The Divisions Among the Court's Originalists

Professor Joel Alicea on how to understand what may be the most important jurisprudential divisions on the Supreme Court.

Professor Joel Alicea has a thoughtful and perceptive op-ed in the New York Times, "The Supreme Court Is Divided in More Ways Than You'd Think," discussing the issues that divide the Supreme Court's five originalist justices. It begins:

When Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court during President Trump's first term, originalism found itself in an unfamiliar and challenging position.

All three of the court's new members were avowed originalists, holding that judges ought to interpret the Constitution according to the meaning it had when it was ratified. As a result, a majority of the justices, including Clarence Thomas and Samuel Alito, now subscribed to this theory. Originalism, long seen as an insurgent force at the Supreme Court, had become its reigning philosophy.

For the originalists on the court, the shift from backbenchers to decision makers brought new responsibilities and presented new difficulties. Problems that had mostly been hypothetical debates within the court's originalist minority became central questions of constitutional law. How readily should an originalist court overturn a precedent at odds with the original meaning of the Constitution? What should an originalist judge do when the original meaning of the Constitution does not fully address a modern dispute?

As Professor Alicea notes, the five originalist justices often disagree on a range of issues that can affect how cases are decided and how quickly the Court's doctrine changes, including the extent to which the Court should respect non-originalist precedent and whether originalism, on the margin, should be more focused on constraining judicial discretion or on fulfilling the original meaning of the Constitution.

These differences matter because in a fair number of high-profile cases, such disagreements may control case outcomes and the contours of case holdings. Writes Alicea:

For originalists such as myself, these fractious dynamics pose the greatest threat to the urgent effort to restore the rule of law that was so badly damaged by the Supreme Court in the 1960s and '70s under Chief Justices Earl Warren and Warren Burger. But for all observers of the court, regardless of judicial or political inclination, these disputes are key to understanding its decisions.

He concludes:

This Supreme Court, contrary to accusations that it is lawless and political, is more committed to a particular constitutional theory than any Supreme Court has been since at least the 1940s. Understanding the deep theoretical roots of the conservative justices' agreements and their disagreements is crucial to appreciating what has happened since Mr. Trump transformed the court during his first term — and what may happen in the years to come.

Comments

[bye]

I like Professor Joel Alicea and I've heard him speak several times. I don't think he understands a couple things

1) So NOW he's getting on the Natural Law bandwagon but this has long been the view of many scholars going back to Corwin. It isn't the congruence of Natural Law to Originalism ,it's that Natural Law is behind all our organic laws.

2) In his "Constitutional Theory and the Problem of Disagreement" he mentions Cicero. Does he not know that Cicero is in his Catholic Catechsm saying that disagreement should not exist for many first principles, or natural law.

Everything seems to fall to a lack of FIRST PRINCIPLES, the inviolable self-evident truths, which if you have become morally depraved you might not see or , better, you will say that was the morals of the Founders but not of today. In what sense is it morals if you are making them up. The sexual pervert is going to say "I like what I am doing and that justifies it"

[JasonT20]

The sexual pervert is going to say “I like what I am doing and that justifies it”

The meaning of "sexual perversion" is understood, in its formal use, in reference what is considered normal and acceptable by society. In colloquial use, a "pervert" can mean anything from someone that has "dirty thoughts", to someone that seeks a willing adult partner to indulge in an unusual kink, and finally to a sexual predator that targets prepubescent children. The former two types of "pervert" would fall under the "none of your goddamned business" category, the latter is among the worst crimes we can imagine short of murder. (With some people feeling that it deserves the same punishment as murder. I don't share that point of view, but I won't call it unreasonable, either.)

So, what first principles do you think govern sexual behavior in the frame of Natural Law?

[Supremacy Claus]

Add this article to the list of supernatural lawyer doctrines. The lawyer is reading the minds of dead people. Add it to mind reading of drunken criminals, foreseeing rare accidents, and a model of proper conduct that is fictitious, but a thinly disguised avatar of Jesus, in violation of the Establishment Clause.

[MaddogEngineer]

Nobody is reading dead people's minds. We're reading the words that wrote while alive, according to contemporaneous definitions and other supporting context. It's weird because I always thought that's exactly what lawyers and judges did.

It's like understanding that the phrase "the quick and the dead" is not referring to being fast. No confusion, despite the loss of the archaic meaning of "quick" as living. Yet we can still access that older context.

[Stephen Lathrop]

MaddogEngineer — No, you cannot directly access founding era context, not for almost any text from that era. Nor can anyone else. Antique context is promptly forgotten. The texts that context inflects far outlive their contemporaneous influences.

Context is not the definitional meaning folks assign to English language words. Nor is it a process to adjust definitions to account for differences in antique usage.

Context is the sum of the entire relevant circumstance which past words responded to, and which inflected the words' meanings. It requires accurate inferences informed by laborious study to reconstruct forgotten context.

Context is about place, persons, time, sequence, culture, knowledge (accurate or otherwise), occasion, issues, and purpose, among other considerations. It includes every kind of received wisdom and characteristic expectation pertaining to contemporaneous circumstances.

But context also excludes everything destined to happen afterward. Nothing known later, discovered later, done later, or happening later is any part of a former context. Folks then had no better insight into their era's future than we have insight into our own future.

