If a Theory Tends Toward Abuse, It's Probably a Bad Theory

Over at the Originalism Blog, David Weisberg writes about Michael Ramsey's post arguing that originalism has constrained the Supreme Court from actively outlawing abortion on Constitutional grounds. I criticized Ramsey's post here.

Ramsey was responding to Paul Waldman, who wrote in the Washington Post that Supreme Court nominees lied when they testified at their confirmation hearings that originalism was a neutral judicial philosophy. As Weisberg characterizes it:

Paul Waldman, writing in the Washington Post, claims that the recent arguments in Dobbs reveal that Trump’s three Supreme Court nominees perpetrated “a lie, scam, con” when they testified that originalism, as they understood it, was a judicial philosophy that was neutral as to the outcome of any particular legal case or issue.  That is not a criticism of originalism.  It is instead a criticism of particular individuals who identify as originalists.

Originalists often defend their theory against criticism that judges and Justices fail to properly implement it by claiming that this a problem with practice rather than theory. Some have gone so far as to argue that originalism as a standard should be entirely divorced from considerations of implementation.  

Weisberg returns to this theme later in his post:

When one questions the good faith of the practitioners of a legal theory, rather than analyzing and criticizing the legal theory itself, a disheartening symmetry emerges.  Each side can say of the other: we do not believe that the reasons stated in your judicial opinions or your scholarly articles are your true reasons; the one true reason is your policy preference.  Similarly, each side can say: in deciding Case X, we did not adopt the most extreme position on the spectrum of policy preferences; this proves our decision is grounded in law and not in policy preference.  And the “liberal” side says that weakening or overturning Roe is a step toward a future originalist decision that the Constitution bans abortions in almost all circumstances, while the “conservative” side says that Roe itself is a first step toward a future living-constitutionalist holding that the Constitution prohibits any federal or state regulation of abortion.

Both of the claims Weisberg makes fail to make a resounding case for originalism.

If an interpretive theory tends toward abuse, it is probably a bad theory. A theory of constitutional interpretation may, by its nature, lend itself to misapplication or use as a cover for political goals. It's a blanket assumption for most originalists that the broad family of theories that they label "living constitutionalism" (read: just about anything other than originalism), are such theories. Living constitutionalism tends to result in its adherents simply applying their policy preferences rather than engaging in interpretation. A substantial component of originalism's popular appeal is that it supposedly sidesteps this problem. The original public meaning of the Constitution is a verifiable Truth that can guide decisionmakers and prevent them from resorting to deciding cases based on their political whims. 

To be sure, this characterization of originalism versus living constitutionalism is an oversimplification of the academic literature. Much has been written by academics on various sides of the debate arguing for other normative reasons to accept originalism over alternate theories. But this discussion is largely isolated in the academic sphere. In politics and popular discussion, originalism continues to be praised for its constraining power--how it prevents "activist" judges from "legislating from the bench." At least, this is how originalism is praised when it is not used as a barely-concealed synonym for promising conservative results.

If originalism gets its appeal (or a substantial portion of its appeal) from its ability to constrain judges from deciding cases based on policy preferences, then it is concerning if judges use the theory as a cover to reach decisions based on political preferences. This is supposed to be the outcome that originalism should prevent, after all. Weisberg claims that this type of criticism can be leveled against practitioners of any theory, but this isn't always the case. Some theories of interpretation may call for readings of constitutional provisions that lead to certain types of policy outcomes or that have certain practical results. Such an approach would be unacceptably political if explicitly employed by a self-proclaimed originalist, but it defines the approach of the other interpreter. A theory of interpretation that largely is based on policy considerations is not mis-implemented when a judge decides cases based on those considerations. There may be other reasons for disliking the theory--but disingenuous implementation and a lack of transparency is not one of them.

But politicized decision-making is a problem for theories that purport to be neutral--particularly for theories like originalism that gain much of their popular appeal from claiming to be neutral. If a theory, by its nature, tends to be abused in practice--if, when implemented, it consistently results in decisions in line with political preferences rather than its proclaimed neutral principles--this is a problem for the theory. And as much as the theory's proponents may point to instances of misapplication of the theory as problems with judicial actors rather than the theory itself, these instances are evidence that the theory itself tends toward misapplication and abuse. If a purportedly neutral theory ends up being misapplied most of the time, that's a reason to have second thoughts about the theory itself. After all, all of this theorizing about law and interpretation doesn't have an impact on the real world until a court applies the theory.

