81.

More broadly, Balkin's theory of "intercourse" was not constrained to the Indian Commerce Clause. He would extend his theory to the Interstate Commerce Clause. And Balkin expressly defends the New Deal precedents as an originalist matter:

I disagree both with originalists and with their critics because I do not believe that the New Deal is inconsistent with the Constitution's original meaning, its text, or its underlying principles.

Is Gorsuch willing to follow Balkin all the way to 1937? He does hint at a way to distinguish away Balkin's work.

There are some textual differences in Article I, Section 8, Clause 3. The Interstate Commerce Clause applies to commerce "among" the several states, while the Indian Commerce Clause refers to commerce "with" the Indian Tribes. Gorsuch reasons that this varied "language suggests a shared framework for Congress's Indian and foreign commerce powers and a different one for its interstate commerce authority." And, Gorsuch concludes, again citing Balkin, "'Congress's powers to regulate domestic commerce are more constrained' than its powers to regulate Indian and foreign commerce."

I am a big fan of Jack Balkin's work, but I am still partial to Randy Barnett's criticism of the "intercourse" theory. Barnett did not discuss the Indian Commerce Clause aspect, so we do not have a clear point-counterpoint on this issue. But on balance, I am hesitant to read Indian commerce as Indian "Affairs." Again, the Constitutional Convention expressly rejected an Indian affairs provision of the Constitution. Yet, Balkin, and Gorsuch apparently, would still vest Congress with that power.

Liquidation?

Justice Gorsuch contends that even if "the Constitution's text left any uncertainty about the scope of Congress's Indian commerce power, early practice liquidated it." He cites several laws governing Indian Tribes that "plainly regulated non-economic" interactions.

Justice Thomas counters that this historical practice is consistent with that original meaning. Specifically, he contends that these non-economic interactions were in the context of regulating foreign affairs with the Tribes. This "residual" power need not be tied to the Indian Commerce Clause. (Here, we have a redux of Thomas's argument in Zivotofsky). Thomas wrote:

 As discussed above, the Founding-era Government undertook a wide array of measures with respect to Indian tribes. But, apart from measures dealing with commerce, most (if not all) of the Federal Government's actions toward Indians either treated them as sovereign entities or regulated citizens on Indian lands who might threaten to breach treaties with Indians or otherwise disrupt the peace.

By contrast, ICWA's regulation of adoption was domestic, rather than one of foreign affairs.

There is a vigorous debate among originalists about how and when liquidation comes into play. In Brackeen, Justice Gorsuch's fixation on post-enactment practice–especially Part I–goes far beyond liquidating original meaning.

Conclusion

Justice Gorsuch has certainly given this issue some thought, but I see Brackeen as deviating from generally-accepted originalist methodology. I do not think he makes the case that the word "Commerce" is broader with regard to Indians, than with regard to interstate commerce. The words "with" and "among" are distinct, but that doesn't suffice to reject principles of intrasentence uniformity. Moreover, I would need to see a far more sophisticated corpus analysis to displace the predominant sense of what "commerce" meant in 1789. In addition, we have to contend with the Convention's express rejection of an Indian Affairs Clause, which shrank, rather than expanded Congress's powers. Finally, it raises huge red flags that Justice Gorsuch gladly signed onto the "intercourse" theory that is premised by Balkin's self-professed "living originalism," and rejected the work of Professor Robert Natelson on the Indian Commerce Clause. I've been in this business long enough to know not to challenge Natelson's work, unless I have really strong evidence. But Gorsuch did not even engage Natelson. Nor did Justice Gorsuch even respond to Justice Thomas.

Some progressives have suggested that Justice Gorsuch's unflagging fidelity to native tribes is due to his originalist jurisprudence. I think that theory only makes sense if Gorsuch follows originalist best practices. But he hasn't. Much the same can be said about his half-way textualism in Bostock. In the Indian and LGBT cases, we are not dealing with a Justice whose jurisprudence constrains his priors. Textualism and originalism have not tied him to the mast. Rather, I think we have a Justice whose priors line up perfectly with his jurisprudence.