That last bit has a trap in it. Almost everything stored up in present-minded context during our current era is traceable to circumstances, discoveries, insights, occurrences, etc. which post-date the founding era. The long interval between 1760 and the present has been stuffed with influential occurrences which molded what people think now. None of those thoughts—generated during that interval before the present and after the founding—inflected founding era context at all. But they are the very basis of present-minded insight.

What did influence founding era context were all the occurrences during a similarly lengthy interval stretching backward through time, to a point of beginning circa 1500. About those myriad founding-era-influential details present-minded thinking is typically all but completely ignorant. Historical scholars sometimes study those things. Judges and lawyers typically never remember any of them.

So present-minded insight not only does not furnish tools equal to the task to decipher founding era context. It also is mismatched to the task, in a way guaranteed to deliver without warning a cascade of spurious interpretations, based on information demonstrably irrelevant to the founding era.

[JasonT20]

How readily should an originalist court overturn a precedent at odds with the original meaning of the Constitution? What should an originalist judge do when the original meaning of the Constitution does not fully address a modern dispute?

I’d add two questions that should be answered before those are even considered:

How can originalist judges be sure that they correctly understand what the original meaning of the text was? (The obvious follow up being, what should they do when they aren’t sure.)

How can originalist judges be sure that they aren’t being selective in their analysis so as to reach a preferred solution?

For originalists, perhaps those questions have been long settled. In which case, if he was speaking to an audience of originalists, then maybe Professor Alicea didn’t feel the need to pose those questions along with the others.

But I am neither a lawyer, nor do I follow or subscribe to originalism as an amateur. I have only followed this blog for several years, reading the posts, comments, and making comments of my own. I am no closer to understanding how originalists answer those two questions than when I first heard of originalism.

The second question is a general one about how judges curb their own biases. I ask it in a discussion about originalism because of how often originalists insist that originalism is a neutral method of interpretation (some even seem to think that it is the only neutral method of interpretation).

It strains credulity to argue that originalism is neutral in its methods and results when originalism only seems to be used in judicial opinions when it leads to results that line up with the political leanings of the judges (or at least the party of the President that appointed them). It is a very rare exception that I see any judge or justice appealing to originalism in an opinion that cuts against their perceived partisan preferences. I can only think of a couple of opinions from Gorsuch off the top of my head, and I could be thinking of ones that were based on textualism and not originalism.

The first question is actually more important and specific to originalism, though. I’m not sure, but I’d feel fairly confident that few lawyers learn more of history than they need to in order to study law effectively. I really doubt that they learn the methods of studying history very often. I don’t see many judges that had extensive academic, scholarly experience prior to becoming a judge, so that really makes it seem unlikely that more than small handful of judges studied history extensively enough to be justifiably confident that they would get original meaning correct a high percentage of the time.

I’ll leave it to Stephen Lathrop to go into excruciating detail on that point, but I fully agree with him in the principle of what he says on that.

[JasonT20]

Oh, and really, these have always been so obvious to me, that I even forgot these questions that should be answered about originalism even before those others that I asked:

To what extent, if any, was the Constitution understood at the time by those that ratified it to demand that their understanding would always be how the text should be interpreted?

If there was any such understanding, to what extent was it shared among those that voted to ratify it?

To what extent would the opinions and understanding of those that opposed ratification matter in originalist interpretations?

[Stephen Lathrop]

To those excellent questions I would add: what historical evidence can be found that when various states ratified the Constitution and Bill of Rights, they did not understand some specific provisions in ways at odds with each other? Were reasons for ratification sometimes so various that no modern legal synthesis can be called a valid summary of what happened?

For instance, what if Virginia and Pennsylvania understood the 2A oppositely with regard to the question of a right to personal self-defense with a gun? What can a would-be originalist make of that? If historical sources disclose agreement apparent on a militia right, but mutually opposing reasons for ratification with regard to self-defense, what is the legitimate originalist interpretation which results?

I insist that such a case—decided on strictly originalist principles—would conclude the militia right is protected nationally by the federal Constitution. But self-defense rights are protected by state constitutions, according to particular state contexts at the time of their ratifications.

From that beginning the complications would proceed to multiply. Which is one of the reasons I think originalism—touted as a means to deliver legal constraint—is unlikely to prove a durable tool for legal interpretation.

[Brett Bellmore]

"For instance, what if Virginia and Pennsylvania understood the 2A oppositely with regard to the question of a right to personal self-defense with a gun?"

You do realize that one of the differences between the Articles of Confederation and the Constitution, was that the former required unanimity to amend, and the latter just a supermajority?

So, the answer to your question is, that might have mattered under the Articles, but not under the Constitution, since the latter didn't require ALL the states to be in agreement to adopt an amendment binding on all of them.

[bernard11]

That doesn't answer the question, Brett.

As I understand Stephen's point, what if VA and PA interpreted the 2A differently, so that they thought they were, effectively, ratifying different rules?

This seems to be an important question. It does not seem likely to me that the understandings were uniform across the country, or even the Constitutional Convention. So what of originalism?

[Stephen Lathrop]

Okay, smart guy. Of the two, which interpretation is the originalist one. The one you prefer, right?