I've argued elsewhere that originalism tends toward abuse--primarily to the extent that it cannot be rigorously and feasibly implemented, and that this leads to decisions based on other, largely political, considerations. Those like Weisberg who would dismiss this criticism as a problem with practitioners rather than the theory itself forget that law is shaped and enforced by practitioners. Losing this perspective all too often results in ignoring reality for the sake of theory and failing to appreciate the real world implications and consequences that motivate these discussions in the first place.

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Originalism is Neutral Because the Court Hasn't Outlawed Abortion Everywhere?

That seems to what Michael Ramsey argues in response to this column by Paul Waldman.  Waldman argues (fervently) that conservative justices vote their political preferences and are not constrained by purportedly neutral theories of interpretation:

It was all a lie, a scam, a con: the assurances that they were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want: undermining voting rights, enhancing corporate power, constraining the rights of workers, enabling the proliferation of guns, and now most vividly, allowing state governments to force women to carry pregnancies to term against their will.

Ramsey takes issue with this:

But the abortion case actually shows the opposite of Waldman's claim.  The conservative legal movement doesn't want just to overturn Roe; it (or at least part that cares most about the issue) wants to outlaw abortion.  In Dobbs, though, at most the Court may merely withdraw the constitutional bar on abortion restrictions so that the question can be resolved by the political branches. 

Why not do more?  Why wouldn't the Court rule that states that permit abortion violate the Constitution?  If the conservative Court really believes it can "legislate from the bench" to "produce[ ] results conservatives want," isn't that the outcome we would expect?

Surely the Constitution can accommodate that conclusion.  As many on the left have argued, the Constitution's due process and equal protection clauses are open-ended and can be read to appeal to broad principles to be applied in light of contemporary morality and policy.  If, as anti-abortion conservatives believe, human life begins at conception or some point near to it, an aggressive living-constitutionalist conservative could find in those clauses a protection for unborn life.  Far less plausible claims have been made and accepted by courts on behalf of the policies of the left.

The conservative originalist Justices on the Court are not going to rule this way, and Justice Scalia -- as firmly anti-abortion as anyone -- never considered it.  The reason is originalism.  Though a few scholars have argued to the contrary, the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution's original meaning does not protect unborn life.  (See here from Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion.)  It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.  (And originalism is criticized by some conservatives on this ground.)

Ramsey claims that originalism is what prevents conservative Justices from affirmatively outlawing abortion. But this is what overturning Roe would do, to a significant extent. If the Court overturns Roe by upholding a ban on abortion, the effect is that abortion is banned in the affected jurisdiction.  Not only that, but it's immediately banned in 21 other states as well. Overturning Roe has the practical impact of banning abortion immediately in nearly half of the states. 

Sure, it isn't a nationwide ban. But once Roe is overturned, how soon will it be until there is federal legislation to ban abortion nationwide? From betting that's going on in academic spheres, it look like the expectation is a couple of days. With Roe out of the way, lobbying and support for such a law will redouble, backed by assertions that it has the Court's blessing. I hope that this is a pessimistic view of things--maybe the overturning of Roe will light a fire under democrats and prompt them to take action. But I'm not optimistic this will happen.

Such a federal law wouldn't be a constitutional decree. But under this chain of events, the conservative Justices' goal of outlawing abortion would be achieved with no other Court action beyond overturning Roe v. Wade. The Court would not suffer the institutional loss of credibility that an aggressive, constitution-based ban on abortion would entail. The Court would therefore be free to support conservative policies and goals under the guise of originalism's neutrality in any number of other cases and contexts.  Ramsey claims that a refusal to affirmatively outlaw abortion on constitutional grounds is evidence of originalism's constraining effect. A far more plausible explanation is that conservative justices want to preserve their influence and credibility, and can do so at no cost, since most of the work they want to see done will be done for them by other political actors.

Just because the Court doesn't take an immediate and drastic turn to the right and capitulate to the wildest dreams of the most extreme conservatives does not prove that originalism is the neutral, constraining principle that its proponents claim it to be. Claiming that this is what must be demonstrated to prove that originalism covers up political decisions is a disingenuous tactic that moves the goalposts and ignores political context.

