pageok
pageok
pageok
Originalism after Heller:

My point yesterday that we're all originalists after Heller is more limited than Orin understandably takes it to be. Orin is right that none of the justices is completely faithful to originalist approaches to constitutional interpretation. Justice Thomas comes the closest, but even he strays. As I noted in my post yesterday, and as Orin comments, non-originalist precedents are a particular barrier for many originalists. That's especially so for the "faint-hearted" kind who think there is some independent value in respecting precedent.

What's interesting about Heller is precisely that it called on the justices to make decisions about a matter of important constitutional text in the absence of controlling precedent, that is, it called on them to write on a clean slate. There could be no retreat to precedents (though Stevens did make some effort at this). So what could be the basis for decision? Where would the justices turn as a matter of first principles?

Orin answers: "In that setting, it seems inevitable that both sides would focus a lot on originalist claims. . . You would expect the legal opinions to battle over the only available legal ground to fight." But was it really so inevitable? Was originalism really the only available legal ground?

That Orin and I think it obvious and inevitable that the justices should as a matter of interpretive principle concentrate so heavily on what commentators, dictionaries and other usages of the 18th century had to say about phrases like "keep arms," "bear arms," "the people," and the "militia," may only indicate that he and I have bought very much into this method. But the fact that not just Orin and I, but also every justice on the Court, in this rare and pristine constitutional moment, grasped for originalism as at least a cover for their views indicates that something more profound has happened in our constitutional culture.

Not so long ago, perhaps as recently as 20 years ago, there would have been a large and dominant body of opinion in the academy and in the judiciary for the view that such sources were stultifying, antiquated, crabbed, wooden, and anachronistic. Why care what these dead men thought when there has been so much empirical learning about gun-control policy, about its effects on crime, accidents, and death rates?

Originalism would not have been seen as the only available ground, or even the main ground, on which to fight. Yes, the justices might have made some sweeping observations about the Declaration of Independence, or about antiquated musket-bearing militia members. That's characteristic of the opinions of the era. But would we really have had the extensive and detailed originalist engagement we saw between Scalia and Stevens yesterday? I suspect, instead, that the majority and dissenting opinions of a Supreme Court from the 1940s to the 1980s in this same case would have looked much more like Justice Breyer's opinion. Some justices would have agreed with his conclusions and cited studies about the need for these laws, some would not have agreed and would have cited counter-studies and statistics, and others would simply have urged deference to the democratic process.

I am not necessarily saying that the justices did especially well in their deployment of originalist sources yesterday. Sandy Levinson, for one, thinks the originalism in the Heller opinions was very shoddy "law-office history." (See his posts here and especially here) Based on my limited reading of the matter, I agree with Orin that Justice Scalia got the better of the argument, or at least that he reached the better originalist conclusion. But others are far more qualified to make judgments about the history of the Second Amendment.

And it is certainly true, as Orin suggests, that the justices will issue many more opinions in the coming years in which originalism is barely mentioned, as in the campaign-speech decision yesterday. But this doesn't really go to my point about the ascendance of originalism, since in many other constitutional contexts we do have an overlay of thick constitutional law (precedents) that even originalists feel they must grapple with. The First Amendment, where precedent is especially well developed, is the most notorious example of this. None of the justices is really an originalist when it comes to the freedom of speech. Aside from the beautiful and stirring rhetoric of Justices Holmes and Brandeis about the supposed libertarian speech ideals of "those who fought for our independence," originalism has played no role to speak of in the development of free-speech doctrine. The ascendance of originalism isn't likely to change that at this late date.

I don't claim that we're all good originalists, or that we're consistent originalists, or that we're originalists forsaking all others. I am not even saying that the dissenting justices really believe in originalism as a methodology. I don't know whether they do. But even if they don't, the fact that the legal culture has developed to the point where they believe it must be engaged in a landmark case, and indeed must be a focus of a lengthy dissenting opinion in which they all join, is itself significant.

This originalist to-and-fro happens more and more across many constitutional contexts, even where there are precedents and policy considerations on point. Yesterday was simply the most crystalline example of this trend toward respect for a methodology that in living memory was greeted with guffaws. That's really all I mean when I say, "We're all originalists now."