That is you practicing living constitutionalism, and lying to yourself about it

[wvattorney13]

You should watch the Youtube videos where Scalia and Breyer debate each other. His answer in defense of originalism is that it does not easily answer every single problem. That is a strawman.

What it does is that it easily solves most of the controversial problems that we have. The death penalty, for example, is clearly permitted.

And when you have the hard cases, at least TRYING to discern the original intent is preferable to putting your finger to the wind and coming up with your own value judgment about what the Constitution simply must mean in 2025. That's not judicial, that's legislative.

[Sarcastr0]

This is the usual false choice originalists claim. There are plenty of methods of interpretation that have rules other than originalism.

And given recent wrangling about stuff like gun control, characterizing originalism as very good at having any directive rules seems questionable.

[Brett Bellmore]

"There are plenty of methods of interpretation that have rules other than originalism."

Yeah, there's also textualism. And that's it. Once you get beyond originalism and textualism, (And the overlap is near 100%!) it's just an exercise in pulling things out of your ass, not following rules.

[Sarcastr0]

Originalism picks up where textualism ends.
You have a very facile take even of originalism. Why bother with depth when you have unearned confidence?

[Stephen Lathrop]

Bellmore — Actually, you face a binary choice. Textualism is either just another way to say originalism, or it is an antagonistic system akin to living constitutionalism. Depends on where you look for context.

In the first case, textualist practitioners would insist on a meaning derived from a context contemporaneous with a text's creation. That is originalism, rigorous and refined. So rigorous and refined as to be nearly useless

In the second case, textualist practitioners license themselves to rely on some context not contemporaneous—including a fully present-minded context.

If it is the latter, that is living constitutionalism tuned to the present. If the context chosen is instead contemporaneous not with the text's creation, and not with the present—as it might be if taking an earlier secondary source as authoritative—that is living constitutionalism at a seance, channeling some prior era's present-minded context.

[bernard11]

it’s just an exercise in pulling things out of your ass, not following rules.

Sort of like "history and tradition," you mean?

[Stephen Lathrop]

wvattorney13 — Uneducated in the methods of historical inference, current Court Justices must by default rely on present-minded context. Thus, they struggle to discern original intent.

The method of academic history is different. It insists on reliance to make historical survivals critique each other, without permitting any influence at all from modern context.

Antique texts which escape the happenstance of intervening eras, to land in modern archives, are examples of historical survival. Almost invariably, historical survivals arrive in the present with the contexts of creation which determined their creators' original intent entirely forgotten, and long forgotten. You have a text, and you have a context, separated by hundreds of years, with the forgotten latter recoverable only by laborious historical inference.

Those contexts are as ephemeral as views through a kaleidoscope. Each twist discards the present view, replacing it with one generated anew from former fragments. To retrace backward such a chaotic evolution usually proves impossible—no more likely than to turn the kaleidoscope backward to recover a former view.

The academic historical method attempts no such impossibility. It instead posits incontrovertibly that nothing which happened after the era under study had capacity to influence the context of creation (and thus the original meaning) for any historical survival. Thus, to pass the bar of founding era historical relevance, nothing to do with modern contextual influence (among a nearly infinite list) qualifies, such as: electricity and galvanic effects; mass production; immunology; the germ theory of disease; economics as a scholarly project; the industrial revolution; urbanism; socialism; scientific geology; natural selection; capitalism; rapid transportation; transcendentalism; uniform enforcement of justice from place-to-place; statistical analysis; agricultural science practiced by means except trial and observation; legal equality among persons of differing social classes; antibiotics; a science of public health; for almost everyone, an annual calendar of personal effort and resource availability not governed by planting and harvesting; post-founding legal tradition; materials science; chemical theory; architecture except with wood, iron nails, stone, or animal hides; astronomy; steam power or internal combustion; anything to do with post-Newtonian physics; scientific pharmacy; uses for rubber; the age of the earth; what lay beyond the Mississippi; the indigenous history of the Americas; weather forecasting; ice ages; ecology; national banking; etc., and on and on.

Present-minded context—the only context available to persons, including justices, untrained in academic history—is composed all but entirely of inadmissible post-founding era occurrences and influences, like those listed above. Very little from the pre-founding era remains among the cognitive furniture of most modern Americans. What little there is, is mostly about the Bible, or other ancient religious texts. Almost everything else everyone thinks they know, happened post-founding—and thus has no relevance to founding era interpretation. What the founders could not know, could not have influenced their meanings.

Before a justice untrained in history could undertake the task of "TRYING," you set forth, the justice would have to purge from consideration almost everything the justice thinks he/she knows. And then go the extra step, to purge from consideration every aspect of the modern case before the Court, lest keeping it in mind smuggle modern inference into an evaluation of past context, which knew nothing of any such case or issue.

Even secondary historical sources written after the relevant era must go into the discard pile. Those too were uninfluential during the founding. Only the historical survivals themselves, dating from the era in question, or before it, have any possibility to have created contemporaneous contextual influence—which is what an originalist ambition must discover, lest it sacrifice its touted power to constrain.

Thus, an accurately informed effort to evaluate long-forgotten historical context becomes a massive project of trained forgetfulness, to eliminate from consideration everything from intervening eras which exerts influence now. That can be done. It is the foundational work necessary to train a historical scholar. But it takes years to accomplish. And even then, can for any given scholar qualify analysis only for times, places, and contexts notably more limited than the scope of history implied by originalist ambition.