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Originalism and Selective Historic Reference Points

A little over a week ago, Michael Dorf wrote an article in Verdict regarding oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen. This is the Supreme Court's most significant Second Amendment case since McDonald v. City of Chicago, in which the Court incorporated the Second Amendment, holding that it applies against state restrictions on the right to keep and bear arms. The Supreme Court's prior opinion in District of Columbia v. Heller, two years before, had only held that the Second Amendment applied to federal restrictions. 

New York State Rifle & Pistol Association, like McDonald, involves a non-federal restriction on firearms. Most rights included in the Bill of Rights have been incorporated to apply against state and local governments--with the Supreme Court basing this incorporation in the Fourteenth Amendment's Due Process Clause. Justice Thomas has previously argued for an alternate approach to incorporation, arguing that the Privileges or Immunities Clause of the Fourteenth Amendment is the basis to apply the Second Amendment (and other rights enshrined in the Bill of Rights) against the states.

Dorf focuses on a question that Justice Thomas asked during oral argument:

Attorney Paul Clement argued the case for the plaintiffs. He contended that “history and tradition” supported his position. Justice Thomas, who, more than any of his colleagues, espouses originalism, understood Clement’s invocation of history to imply that the Court should look at what the constitutional text meant to the People who ratified it. But that then raised a question. Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

Clement, a former Solicitor General of the United States, is an excellent lawyer, so he gave the answer that best served his clients: it doesn’t matter. Whether you look at the original public meaning in 1791, when the Second Amendment was ratified, or at the original public meaning in 1868, you will find the same answer: a right of generally law-abiding citizens to carry firearms in public.

Is that right? As I discussed in an article published in the Northwestern University Law Review earlier this year, there is reason to believe (and sources cited in footnote 37 of my article conclude) that the People who ratified the Second Amendment understood its language to prevent the federal government from disarming state militias but not to have many implications for individual firearms possession, while the People who ratified the Fourteenth Amendment in 1868 understood at least some kind of individual right to keep and bear arms to be among the privileges and immunities that the provision secured against state interference. (emphasis added).

Dorf notes that the Court, both historically and now, has refused to find that constitutional amendments incorporated through the Fourteenth Amendment offer differing limits on the power of state governments compared to the federal government:

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

Dorf notes that Thomas, as well as other justices who've authored or signed opinions regarding the scope of incorporated amendments (including Justice Gorsuch in Ramos) claim to be originalists. I've written about originalism before, both here and in longer work. Most modern versions of originalism hold that the meaning of the Constitution and its amendments are fixed at the time of ratification, and that the original public meaning of those provisions at the time of enactment is the same meaning that should be applied today. That notion of fixed meaning (sometimes described as the "fixation thesis") is accepted by most modern academic originalists.

But if meaning is fixed at the time of ratification, then most of the amendments in the Bill of Rights likely apply differently against state and local law than they do against federal laws. That's because these amendments don't apply directly to state laws. Instead, they apply to states via the Fourteenth Amendment, which was ratified 1868--many years after the amendments were originally enacted at the end of the 1700s. During those years, the public's understanding of the often broad, abstract, and value-charged language of these amendments likely changed to some degree. And yet, self-proclaimed originalists on the Court pay little mind to this--indeed some have explicitly rejected it. Take McDonald, the case that incorporated the Second Amendment against the states. There, Justice Scalia--recognized as the highest profile originalist to sit on the court--joined in the portion of Justice Alito's opinion that explicitly rejected the notion that the Fourteenth Amendment may provide a different level of protection to the right to bear arms:

[Justice Stevens] would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." Post, at 3093.

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice STEVENS' theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.

Justice Thomas, it should be noted, did not join in this portion of the opinion.

Alito's view is hardly without historic support. The Court has long refused to recognize differing levels of protection by the Fourteenth Amendment, warning against a potential dilution of protection against state law enforcement compared with federal law enforcement and raising the specter of incongruous enforcement of constitutional rights against different government actors. Take Justice Brennan's opinion for the Court in Malloy v. Hogan:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights," Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (dissenting opinion). If Cohen v. Hurley, 366 U. S. 117, and Adamson v. California, supra, suggest such an application of the privilege against self-incrimination, that suggestion cannot survive recognition of the degree to which the Twining view of the privilege has been eroded. What is accorded is a privilege of refusing to incriminate one's self, and the feared prosecution may be by either federal or state authorities. Murphy v. Waterfront Comm'n, post, p. 52. It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. (emphasis added).

