Image: BCFC / Shutterstock.comThe Rise of the Culture of Originalism
John Bush. (Screen Grab via Bingham Greenbaum Doll).A Government Distracted from Its Core Functions Loses Trust
The Senate Judiciary Committee held a hearing on free speech on campus last week. During the question and answer period Senator Diane Feinstein complained that public universities, like Berkeley, could not be expected to assure that unpopular speakers were heard on campus. They simply did not have the resources to protect them. One witness, Eugene Volokh, the UCLA law professor, pushed back, lucidly arguing that universities must protect unpopular speakers, because permitting agitators to prevent speech gives them a heckler’s veto.
Feinstein’s question points up one of the greatest problems of governance today. Our public institutions often do not deploy the resources to protect their core mission, because money is wasted instead on matters that are outside that mission and indeed undermine it. The University of California is a perfect example. As Heather Mac Donald has noted, the university keeps spending millions of dollars to hire bureaucrats devoted to various aspects of diversity. Yet these kind of bureaucrats frequently poison the atmosphere for free and open debate on campus. And dispensing with them would pay for more security that could protect Berkeley’s core mission of free inquiry.
Maintaining law and order is the government’s most essential function.
The Confirmations Wars are not Partisan, but Principled
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around or oppose policies or nominees of the sitting President, simply by virtue of his party. And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.
But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.
The Democratic judicial philosophy has also become clearer. At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.
The confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.
Presidential Power According to Jack Balkin
Earlier this month Jack Balkin (Yale Law School) and I found ourselves on an APSA/Claremont Panel on “The Legacy of Justice Antonin Scalia,” alongside Hadley Arkes and Ralph Rossum. We couldn’t find anything to disagree about.
Balkin on Strategic Originalism
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
Jack Balkin has written an interesting post commenting upon Steven Smith’s and my discussion of strategic originalism. I agree with Balkin that the effectiveness of strategic originalism would turn on the number of originalist judges and whether they are the swing justices. With only one thoroughgoing originalist justice on the Supreme Court at present, strategic originalism will have very limited effect. My discussion, though, was focused not on the present situation, but instead on a more general problem which would also occur even if there were three (or a significant plurality of) originalists on the Court.
Balkin describes my arguments as follows:
Rappaport suggests that originalist judges should threaten to abandon a principled commitment to originalism and impose their personal preferences. Faced with this threat, liberal nonoriginalists will cower in fear and agree to compromise on originalist decisions, because those are likely to offer better results for them than the preferences of conservative judges.
Let’s put aside the hyperbolic language in this description. My point was that a strategic originalism might cause the Leftwing nonoriginalists to have additional incentives to follow originalism, not that it would make them fully originalist. While Balkin does not mention it, I should also emphasize that I ended up recommending against this strategy of strategic originalism, because it would not be as effective as a principled originalism in persuading others to follow originalism. But let me here just focus on Balkin’s criticisms.
Jack Balkin’s Response on Liberal Constitutional Theory
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
In my previous post, I noted that Jack Balkin had argued that liberal constitutional theorists are likely to adopt more activist constitutional theories if Justice Scalia’s vacancy is filled by a liberal justice. I argued that this would be improper, as it would involve the constitutional theorists engaging in strategic behavior rather than a principled approach.
Jack has written a response, claiming that I had misinterpreted him to be endorsing this change rather than simply predicting it would occur. While I am not sure that this was entirely clear in his post, if Jack says that is what he meant, then I am willing to accept it.
While we are on the subject of misinterpretations, I should note that Jack interprets me as claiming that he and other liberal theorists actively support this strategic, bad faith approach. But to begin with, I never said anything about Jack engaging in such strategic behavior. I merely said that he was acknowledging that his liberal brethren were engaging in it. In other words, even liberals were admitting that other liberals were engaging in strategic behavior. That is different than saying Jack was advocating it.
But putting to the side what Jack was saying, my post was not entirely about Jack. I also noted that Dick Fallon had advocated adjusting one’s constitutional theory based on changing circumstances. Thus, Jack cannot deny that a very highly respected liberal constitutional theorist actually recommends engaging in this practice, although Dick does note its dangers.
Strategic Changes in Constitutional Theory
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
Jack Balkin agrees with Eric Posner that if the Democrats fill the seat vacated by Justice Scalia, there will be a significant change in liberal arguments:
The liberal constitutional theories of the past twenty-five years had to come to terms with a conservative majority that had no qualms about using judicial review to promote conservative constitutional values. Therefore many liberal theorists advocated various forms of judicial restraint, judicial minimalism, popular constitutionalism, and, in general, taking the Constitution away from the courts.
Eric is right that if the balance of power in the federal courts changes dramatically, liberal constitutional theories that focus on the courts will make a comeback, as will the work of earlier Warren Court defenders like John Hart Ely and Ronald Dworkin. Who knows? Perhaps Laurence Tribe—or his appointed successor—will take up his famous treatise once again.
Let’s pause to examine this claim. What Jack appears to saying—admitting—is that the liberal constitutional theories have been strategic. The liberals are not arguing what they believe as a matter of first principle. They are engaged in strategic arguments in an effort to foreclose the conservatives from deciding cases in ways the liberals don’t like.
Some years ago, Sai Prakash reviewed a Cass Sunstein book advocating judicial minimalism. Sai called out Cass, claiming that Cass only wanted narrow judicial decisions when the conservatives were in the majority. When the liberals were in the majority, Cass would replace judicial minimalism with judicial activism.
Sai’s claim was thought to be quite provocative by some at the time, since it accused Cass of a type of dishonesty. But unless I misinterpret him, Jack is admitting that Sai was generally correct. (Jack does not mention Cass Sunstein by name but he does mention his theory of judicial minimalism.)
The Judicial Power Permits only Interpretation, not Construction
The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic meaning. Unclear language, in contrast, creates a construction zone. Within that zone, the judge may appeal to materials other than its original meaning in the course of judicial review.
Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:
If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution. And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land
Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.
An Active, But not an Activist, Judiciary
Then Professor, now Judge Stephanos Bibas giving a lecture at The King's College in New York City, September 29, 2016 (Image: The King's College).
The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the judiciary, because he believes that judges have substantial discretion to construct the Constitution, even when the semantic meaning is not clear. But it does not follow that the judiciary cannot vigorously discover and enforce the meaning of provisions that might seem indeterminate to a layperson.
Judges have many tools to clarify the meaning of provisions that may seem vague, opaque, or ambiguous. The Constitution was not created ex nihilo but against a background of legal methods that help make legal meanings more precise. To decline to deploy these legal methods is to discard a valuable portion of our traditional science of law. Judges are simultaneously empowered and constrained by these methods.
As I have argued, this view of judicial duty had overwhelming support in the founding era. For instance, James Iredell, one of the first Supreme Court Justices, affirmed that judges have a duty of clarity before invalidating legislation under a constitution, whether state of federal. But he also made clear that judges use “every consideration” in forming a judgment as the meaning of the Constitution, even if this process proved “difficult.”
Justice Roberts provided an example of this process in NFIB v. Sebelius in his interpretation of the Commerce Clause.