That is why academic historians become subject matter and period specialists. No one person can pretend to master the entirety of the past, or even a notable fraction of it. Thus, a historical account which seems simple to read after historical analysis, proves astonishing and strange to encounter during any properly qualified attempt to research and analyze its sources.

Reading a written history is deceptively easy. To understand and analyze the sources required to write that history is not so simple. Only the tiniest fraction among America's population ever train themselves to do the latter task. There are many times more competent lawyers than there are competent historians. As with lawyers, the vast majority of historians are of only minor use.

Judges and justices who purport to practice orginalism cannot properly cast themselves as reader/students of history; remember that written histories are by definition contemporaneously irrelevant to answer questions of original intent. No matter what written histories say, they disclose the state of opinion only at the times of their publications.

Thus, would-be originalist judges must take upon themselves that harder role of researchers and analysts. That is a role nearly every one of them has by lack of training been manifestly unqualified to accomplish. So all but universally, they rely on present-minded context to deliver whatever conclusions feel right.

They do that in relation to information incapable to have been contemporaneously relevant. Being present-minded, almost none of what those judges rely upon had been even dreamed of during the era under study.

Thus the originalist project you admire becomes what you deplore, a process of: ". . .putting your finger to the wind and coming up with your own value judgment about what the Constitution simply must mean in 2025."

What else could you expect? Present-minded contextual analysis is incapable to deliver any result except one appropriately comfortable for the date the analysis concludes. And accurate historical inference is almost always incapable to discover among its survivals any narrative which anticipated an issue to be decided in a present legal case. The founding era past was no better at anticipating issues today, than you or I are at anticipating critical issues which will arise 250 years hence.

We can legitimately hope to understand what happened in the past. We have invented tools capable to accomplish at least some of that. We have not invented any tools to enable time travel, to transfer whole from one contemporaneous context a meaning still relevant for use in a later time, when all the context has changed.

[JoeFromtheBronx]

tl;dr but thanks for the effort

[Stephen Lathrop]

JoeFromtheBronx — Your loss. You could read that and spare yourself reading Michael Oakeshott's magisterial essay, On History.

I have tried repeatedly to precis that essay, and that try nearly nails it. Of course, the original is far more rigorous, smarter, loaded with illustrative examples, and takes about four reads to grasp. Kant mavens might get through it in two reads.

For me, it took the first three times through to figure out what Oakeshott was saying. The fourth time I recognized it as a work of genius—a fundamental breakthrough which puts historiography on a more systematic and less subjective basis than heretofore. For a would-be academic historian, a solid grasp of that essay could maybe substitute for about a year of graduate study.

For anyone who wants to understand what happened in the past, what accounts of the past can and cannot do, and note many of the various mistakes people make when they think about history, you ought to forget me, and read Oakeshott.

But Oakeshott is longer, much longer.

[MaddogEngineer]

Antonin Scalia addressed many of the things over his legal career. That people like you continue to ask them says more about you than originalism.

How can judges discovering new rights under substantive due process be sure they aren’t being selective in their analysis so as to reach a preferred solution? Answer: they ARE being selective, and proudly so! Being untethered from anything beyond what they think is right. This was Scalia's ongoing critique of Living Constitutionalism.

You can say the originalists are doing the same thing. Maybe so in some circumstances. No originalist claims there is always one single definitive outcome or interpretation--that's a straw man its critiques have fabricated. One can often tell (if one is judging in good faith) whether a legitimate attempt at discerning the original meaning has been made, and whether the result would sound absurd to those who wrote the original words being interpreted. That shines through with gun control cases under the Second Amendment. Maybe not so much with the First, because I think even the most ardent defenders of free speech would acknowledge the case law has expanded the right far beyond what its authors expected. That is the tension Scalia recognized, that not all precedents can or should be undone in service to originalist purity.

[JasonT20]

Antonin Scalia addressed many of the things over his legal career. That people like you continue to ask them says more about you than originalism.

What does it say about you that you didn't even try and summarize what you got from Scalia's answers to my questions?

Instead, you turned the questions of bias back on non-originalist interpretation, when I clearly acknowledged that judicial bias is a universal problem in law not limited to originalists. To repeat, I focus on originalism because it is the topic of this article we are commenting under, and because originalists so often proclaim its virtues in being at least more neutral than other interpretative methods and less susceptible to judge's and justice's personal preferences.

That is the tension Scalia recognized, that not all precedents can or should be undone in service to originalist purity.

This is a fair statement, but it doesn't address my questions at all.

[apedad]

What type of Originalism are we talking about here?

Actual Originalism
Fair-weather Originalism
Framework Originalism
Halfway Originalism
History & Tradition with a special focus on “analogous regulation”
Intrinsicist Originalism
Instrumental Originalism
Liquidated Originalism
Original Intent
Original Meaning
Original Methods Originalism
Original Public Meaning
Process-Formalist Originalism
Semantic Originalism

[Brett Bellmore]

I think that was part of the point: That the majority are 'originalists' of some sort or other, but not necessarily the same sort.