Related Posts (on one page):

  1. Originalism after Heller:
  2. What Does Heller Say About Originalism?:
Sensible Lawyer (mail):
Prof. Caprenter,

So, in a world without Stevens' dissent, the "liberals" in Heller look like complete nutballs and, knowing that, they had to fashion a plausible originalist account to cover their asses, is that it?
6.27.2008 6:10pm
PJens:
I have engaged in a couple conversations with people on the Heller ruling. What I find interesting is that some believe the original author(s) of the Second Amendment had a modern definition of "militia". The obstacle I have to explain is that the word "militia" today does not have the same meaning as "militia" of the late 1700's. I ask my confused friends: Is it possible to have a militia independant of government without individuals having their own weapons?

I totally agree that we on the winning side of the case are originalists. I am not certain if the people who think Justice Stevens &Breyer's dissents are accurate can be designated as such.
6.27.2008 6:21pm
DaSarge (mail):
One reason why paid more attention to the texts of the time -- and the grammar -- is because there was a lot of very good briefing. The court &its clerks had a lot of help that is often missing in other cases.

Some of the briefing was not so good, of course. The brief submitted by the ABA was just plain (insert pejorative). If SCOTUS followed the logic in the ABA's brief, Plessy would still be the law.
6.27.2008 6:39pm
stephen jaros (mail):
In my opinion, the intent of the enactors, their "original" understanding of what a constitutional passage meant as applied to a case, should ALWAYS prevail over precedent or anything else. After all, it's that intent that survived the ratification process. It's what the constitution means.

Unfortunately, sometimes, indeed oftentimes, cases arise where we just don't know what the original intent of the enactors was. In those cases, we have to default to another approach, such as the "plain meaning of the text", "precedent", or what have you.

As an originalist, this gun case was tough for me, because as you say, we don't know whether the majority or the dissent captured the original intent, since the historical record isn't clear, and both are prima-facie plausible.
6.27.2008 7:09pm
Originalism Is Useful (mail):
In my opinion, the intent of the enactors, their "original" understanding of what a constitutional passage meant as applied to a case, should ALWAYS prevail over precedent or anything else.

What is an enactor?
6.27.2008 7:19pm
johnbragg (mail):
Compare it to, say, the decision in Brown vs. Board of Education, where there is a readily available originalist case for equality of public education.
6.27.2008 7:22pm
Fub:
Just a note related to this discussion.

Prof. Volokh appeared this morning on radio station KQED, San Francisco, discussing Heller and its implications for San Francisco gun law challenges with other panelists. The program was KQED Forum. That link will be put in KQED Forum archives under another URL in a few days. The MP3 file of the program, linked from the program description above, is here.

Panelists were:

Allan Ides, professor of constitutional law at Loyola University in Los Angeles

Chuck Michel, an attorney representing the NRA and other gun rights groups

Eugene Volokh, professor of constitutional law at UCLA

Kamala Harris, district attorney of San Francisco

Robyn Thomas, executive director of Legal Community Against Violence
6.27.2008 7:42pm
Tony Tutins (mail):
Allan Ides made a few rather conclusory statements saying (but not explaining) how Stevens got it right. And Prof. Volokh (whose spoken accent turns out to be much thicker than his written one, but now I know the edge he had over the competition when he applied to clerk for Kozinski) had to speak at high speed to try to get all his points out in the approximately 200 seconds allotted to him.
6.27.2008 7:56pm
30yearProf:
since the [Bill of Right's] historical record isn't clear


Actually, if one does the research, it is clear. And it supports a VERY MEANINGFUL individual right to keep and bear arms.

The Academics for the Second Amendment amicus brief demonstrates this entirely from contemporary sources. See: A@A Brief
6.27.2008 8:10pm
Simon P:
Is it true that Heller was written on a blank slate? I don't know. I'm of the perhaps radical position that the other branches have a legitimate role in determining what the Constitution says.

I realize that it's up to the courts to say "what the law is" -- a formula which in its original context was less about judicial supremacy than it was about the judicial function -- and I also recognize that it's been fifty years since Cooper v. Aaron secured the Court's modern understanding of its own power and responsibilities. So I don't mean to say that Heller represents some new assertion of absolute independence and autonomy by brushing aside generations of legislators' and executive officers' attempts to make sense of the Second Amendment and what it ought to mean for their communities. But I think we ought to recognize that this is precisely what the Court has decided to do. It would seem that academia is largely blind or indifferent to this fact.