Incongruous as such a legal regime would be, it would at least be an originalist one. Refusing to apply two different standards rejects the fixation thesis in favor of the broader goal of a consistent set of rules governing the scope of constitutional amendments. This goal may be sensible, but it isn't consistent with originalism. And this ignorance of basic originalist principles may not always be in the service of such noble goals, as Dorf argues:

To be sure, in Ramos, as in McDonald, Justice Thomas concurred separately to insist that the Privileges or Immunities Clause, rather than the Due Process Clause, does the work of incorporation. But for him as well as his colleagues, originalism—which allows for changed meanings between 1791 and 1868—stood as no obstacle to full incorporation, which they favored on what pretty clearly appeared to be policy grounds.

In that respect, the irrelevance of Justice Thomas’s question—1791 or 1868?—jibes with everything else we know about originalism. In the most hotly contested cases that come before the Supreme Court, arguments rooted in original meaning typically serve a rhetorical function. Justices invoke them to justify decisions taken on other, ideological, grounds.

What are the implications of all of this? 

First, it suggests that as much as originalist scholars may argue in favor of originalism, these arguments seem to have little impact on the Court's actual practice, which consistently ignores (and is based in a history of ignoring) the notion that constitutional provisions' meanings are fixed at the time of enactment. Originalists may respond that failures to appropriately apply originalism should not count against the theory itself. Indeed, some argue that the recognition of such failures by the professoriate turns out to be a point in favor of originalism. Leaving a thorough response to that peculiar defense for another day, I will note for now that if the Court continues to consistently misapply originalism (and reach decisions based on the foundation of jot-for-jot case law), there ought to come a point where originalists should ask themselves whether everything they are working for is really worth it. 

Second, the longstanding failure of the Court to recognize that the meaning of constitutional provisions are fixed at the time of reenactment in the Fourteenth Amendment context threatens a recent trend in originalist scholarship arguing for a positivist take on the theory. This "positivist turn" in originalist theory (very broadly and briefly summarized), argues that originalism is our law, and that it should be followed because judges promise to follow the law. If the Court's history of failing to apply the original public meaning of the Fourteenth Amendment forms the basis for a great deal of constitutional law, the thesis that originalism is, in fact, our law is significantly undermined.

Third, the issue of whether to interpret early Amendments based on their meaning at the time of the founding or at the time of the Fourteenth Amendment's ratification represents a subsection of a debate over when the Constitution's meaning should be fixed. For the most part, this debate is sadly limited--originalists argue for fixation at the time of ratification, a few people (and I) argue that provisions should be read based on present public meaning, and the Court apparently favors fixation at the time of the founding, 1868 be damned. But there are more options. Why should we consider the meaning of the Constitution as fixed at any point before the Fifteenth Amendment barred the United States and the states from denying the right to vote based on race in 1870? Why shouldn't the meaning of the Constitution be fixed in 1920 when the 19th Amendment's ratification guaranteed women the right to vote? Some may argue that the Constitution has mechanisms for amendments built in, and that this "potential sovereignty" somehow ameliorates the failure of earlier iterations of the Constitution to accommodate the democratic input of those it governs and protects. But this doesn't account for the fact that determinations of original public meaning tend to focus on the voices of those who played a role in the drafting, adoption, and ratification of constitutional provisions, and that the voices of women and African Americans were absent from these contexts for centuries. Those historically excluded from voting may not want to completely do away with the Constitution and amendments as they're worded, but they ought to have some sort of a say in the meaning of these provisions if we're going to claim with a straight face that the Constitution represents the popular will of a supermajority of Americans.

While I have dozens of depositions and hundreds of other projects and emergencies to worry about over the next few months, I'm sure I'll find the time to write more on these issues. In the meantime, we'll see if any of the Justices make an effort to differentiate between or justify particular historic reference points for their constitutional interpretations when the opinion in New York State Rifle & Pistol Association is eventually issued.

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Schauer on "Unoriginal Textualism"

 Frederick Schauer recently posted an article, Unoriginal Textualism, on SSRN. Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

This approach to constitutional interpretation is very much in line with a "present public meaning" approach suggested at the end of an article that I coauthored with Al Hiland. That article focused on difficulties that originalists face in implementing their theories--focusing, in particular, on the inability of judges and attorneys to engage in the necessary historic research to determine the original public meaning of constitutional provisions. This is a significant problem for originalists, most of whom argue (in one way or another) that the Constitution should be interpreted based on its original public meaning.