I'd prefer actual originalism, myself; The nuanced versions are mostly just various forms of surrender to living constitutionalism's victories. Rationalizing not actually practicing originalism, due to a failure of nerve.

[Sarcastr0]

BrettLaw.

[Brett Bellmore]

You keep saying that, as though it were an actual argument.

[Sarcastr0]

Check this out- you don’t ask any of the questions inherent in the list you are given.

Is meaning intent of the drafter? What if there was a conflict?
Ot is meaning and understood by the ratifiers?
By the legal public who would be interpreting it? By the general public?
And the scale? Is the Constitution to be seen as a framework or individual clauses?

What is the threshold of textual ambiguity when originalism should matter?

I am not an originalist, but I bothered to learn about it. You not only don’t bother with originalism’s alternatives you don’t bother to engage with originalism.

You think it’s easy because you are shallow. You take your vibes and call them originalism. Sometimes you add some dubious outcome-oriented history.

[JoeFromtheBronx]

Prof. Eric Segall wrote that originalism is a form of faith, and there are many overlaps between originalism and the notion that "the Bible says so."

[Sarcastr0]

Brett’s flavor sure is.

But even though I’m not an originalist, I do concede there is some legit academic inquiry that goes more in depth.

Of course, it all comes from the initial assumption that the Constitution is a directive recipe, not a framework.
While I think that’s wrong (but not unreasonably so), I do think originalism has some interpretive utility to offer. It’s just not the only tool in the box.

And you see that in some current opinions – they run through multiple methods, of which originalism is just one of them.
I think that’s the right approach.

[MaddogEngineer]

He's one of the biggest offenders and not engaging honestly with Scalia's defenses of originalism--specifically original public meaning originalism, which is what he tried to follow.

Listing a bunch of different versions of originalism, in a attempt to discredit the idea, is a bigtime straw man. It's not any different than one I can construct about Living Constitutionalism, which is the next judge deciding what he thinks is right. That is even more untethered from any principle than the alleged 15 "versions" of originalism itemized above. Though I might argue, were I to dig into that, that some of those just are situational applications of applied originalism, interacting with precedent.

If you want to criticize a judge (Alito) for abandoning originalism in pursuit of his desired outcome, have at it! I might even agree. That you possibly do that can just further demonstrates that in many (not all) cases, originalism has more grounding and definition than the so-called Living Constitutionalism, which is at the similar mercy of the next judge's decision and the evolving ethos of justice.

[Sarcastr0]

Originalism is the method that claims to be the One True Way - that's why listing all its varieties is a legit argument.

Originalists are no more and no less outcome-oriented than any other judge with a different philosophy of interpretation.
They just claim to be better.

[MaddogEngineer]

I was waiting for this straw man...

No actual originalist claims it answers any and all questions definitively. That's the opening gambit its critics deploy (Eric Segall being a prime example). It doesn't do what you say! Therefore it's just an excuse to implement your preferred outcome! Because it's not possible to know the original meaning in every case, the approach should never be used! None of those are valid arguments against originalism.

Are there some polemicists (*cough cough* Josh Blackman) who make fantastical claims? Sure. Though I'm not even sure it's fair to place him in that camp. I strongly disagree with so-called common-good originalism, which as I said above is just conservative living constitutionalism based in natural law.

Original public meaning textualism forces you down a path that constrains possible (bad) outcome. That's why the left hates it so, because it rules out the possibility of many of their preferred results. That is exactly why I and others claim it's better. If you attempt to follow it, you never end up at the ridiculous divide-by-zero answer that same-sex marriage is required by 14A equal protection.

I welcome Elen Kagan's partial embrace of it, even if she doesn't end up deciding every case like Scalia might. Personally I didn't always agree with Scalia, but that's not required of me. A decision that tries to be grounded in the original public meaning of the text is always better than one that is not.

[Sarcastr0]

You were waiting so hard you didn’t read what I wrote.

One True Way isn’t about being definitive, it’s about every other method being not just wrong but illegitimate.

e.g. from below: "By having a constitution that is living and breathing and untethered to any original meaning, one is just reading his own preferences."

Except originalism *itself* contains multitudes. Which one is the One True Way now?

[bernard11]

Brett,

I’d prefer actual originalism, myself; The nuanced versions are mostly just various forms of surrender to living constitutionalism’s victories. Rationalizing not actually practicing originalism, due to a failure of nerve.

You say that as if it were an actual argument, but it isn't.

It's merely you stating, as you so often do, your opinion, accompanied by the assertion that it is obviously correct, and anyone who doesn't agree and act accordingly is up to no good.

[JasonT20]

I think that was part of the point: That the majority are ‘originalists’ of some sort or other, but not necessarily the same sort.

The majority of who are originalists "of some sort or other?" Lawyers? Judges? Law professors? All of the above?

I’d prefer actual originalism, myself; The nuanced versions are mostly just various forms of surrender to living constitutionalism’s victories. Rationalizing not actually practicing originalism, due to a failure of nerve.

How about you define what "actual originalism" is, compared to those "nuanced versions" you deride. I bet that "actual originalism" is just something some Scotsman came up with.

[JoeFromtheBronx]

“What it does is that it easily solves most of the controversial problems that we have. The death penalty, for example, is clearly permitted.”