The response I expect would be something like: Well, the Court has to find some way to the true meaning of the Amendment; intervening experience may only obscure the Second Amendment's true meaning, particularly when the question is one of the constitutionality of legislative action. How could the Court possibly determine the constitutionality of a legislative action, if legislative action is to be afforded some deference or interpretive weight in the construction of a rarely-visited provision like the Second Amendment? Wouldn't such deference amount essentially to automatic constitutionality? But that response would still be premised upon the notion that there is something unique about the Court's interpretive authority. I'm not sure that we need to afford the Court that kind of supremacy.

In other words, prior to Heller, the Second Amendment's proscription might have been described as a radically underenforced constitutional norm. It's a norm that has meant something to people and to legislators; it's something that has shaped their behavior and limited their discretion. But it's a norm that the Court had never set precise limits to, and it's not clear why the Court needed to set them now.

Heller represents, then, a mixed boon for conservative and libertarian commentators. It has acknowledged a new right long thought essential to individual autonomy. But in the process it has reiterated that the political branches have an extremely limited role to play in the interpretation of the Constitution. I find that unfortunate.
6.27.2008 8:34pm
traveler496:
1) Can someone recommend a concise online summary of the main approaches to Constitutional interpretation? I've learned only enough about them in these blogs and elsewhere to have whetted my appetite.

2) I wonder whether the framers were a) unaware of the level of ambiguity and contention which would likely result from different interpretation approaches, b) aware of and ok w/ these, c) aware of and not ok with these but loath to consider meta-rules given the difficulty and fragility of their agreement on the rules, d) just generally wiped out and in need of a stiff drink. Do you know of any evidence that would suggest an answer?

Thanks.
6.27.2008 8:42pm
Ron Hardin (mail) (www):
``If it is ridiculous to attack first principles, it is more ridiculous to defend first principles against these same attacks.'' Lautreamont
6.27.2008 9:05pm
PJens:
traveler496,

Sometimes the best part of the trip is planning it. Sometimes the journey itself is worth more than being able to say you completed it.

If you want the concise version, the SCOTUS ruled 5-4 in affirmation of Heller.

Otherwise I suggest you read whatever you can on the topic, and enjoy it.
6.27.2008 9:21pm
common sense (www):
Traveler496,
My take is that most of the founders would be amazed that the Constitution is still in effect. I don't believe it was intended to last forever. Since it made enough sense to them, it was sufficient.
6.27.2008 9:31pm
Tony Tutins (mail):
Traveler -- For your Q 1, start with this, which calls them "modalities"

For Q 2, I agree that the journey is its own reward.
6.27.2008 9:42pm
30yearProf:
I wonder whether the framers were a) unaware of the level of ambiguity and contention which would likely result from different interpretation approaches,


With respect to the right to keep and bear arms, yes, they were unaware.

The Framer's Generation lived in an age in America when everyone who wanted to be armed was, when many laws required personal arms and none forbade them (except for Blacks -- felons were promptly hung or locked away, the insane were locked away, and children under the control of their parents), and the dominant political philosophy of the time understood being armed and being free as the two sides of the single coin of Liberty.

Do a comparison of words as they have rapidly acquired new connotations in recent years.

Imagine if you will 1950 and the statement "Bob is a gay fellow." Everyone (almost everyone) would have understood that Bob was a happy-go-lucky guy with a sunny disposition. The connotation we give to "gay" in 2008, simply didn't exist then. Homosexuals existed, of course, but they hadn't taken possession of the word "gay" in 1950.

Or compare "cool" in 1940 -- meaning cold -- with "cool" in 1960 when it meant "top notch, the best."

Or, one more comparison, in 1950 in D.C., you could jump into a cab and say "To the airport" and expect to arrive at National in a few minutes. In 1970, the cab driver would have replied "Which one?" because after Dulles was built, "airport" became ambiguous. But if you are reading a document written in 1952, the meaning is clear.