After surveying and describing obstacles to determining original public meaning and arguing that reliance on legal academics was unlikely to be the solution that some originalists hope it to be, we propose the alternate theory that rather than being bound by the original public meaning of the Constitution and its amendments, that courts be bound by the present public meaning:

In the context of this Article’s criticism, the present public meaning approach seems appealing—it avoids the need for the complicated and goal-oriented method of studying the constitutional record and the undefined, unworkable method of immersion. It likely leads to much more thorough and representative corpus linguistics analysis, as the internet enables the construction of corpora that are magnitudes more extensive and representative than those available for founding era language. And it better prevents scholars, advocates, and courts from reaching politically motivated conclusions by modernizing the basis for interpretation— allowing the general public to check or speak out against mistakes, rather than letting courts hide behind a curtain of selective historic citations. As for concerns about linguistic drift, this can be minimized by reading the text of the Constitution as a whole with an eye to relevant context thereby avoiding absurd results that originalists flag.

I tend to refer to this approach as the "present public meaning" interpretive approach (I supposed I could also refer to it as "present public meaning textualism"). Schauer refers to this as "unoriginal textualism" or "non-original textualism." 

Schauer points out that the fact that the Constitution is written does not preclude expansive and flexible interpretations--noting that Chief Justice Marshall suggested as much in McCulloch v. Maryland. Rather than seeking to be bound by the past in interpreting the Constitution--say by original intent or original public meaning--Schauer suggests that the text still be treated as authoritative, but that its meaning be determined in light of the present meaning of the text. 

After amassing examples of how the Constitution is not written to speak only to judges, but also to members of the public, Congress, jurors, and others, Schauer writes:

An important feature of these and countless other examples is that often there is no Supreme Court decision dealing with the question, and there is often neither the time nor the resources for the constrained official to try to figure out what some word or phrase or sentence was publicly understood to mean in 1787, or 1791, or 1868. As a result, if it is important that the Constitution constrain officials, and if it is important that it do so even in the absence of litigation, then it follows that it is equally important that those whom the Constitution seeks to constrain be able to understand the Constitution directly. And although the Constitution’s for all practical purposes unremediable vaguenesses may make such an aspiration a fantasy for many of the document’s most consequential provisions, it does not do so for all of them. And for those words and phrases that do have relatively determinate meanings, the constraint function can be served only if we understand the Constitution to mean now what its language means now to its addressees. This is textualism, but it is not the textualism of meanings from a century and a half to more than two centuries ago. It is the textualism of the text now, and thus of the text’s meaning now. It is the textualism that tells Congress how to count the votes of the presidential electors without having to engage in extensive historical research, just as it is the textualism that does the same for the Senate in determining how to conduct an impeachment trial, for the prosecutor deciding whether to present evidence coming from a witness not present for trial, and for any official seeking to determine what the Constitution requires under circumstances in which no court has yet authoritatively adjudicated the issue.

The argument for contemporary meaning textualism, therefore, is the argument from guidance. The most obvious manifestation of that guidance function comes when the Constitution constrains even well-meaning officials from doing what they would otherwise be inclined to do on policy or political grounds, but the guidance function is not limited to constraining. As the examples of counting electoral votes and determining impeachment procedures illustrate, guidance is applicable even when constraint, in the sense of second-order constitutional constraints on first-order policy preferences, is not at issue. But whether constraining or just instructing, the Constitution, as with any other law, is likely to operate most efficiently and effectively when its addresses know what the law requires without the intervention of the courts. If we think that “Stop” signs work best when motorists stop simply because the sign tells them to, then we can imagine the same dynamic, at one or several removes, for the Constitution. And if we believe that, then we should accept the value of a constitution that can, in theory and even sometimes in practice, guide in much the same way as the “Stop” sign guides. And for this guidance to be effective, the guiding document must speak the same language as those it addresses. Contemporary meaning textualism is based on the idea that only if we understand the language of the Constitution as it means now can those who seek guidance now know what the Constitution requires of them. [footnotes omitted]

I'm inclined to agree, and I think it is correct to consider the Constitution in a broader perspective as being interpreted by people and institutions other than the Supreme Court. Not only does a present public meaning approach better guide these actors in interpreting the Constitution, but it allows these actors to better check the Supreme Court, which--if this interpretive method were adopted--would also need to interpret the Constitution and its amendments based on the present public meaning of their provisions. Members of the general public are more likely to be able to readily critique the Court should it depart from the present public meaning of the text. Under alternate approaches, such as original public meaning originalism, the Court may use selective or incomplete citation to historic sources (or to secondary sources providing their own accounts of historic meaning) to reach a desired outcome in a particular case. Parsing through this analysis may prove difficult for the general public--certainly more difficult than evaluating analysis based on the present public meaning of constitutional text.