How can originalism “easily” solve these problems when there are so many debates on what it means? It is akin to saying “Christianity” easily solves the most controversial problems.

I prefer Breyer’s side, even if I disagree with him at times, for various reasons. One reason is that he is more honest about making human judgment calls. He grants it is messy.

As to the death penalty, the Bill of Rights has certain limitations that regulate taking life. One involves the grand jury which is not applied to the states. One involves “limbs” that we don’t take as literally as we use to take it (e.g., whipping or ear cropping).

Does the current death penalty system adequately apply due process? What about equal protection? Is it cruel and unusual as applied? According to modern understanding and practices?

I doubt it. Also, it might only be possible in extremely few cases. Consider all those things the Jewish scriptures deem capital crimes. Jewish judges manage to put so many procedural roadblocks to make it VERY hard to execute. The same true when applying Muslim scripture.

Anyway, for those still reading, Senator Amy Klobuchar’s husband, John Bessler, has written some interesting and informative books on the 8th Amendment. He published Breyer’s dissent in Glossip v. Gross with additional commentary.

[wvattorney13]

“Does the current death penalty system adequately apply due process? What about equal protection? Is it cruel and unusual as applied? According to modern understanding and practices?

I doubt it. Also, it might only be possible in extremely few cases.”

An originalist has no problem with this. You can look at the history, which is difficult at times but see this is obvious. In 1789 and 1868 respectively the states had functional death penalty systems with far less due process than we have today. From that baseline our current system easily matches the test for what is constitutional.

Where I disagree with Breyer is that he takes his obvious dislike of the death penalty and reverse engineer a jurisprudence where the death penalty is allowed, but it just so happens that no application of it is permissible. That is purely outcome determinative and it has to be clearly wrong. As the constitution provides for a legal death penalty, then a fortiori there must be a constitutional way of actually having it.

You also address “modern understanding and practices.” Once again that is outcome driven. A majority of the people favor the death penalty but the judge like Breyer would find that HIS modern understanding is different and tell the people that HE actually knows better—again despite a clear tradition of it being allowed.

If we are trying to find out what the founding fathers said about the death penalty then by definition we don’t look to any enlightened modern understanding. If we are so enlightened we are free to get rid of the death penalty.

I just don’t see how anyone gets to a place where he believes that the constitution does not permit the death penalty from a truly honest method of judging. It’s really an easy question even if you don’t like the answer.

[MaddogEngineer]

Claiming the 8th amendment outlaws capital punishment, when it explicitly mentions capital punishment, is perhaps a foundational motivation for the existence of originalism.

Especially when suggesting that even today due process falls short in capital cases, so it has to be unconstitutional. All that ignores that in the founding era, executions often occurred not long after the conviction and sentencing. Talk about a lack of opportunity for due process. Subsequent additional due process rights acquired by the accused does not mean that a possible deficiency in any of them means that death penalty became suddenly magically constitutional defective.

My beliefs about this have little to do with my opinion on whether we should have the death penalty. I'm inclined against it, except for the reality that the criminal advocates would next target life in prison as cruel and unusual (as they have in other countries). I'd rather have a rarely carried out death penalty than face that possibility.

[JasonT20]

All that ignores that in the founding era, executions often occurred not long after the conviction and sentencing. Talk about a lack of opportunity for due process. Subsequent additional due process rights acquired by the accused does not mean that a possible deficiency in any of them means that death penalty became suddenly magically constitutional defective.

This is too close to, “The Founders did this, so it is constitutional,” for my taste. Given the wide gap between what people in the Founding era thought was acceptable and correct and what we think now, “The Founders did this,” should not factor into our legal decisions. Not for any issue where law and morality combine and where Americans living 200 years ago had much less concern for the human rights we value now. What punishments for crimes are acceptable is chief among those.

[wvattorney13]

But that is the document we are interpreting---the one the founders wrote. If they were such bad guys, why are we even reading their work? Let's redo it with something else.

However, as I hope we can agree that we are living under the United States Constitution then we certain care that "The Founders did this." That highlights what they meant when they used certain words. Like how capital punishment is allowed. No reasonable method of interpretation can come up with a scenario where it is not allowed.

Surely you have to see how outcome oriented such a view is and it is the main compliant of originalists---that you guys just do what gives you the win.

[Sarcastr0]

It often wasn't the Founders, but other contemporaries. Do they count?
Not to mention you assume the Founders intended to freeze specific phrases as they understood them.
The Founders, being educated men, were well aware of how language evolved.
They were also aware of how meaning of statutes at the time was not fixed, but interpreted under common law practices.

So even assuming Founders intent controls, you have a lot more work to do as to who counts, what they intended, and how they wanted the Constitution to be interpreted.

[wvattorney13]

Let's stick with the death penalty. What evidence do you have to suggest that the founders, despite explicitly allowing for the death penalty, and providing for an amendment process to eliminate it, would believe that 5/9 lawyers would get to decide for the whole country whether and to what extent that punishment would be allowed?

To state the position shows its absurdity. And there is a bit of a difference of opinion. Do we not care what the founders thought because they were slaveholders, or were they wise sages that wrote always changing words in the Constitution like a fortune cookie?