And so forth. Words have time, culture, and place-based referents. A Constitution, like a contract, must be initially understood in that context.
6.27.2008 9:44pm
Tony Tutins (mail):
Addendum: There, "structural" means from the structure of the document itself. The Second Amendment would most likely enumerate an individual right to keep and bear arms, because it is sandwiched between amendments enumerating individual rights, and any reference to state powers occurs only at the end.
6.27.2008 9:45pm
frankcross (mail):
Or consider James Madison's position on the Bank -- he originally believed it unconstitutional but came to believe that, because circumstances had changed, it was constitutional.

Traveler, I think the answer may be c). The framers could have put interpretive meta-rules into the Constitution but they didn't. They left it to subsequent generations to work out as they thought best, perhaps including originalism as the standard future generations thought best.
6.27.2008 10:55pm
traveler496:
A serious thanks to all respondents, especially Tony Tutins whose pointer to the Answers.com article "Constitutional Interpretation" is just the kind of thing I was looking for.

PS. That article looks so pithy, once I get it under my belt I should be set to weigh in on SCOTUS decisions on a time available basis. Roberts looked reasonable on TV I can't see him being a stickler for exactly 9 justices. I figure I can read the body of the Constitution on the flight out and hit the major amendments later as needed..
6.27.2008 11:42pm
Cornellian (mail):
Traveler, bear in mind that a constitution necessarily must be written to a large degree in sweeping generalities. You can't anticipate everything that's going to happen even 5 years from now, let alone 200, and if you tried you'd end up with something like the tax code and it still wouldn't work. You write things in general terms , be precise where it's both desirable and possible to be precise, and set up your Republic to be able to deal with disputes over the meaning of the Constitution as they arise. That's about the best you can hope for.
6.28.2008 1:30am
Cornellian (mail):
I figure I can read the body of the Constitution on the flight out and hit the major amendments later as needed.

Once you've done that, there are also a number of early, structural decisions interpreting the Constitution that will help a great deal in understanding why many things work the way they do today, such as Marbury v Madison, Martin v Hunter's Lessee and McCullough v Maryland.
6.28.2008 1:33am
Tony818 (mail):
You are making a big deal out of this originalism bit. Could it be this is simply the first case in many years that had a blank slate before it, and thus the Court was required to go back to first principles.

You're points about the Court of the 40s and 80s rings hollow. Please give a few cases in which those Courts were given the opportunity to deal with an issue without stare decisis climbing on their back.

It is interesting, I admit, to see the politically motivated attempts at originalism in this one discrete case. But that by no means means originalism is in ascent.
6.28.2008 1:48am
p. rich (mail) (www):
All precedents should be suspect, and every SCOTUS case should be analyzed from first principles. Otherwise, a biased court can create deviant interpretations and vague rulings which do little more than provide a convenient basis for subsequent, even-more-deviant rulings. The more precedents, the more some twit like Kennedy can cherrypick his "reasons" without ever referring to those pesky impediments to social progress like the Constitution and Bill of Rights.

Speaking of first principles and the latter progressive impediment: Rights are inherent freedoms granted the people - not the government or the courts and not by the government or courts. Government and laws can only take away rights, and those we pay to maintain a viable society would do well to take away only with extreme reluctance.

Socialists on the court and in congress do not believe in individual rights and will continually act to restrict or eliminate them. That is why precedents should be viewed with suspicion and, at most, read for viewpoint rather than automatic influence or basis for excuse. This, I think, would represent true originalism.
6.28.2008 3:22am
Brett Bellmore:
I wish there'd been a complete blank slate; Scalia wouldn't have felt the need to find some way to exclude military arms from the protected arms, if there hadn't been the NFA already enacted, and in need of defense. As it was, even in this case the reasoning of the majority was warped away from pure originalism by a perceived need to defend existing law.
6.28.2008 7:04am
DiverDan (mail):

In my opinion, the intent of the enactors, their "original" understanding of what a constitutional passage meant as applied to a case, should ALWAYS prevail over precedent or anything else. After all, it's that intent that survived the ratification process. It's what the constitution means.