I'll likely have more to say in the future in support of the present public meaning approach. It's something I've considered for a while, as some of my earliest thoughts and concerns with originalism arose from how the theory renders modernization of the Constitution's meaning impossible. The present public meaning approach also appears preferable from a democratic perspective, accounting for the views of those around today, including African-Americans and women who were unable to vote on or approve any constitutional provisions or Amendments until the passage of the 15th and 19th Amendments. 

These thoughts on this interpretive approach are in their early stages, but Schauer's article represents a significant step towards this method gaining further attention and support. I can only hope that work and other circumstances permit me the time to develop these ideas before next Spring.

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Does the Constitution Prohibit DC Statehood?

With the Democratic party in control of the House and Senate, discussions have been picking up over whether the District of Columbia will be granted statehood.  Proponents argue that residents of the District, many of whom are African American, lack sufficient representation in Congress and the Senate, and point to the fact that DC's population is larger than Wyoming, which has a representative and two senators.  Critics argue that DC statehood is a political effort to increase the number of Democratic senators.  

Politically charged debates often prompt accusations of unconstitutionality by one side or the other, even if the Constitution truly has no say on the matter. Critics of DC statehood are advancing such arguments, exemplified by this article published yesterday by the Wall Street Journal's Editorial Page.

The WSJ Editorial Board's primary argument is that the Constitution mandates that DC remain a district that is not a state, and Democratic statehood proposals violate this provision of the Constitution:

Fashioning an independent seat of government in a federal system while affording representation to its residents is a dilemma dating to the founding. The Framers provided in the Constitution’s Article I that Congress could, “by cession of particular states,” control a small area in which the federal government would operate. In 1790 part of the territories of Virginia and Maryland, two of the 13 states that ratified the Constitution, were delineated for federal control.

Advocates of statehood brush aside the constitutional concerns and frame their cause as a simple question of democracy. It’s true that the roughly 700,000 residents of the District don’t have the ability to elect voting Members of Congress. Many hold influence over the federal government as employees and contractors or in other positions, and in the Founding era proximity to the seat of power was itself considered a form of representation.

 

Yet the natural remedy for the imperfect status quo, if representation is the real concern, would be for Congress to do something it has done before—return part of the District to the state that ceded it in the first place. That’s what happened in 1846 when Congress reinstated Virginia’s control over the D.C. suburbs of Arlington and Alexandria.

 . . .

There could be constitutional challenges to retrocession to Maryland. But the creation of an independent state to supplant the District, as the current House legislation proposes, is certainly unconstitutional. The Founders deliberately created a federal district under the control of Congress because it didn’t want the federal government to be subject to the sway of any one state. Statehood imposed by statute would strip Congress of one of its enumerated powers—effectively amending the Constitution without an amendment process.

Others advance similar claims that the Constitution "mandated" creation of the District of Columbia. They all appear to be citing Article I, Section 8, Clause 17 of the Constitution, which provides that:

The Congress shall have the power . . . [t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings

First, these arguments do not appear to have any force against what Democrats are proposing. Democrats are not advocating the complete elimination of the District described in the Constitution. Instead, they are proposing that the District be limited to a much smaller area, with the rest of DC becoming a separate state. The Constitution does mandate a particular location or size (beyond a maximum size) for the District, and shrinking the District is therefore consistent with this constitutional provision.

But critics' arguments run into an even more fundamental problem--they are based on an assumption that the Constitution mandates the creation of the District of Columbia. This is not apparent from the language of Article I, which grants a power to Congress to exercise exclusive legislation over whatever District "as may" become the seat of the United States' government. This isn't to say that creating such a District isn't a good idea, as certain founders recognized. But permitting Congress to exercise a particular power is a far cry from mandating that Congress do so.

I suspect that this reading of Article I is inconsistent with most of these same critics' approach to other provisions of Article I, like Congress's power to regulate commerce. Conservatives have long opposed extensive application of Article I's Commerce Clause to federal legislation governing sales transactions that take place within a single state. In opposing broad application of the commerce clause, they argue that the founders sought to create a limited federal government, and that Article I should be interpreted as providing a limited set of powers that Congress may exercise. This constrained reading of Congress's power is undermined by the more aggressive reading in the District of Columbia Context--the assertion that Congress must create a District to serve as the seat of the federal government.