Could you be intellectually honest here and realize that because you oppose the death penalty you are trying your best in a losing effort to read it out of the Constitution, in fact have that document say the opposite of what it says, and you are claiming to come from a neutral observation point, just wanting what the founders---all of whom supported the death penalty---must have secretly waited for Thurgood Marshall to get on the Supreme Court and see?

What originalist think is fair is that there are an agreed upon set of rules that we must fairly follow. Your side wants to make it up and you go along and amazingly come up with the exact result you want in all cases.

[Sarcastr0]

Could you be intellectually honest here
I'm sure you had a good time writing your sophistic grandstanding, but I'm going to ignore the bullshit you peppered throughout this and get to your arguments

I think you have an extremely overdetermined take.

Did the Founders specifically intend an end to the death penalty? Doubtful. But that's not required; just that they may have allowed the usual accretion of precedent to take into account changing exigencies and practicalities.

It's a bare assertion that Founders, knowing the law as they did, intended that the bill of rights would be frozen in amber and in no way change over time.

Note that this doesn't specifically require the death penalty be found unconstitutional. That's not my push.
----
I have plenty of things the Constitution does I don't like (electoral college springs to mind), plenty of things it doesn't do I'd like it to (right to education...), and plenty of things I disagree with the Court on but accept they're the law of the land.

If you assume my theory of interpretation must be outcome oriented, then you assume wrong.

[MaddogEngineer]

They were also aware of how meaning of statutes at the time was not fixed, but interpreted under common law practices.

This is absolutely not true. The entire foundation of the rule of law is that the meaning of statutes is fixed and unchanging. That’s what common law/stare decisis is all about. The next judicial decision cannot contradict a prior precedent for the law to have any meaning. Such thinking is what originalism seeks to oppose. The law does not change because society develops other meanings for words that did not exist when the original law was passed.

Do new circumstances and facts evolve the law, beyond what the original authors might have imagined? Sure, we’ve settled this argument that broadcasting and the internet also have First Amendment protections. That’s not the meaning of statutes or constitutional clauses changing. “Press” did not become synonym for “Television”. “Press” was always understood to mean any means of disseminating information. At the time of the BoR ratification, no one would have been confused about whether hand-written leaflets were protected too–no one would have thought it only applied to pages made on a printing press. I can’t believe I have to be this pedantic. Actually, I can.

NB: It’s not the Founders “intent” that controls. It’s the meaning of the word they wrote down, as publicly understood, when the laws were passed that controls.

[JasonT20]

That’s what common law/stare decisis is all about. The next judicial decision cannot contradict a prior precedent for the law to have any meaning.

Uh, if stare decisis means that precedent can't be overturned, then how could an originalist overturn any precedent?

You're obviously wrong about that. Common law and stare decisis mean, to me the not-a-lawyer, that you give it a lot of thought before thinking about overturning precedent. You'd need to consider how doing so would affect other precedents, whether the original precedent is conflicting with other precedents and thus needs to be changed, explicitly contradicts the text, is manifestly unjust, etc.

Justice and law are not the same thing. But when the two are in conflict, which do you give more weight? There is no general rule that will always get you a result that you would agree with in every case. If constitutional precedent can't change without an amendment, then we have to live with unjust precedents until a very large hurdle is overcome.

Two-thirds of Congress or of state legislatures calling for a convention + 3/4 of the states ratifying any amendments proposed that way is why there have been so few amendments after the Bill of Rights. And most of those had little opposition. Voting age of 18? Really hard to argue against that when 18 and 19 year olds had been dying in Vietnam after being drafted. Two terms for President? How many argued against that when only one President ever ran for full terms more than twice?

[JasonT20]

No reasonable method of interpretation can come up with a scenario where it is not allowed.

You are begging the question here. This statement only works if you assume that the actions and views of people in the Founding Era are dispositive. Not to mention how saying “no reasonable method” could conclude anything different than what you say is preemptively labeling any counter argument as unreasonable.

Surely you have to see how outcome oriented such a view is and it is the main compliant of originalists—that you guys just do what gives you the win.

You should check your own words for logical fallacies before you make those kinds of accusations.

[wvattorney13]

What other era would be dispositive of the meaning of the words written by the founders than the founding era?

If your grandfather wrote a deed in 1970, wouldn't you look to his meaning in 1970 to discern an ambiguous text? Why would you come up with come sophistry that your grandfather was a smart man and knew that in 2025 people would be reading the words using evolving language which just so happens to come to the result that they want? No, you read it for what he meant. Full stop. That's how it's done.

By having a constitution that is living and breathing and untethered to any original meaning, one is just reading his own preferences. If you think the death penalty is undesirable, you see equal protection and due process and think that can't possibly apply to the death penalty because it is bad.

If you think same sex marriage is a positive thing, then surely due process of law must apply---how could it not to such a good thing.

If you look at text, history and tradition you are grounded in the words that we the people agreed to in our charter. Contrary to the prior poster, they didn't mean for them to be frozen in amber. There is an amendment process.

Under my way, we can see objectively that the founders had no problem with the death penalty. Under your way, we get your view. And a judge is not elected or appointed for his policy decisions.

[JasonT20]

By having a constitution that is living and breathing and untethered to any original meaning, one is just reading his own preferences.

And this is why I focused on how one can be sure of the original meaning and avoid cherry-picking history to get a desired result when I made my comment.