I think it is misleading to refer to the intent of the "enactors", if one is referring to the drafters of the Amendment (Madison et al. in the Second Congress), rather than to the voters who actually approved the Amendments during the ratification process. Frankly, I think that the failure to appreciate the difference between the scriveners -- those in the Constitutional Convention who drafted the original Constitution and those in the Second Congress who drafted the Bill of Rights -- from those with the power to enact, the citizens who participated in the ratification process, "We the People", contributes to a major flaw in modern jurisprudence, the reliance upon the judicial elite (and the academic elite) to wrest meaning from supposedly ambiguous language of the Constitution, the exaltation of the high priesthood of the judiciary. We have to remember that at the time of the Constitutional Convention, in the late 18th Century, law schools were virtually unheard of, lawyers trained by "reading the law" (something that remained true well into the 19th Century - remember that Lincoln was a lawyer, but he never even attended college, much less a law school), and lawyers were much rarer than they are today. Much more was expected of citizens who were not trained in the law in terms of understanding the law. So the contemporaneous understanding of the Second Amendment that ought to be more persuasive is the understanding of those who participated in the process of ratification -- just what did they believe they were voting for? By looking primarily to the drafters of the Second Amendment, Madison and the other participants in the Second Congress, and to the debates in the drafting, rather than the public debates during ratification, both the majority opinion and, to a much greater extent, the Stevens dissent, support the myth that the law is an area reserved to highly trained specialists, just too arcane for ordinary citizens, and that the high priests of the judiciary are the only ones competent to proclaim the true meaning of the sacred text of the Second Amendment (this is CERTAINLY the view of Breyer, who would turn over to the judges virtually unlimited discretion to approve any and all limits on gun ownership).

The idea of writing on a blank slate is useful as a thought experiment; imagine yourself as an educated citizen, not trained in the law, with a common citizen's 18th Century understanding of terms like "well regulated militia", "the people", "keep and bear arms" and "infringed". You are asked to vote on whether or not to ratify the Second Amendment as written. Would you have an understanding of the rights being granted? Would your understanding include Breyer's view that Judges could, on a case-by-case basis, decide that any limitations passed by any legislative body were just fine? Would you understanding comport with Stevens' dissent, that the Amendment granted no rights at all separate from a State-sponsored and controlled militia?
6.28.2008 10:44am
Tony Tutins (mail):

warped away from pure originalism by a perceived need to defend existing law

I once asked Randy Barnett what would it take to regain The Lost Constitution As I recall he suggested it wouldn't happen overnight. U.S. law is fairly stable and predictable; evolutionary not revolutionary. It took ten years for Brown v. Board of Ed. to have a significant impact, Little Rock High School notwithstanding.
6.28.2008 10:51am
Roger Sweeny (mail):
Not so long ago, perhaps as recently as 20 years ago, there would have been a large and dominant body of opinion in the academy and in the judiciary for the view that such [originalist] sources were stultifying, antiquated, crabbed, wooden, and anachronistic. Why care what these dead men thought when there has been so much empirical learning about gun-control policy, about its effects on crime, accidents, and death rates?

...the fact that the legal culture has developed to the point where they [the dissenting justices] believe it [originalism] must be engaged in a landmark case, and indeed must be a focus of a lengthy dissenting opinion in which they all join, is itself significant.

If the DC homicide rate had gone down by a factor of two or three instead of going up by a factor of two or three after enactment of the gun law... If the recent laws allowing many people to "concealed carry" had resulted in increases in gun violence... If public opinion polls showed firm majorities against gun rights... If strict gun control was a winning issue in races across the country, leading to strict gun laws across the country... I suspect the dissenting justices wouldn't have felt much need to deal with original meaning or original intent.

Their lengthy discussion of original intent is less a reflection of the strength of originalism as it is a reflection of how weak their case was in other ways.
6.28.2008 2:12pm
John Herbison (mail):
I wonder when (or if) "originalism" will ever be applied to povisions such as the Eleventh Amendment.
6.28.2008 4:36pm
Cornellian (mail):
warped away from pure originalism by a perceived need to defend existing law

The Founders were well aware of stare decisis.
6.28.2008 7:48pm
Toby:
What is the purpose of a constitution, if it can be trumped by anything that any judge makes up? What is the point of a constitution based upon natural rights, ineherent in each man, if we acccept rights that can only exist when given by government.

To those with no pronciples, the concept of first principles must seem quaint. To those with principles, the arguments seem corrupt.
6.28.2008 8:32pm
Kirk:
Cornellian,

... or, you might end up with something like the EU "constitution"
6.29.2008 4:59pm