Critics of DC statehood may also contend that the founders never intended for Washington D.C. to be a state, as Senator Mike Rounds did earlier in March:

The Founding Fathers never intended for Washington D.C. to be a state.#DCStatehood is really about packing the Senate with Democrats in order to pass a left-wing agenda.

Just look at the DC voter registration data:
🔵 76.4% Democrat
🔴 5.7% Republican

— Senator Mike Rounds (@SenatorRounds) March 22, 2021

Responses to this particular tweet have been largely cheeky--noting that Senator Rounds represents South Dakota, which was not a state at the time of the founding. These responses miss the point.

The response, instead, should be that based on what the Constitution says, it appears that there was an expectation that there would be a District, but whether that district would be DC, or whether it could ever change in size or location (other than remaining below 10 square miles) appears to be an open question. 

Moreover, proponents of originalist methodology should scold Senator Rounds for his shoddy attempt at engaging in originalist analysis. Virtually all originalist scholars will tell you that modern originalism focuses on the original public meaning of constitutional provisions--not on the intentions of the founders. When left-wing commentators refer to the original intent of the founders in criticizing originalism, they are met with a flurry of indignant responses from academic originalists. I haven't seen a similar set of responses to Senator Rounds' tweet though. Perhaps I missed them.

In the end, DC statehood is a political debate. Critics and proponents of statehood may try bringing the Constitution into the picture, but these efforts are misguided do nothing more than muddy the waters.

EDIT - APRIL 22, 2021

I have left out a discussion of whether DC statehood violates the 23rd Amendment, a secondary argument that the WSJ advances and that others focus on in more detail elsewhere. While I avoided discussion of the 23rd Amendment issue to save space, it is not apparent that DC statehood would violate the amendment, which grants DC electors in the electoral college. While the size of the district may be reduced, this would not undermine the appointment of electors. And DC statehood is certainly not inconsistent with the spirit of the 23rd Amendment, which is to grant political representation to those in the District--statehood would permit residents to have not only representation in executive elections, but in the legislature as well. If statehood passes and the three electoral votes for the shrunken district remain a widespread concern, the 23rd Amendment may be repealed should it be deemed no longer necessary.

READ MORE - Does the Constitution Prohibit DC Statehood?

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Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

Amy Howe at SCOTUSblog writes:

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case is New York State Rifle & Pistol Assn., Inc. v. City of New York.  I wrote about this case back in January 2019 when the Court granted cert, noting that this was the first major Second Amendment case that the Court had agreed to hear in over a decade. Details on the ordinance at issue and the petitioners' challenge can be found there.

As I noted then, the Court was likely to overturn New York City's restriction in light of Kavanaugh's appointment. But after the Court agreed to review the law, New York City amended its rule so that people could transport firearms to second homes or to shooting ranges outside of the city. In its opinion today, the Court notes that this was the relief that the petitioners had sought.

While the Court's mootness determination avoids engagement with the substance of the Second Amendment challenge, several Justices either disagreed with the decision, or explicitly stated that the Court should take up a Second Amendment case.

Justices Alito, joined by Gorsuch and (for the most part) by Thomas, dissented. The dissent concluded that the case was not moot, and determined that New York City's ordinance violated the Second Amendment.  To quickly summarize the Second Amendment analysis: the dissent found that the New York City ordinance infringed on the right to keep a handgun in the home for self-defense because it restricted people from taking guns out of the home for certain purposes necessary to exercise that right, such as repairing the gun or taking the gun to a range for practice. The dissent found that the ordinance's restriction on taking firearms outside of the city to practice at ranges was impermissible, since gun ranges may not have the same models of firearms available, and because the City could not identify restrictions on taking firearms outside of municipal limits during the founding era. The dissent also took issue with the City's claims that the restriction served a purpose of promoting public safety.

This case originally looked like it would be the next major Supreme Court case to interpret the Second Amendment. With its mootness determination, the Court sidestepped this outcome. But the layout of the opinions gives a preview of the Court's next steps on the Second Amendment. Kavanaugh's concurrence all but confirms that he will join Alito, Gorsuch, and Thomas in voting to grant certiorari to a Second Amendment challenge in the near future, and once that happens this process will begin again.