If you look at text, history and tradition you are grounded in the words that we the people agreed to in our charter.

"We the people" is a phrase that means the whole body politic of the nation. That is the sovereign nature of "the people" in a democratic society. But it is not at all true that "the people" have a single understanding, and thus there is no single "original meaning" that the whole of the people had agreed to. Nor is a majority of legislators representing pluralities of voters in their districts in 3/4 of the states going to have a single understanding of what they voted in favor of ratifying. People just don't think and act this way.

Among all of the other problems with it, this line of argument assumes that everyone that voted in favor of ratifying the Constitution or one of its amendments all thought the same things. When, instead, reality overrides that and they could have voted for it for entirely different reasons and with a substantially different understanding of what they were voting for than their fellows that also voted for it.

Under my way, we can see objectively that the founders had no problem with the death penalty.

No, we don't. You have not given anything "objectively" true to back that up. It probably is true, but it still requires evidence before taking that as fact and using it in an argument.

[bernard11]

as I hope we can agree that we are living under the United States Constitution then we certain care that “The Founders did this.” That highlights what they meant when they used certain words. Like how capital punishment is allowed. No reasonable method of interpretation can come up with a scenario where it is not allowed.

I think it is allowed, but you pose a false dichotomy. Cruel and unusual punishment is not allowed, and "unusual" only has meaning in context. (I think capital punishment is always cruel.) Over the years what is unusual, in terms of the crime and the criminal has expanded, and executions that were allowed no longer are, on 8th Amendment grounds.

And this is perfectly in accord with the Constitution.

Similarly, due process has changed. How could it not? We have learned a great deal in 200+ years. That not knowing one's rights, or not having a lawyer, puts the accused at an extreme disadvantage, that some prosecutors withhold evidence, that eyewitness evidence is often shaky, etc.

Due process is different now than it was then, for good reason, and this too is perfectly in accord with the Constitution.

[MaddogEngineer]

I didn't say "the Founders did this". I was correctly describing the history of the death penalty and the law. You are ironically showing why extra-legal moral beliefs have no place in the law. The law is not about what is "acceptable", it's about what is legal. As I wrote above, you can't "due process" your way to making something that's explicitly constitutional (name checked) be unconstitutional.

Original public meaning textualism stops a judge from appealing to evolving standards of decency to claim the death penalty unconstitutional, because he claims that law and morality should be combined and we care more about human rights than those rubes 200 years ago.

(I absolutely believe that morality should inform our law. If a law is offensive, change the law. Slavery was a grave moral offense, but was legal until the 13th amendment, because that's how the law works.)

[bernard11]

Claiming the 8th amendment outlaws capital punishment, when it explicitly mentions capital punishment, is perhaps a foundational motivation for the existence of originalism.

I wouldn't rest my case on that argument, ME.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Where is the explicit mention?

[MaddogEngineer]

I’ll say again that common good originalism based in natural law is just Warren Court substantive due process for the right. Though this is blog post is an interesting analysis.

I think others have observed that the SCOTUS originalists not ruling in lock step has more to do with the preceding assumptions about the law than anything to do with originalism. Scalia correctly noted the respect for precedent dilemma that divided him and Brother Clarence. Those intermediate steps also include procedural questions which often have more to do with precedent than originalism–although interpreting the scope of the writ of habeas corpus (recently popular) and chancery court powers may be the ultimate originalist exercise.

P.S. My condolences to the Delaware chancery courts for having self-sabotaged your state’s corporate haven gravy train.

[jb]

It's pretty insulting to people actually trying to discern the original intent of the Constitution to lump Alito in with them. He just votes for whatever the current Republican orthodoxy is and then backs into some sort of rationale. I may not agree with the Trump appointees on all their decisions but at least it feels like they're engaging in good faith Constitutional interpretation.

Similarly, even though Kagan skews liberal rather than conservative, she does so through a textualist lens so it seems weird to just ignore her (and the textualist/originalist distinction) in this discussion.

[TheAmazingEmu]

Alito has outright made fun of Scalia for being originalist before. There's a much stronger argument that Kagan is originalist.

[jb]

Indeed, and I find the inclusion of Alito and omission of Kagan in the Op Ed pretty telling: for lots of people (including, apparently, Alicea) originalism is just a pretext to get to conservative outcomes instead of actually being some sort of principled ideology.

[The Turtle Dove]

Originalism seems confused as to whether it is a canon of interpretation or a theory of legitimacy. If it indicates one meaning among many, there's a strong argument for that reading as a present action. If it suggests that any reading that varies from what the founders/ratifiers/illuminati/Bostonians/Whigs/Jacobite Pretenders thought lacks political legitimacy, it's simply wrong. If the legislature passes a bill in which there's a provision which no one reads, or ever even hears about, it's still a law. That's the distinction between a nation governed by laws and a nation governed by personal wills.

The laws do not operate by a mystic force emanating from Philadelphia two centuries ago, but consciously deciding to engage in historical recollection before deciding what they mean can be useful. (And that's also the way people interpreted laws around the time of the founding, cf. Hegel's philosophy of law.)

And then there's this "Common Good" notion. The anti-heuristic. The opposite of the meaning-governed sensibility that jumped the ocean after percolating in the German protestant enlightenment.

Mr. D.