[Updated 4/28/2020]

READ MORE - Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

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Justice Willet: A Confirmation Hearing Outline

Via Howard Bashman's How Appealing, I learned of this excellent profile of Texas Supreme Court Justice Don Willett by Eric Benson. Since Donald Trump included Justice Willett on his short list of potential Supreme Court nominees back in May, there has been a decent amount of coverage from the fairly generic to the critical to the sensational. Benson's article thoroughly covers the story of Justice Willett's life and career before the Texas Supreme Court, some of his notable moments on the Court, and his activities beyond the judiciary, including his speaking at Federalist Society events and living up to his title as the Tweeter Laureate of Texas.

From Benson's article:

Social media sleuths had combed through @JusticeWillett’s feed and found such Trump-mocking gems as “We’ll rebuild the Death Star. It’ll be amazing, believe me. And the rebels will pay for it. —Darth Trump.” Within the day, the websites of outlets from the Dallas Morning News to People exploded with variations of the headline “9 times Texas Supreme Court Justice Don Willett dissed Donald Trump.” While some political commentators thought Willett’s tweets would make his ultimate selection by the thin-skinned Trump unlikely, the president-elect might well favor a judge prone to the occasional insult. But the attention garnered by Willett’s Twitter jabs obscured a more relevant fact: While the justice portrays himself on social media as little more than a flag-waving, pun-inclined good old boy, he is also a heavyweight of constitutional jurisprudence, one of the leading lights of a polarizing legal movement that has upended the long-sacrosanct conservative doctrine of “judicial restraint,” the mantra of Scalia and Robert Bork.

In a series of high-profile opinions over the past half-decade, Willett has mapped out the contours of this position, championing what libertarian attorney Chip Mellor termed “judicial engagement,” a more aggressive approach to reviewing (and sometimes declaring unconstitutional) government regulations, particularly those that relate to economic and property rights.

I began following Justice Willett on Twitter a while ago, and it is a decision I do not regret. Justice Willett's tweets are often humorous and informative. While Justice Willett's tweets are almost all whimsical, he does not hide his enthusiasm for judicial restraint.

I urge readers to read Benson's full article on Justice Willett. As for the remainder of this post...in the event that Justice Willett is indeed selected as a judicial nominee, whether for the Supreme Court or for another federal judgeship, senators will need to think up questions to ask at the confirmation hearing. Clever senators should approach the hearing as any good lawyer approaches questioning a witness at trial: they should ask questions knowing what the answer will be -- or what the answer ought to be.

With this in mind, here is a list of possible questions senators may ask, along with Justice Willett's paper Twitter trail that shows what his answers had better be:

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

As a Supreme Court Justice (or federal judge) will you legislate from the bench?

When it comes to legislating from the bench—I literally can't even.

— Justice Don Willett (@JusticeWillett) September 10, 2014

Do you anticipate that you would ever engage in any form of judicial activism should you be appointed to the Court?

My wife's favorite type of judicial activism. pic.twitter.com/EQcijk5jpW

— Justice Don Willett (@JusticeWillett) November 10, 2016

How will you approach discussions with other justices (or judges) who do not agree with your views on a case?

Text from Court colleague—"I must dissent from your opinion."

Me—"New phone. Who dis?"

pic.twitter.com/4Ai31PrSXD

— Justice Don Willett (@JusticeWillett) November 12, 2016

(Here's a non-tongue-in-cheek question, just for fun): Does your inclusion of "#SCOTUS" in this tweet indicate that you would vote in favor of granting certiorari to this case or to a similar case?

BREAKING—9th Cir. says there's no 2A right for the general public to carry concealed firearms in public. ⚖ #SCOTUShttps://t.co/OoIEcAvvma

— Justice Don Willett (@JusticeWillett) June 9, 2016

What approach will you take toward oral argument?

"That idea is just . . . the worst."

—Vitruvius ("Lego Movie")

Need to work that into oral argument this Term. pic.twitter.com/seE5iTIvO5

— Justice Don Willett (@JusticeWillett) August 11, 2014

What is that on your sleeve?

New cufflinks for a new Term. #SCOTX #txlege pic.twitter.com/CJ25eJ9NsB

— Justice Don Willett (@JusticeWillett) September 1, 2015

To the numerous United States Senators out there who I am sure read this blog on a daily basis: You're welcome.

READ MORE - Justice Willet: A Confirmation Hearing Outline

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