Originalism v. Common Law

"The one thing we can say about Roe is that it did not settle the issue."

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Judge Edmund Sargus from the Southern District of Ohio joins Sarah and David to take on originalism and different means of constitutional interpretation.

The Agenda:
—Brown v. Board of Education and the different judicial philosophies that can be applied to the case
—Originalism vs. common law traditionalism
—Challenges and limitations of textualism and originalism
—Landmark cases and the Supreme Court’s decisions shaping societal progress
—Interpreting ambiguous constitutional terms like ‘equal protection’ and ‘due process’
—Thus ends DEI

Show Notes:
—Plessy v. Ferguson
—Rutan v. Republican Party
—Bostock v. Clayton County
—Loving v. Virginia
—A blast from the past: Rep. James A. Traficant found guilty of corruption
—David for the NYT: The Magic Constitutionalism of Donald Trump
—Seceding from Secession: The Civil War, Politics, and the Creation of West Virginia
—Fifth Circuit opinion from Judge Andrew Oldham

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Comments (66)
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  1. Cmires

    Sure wish you guys had had a bit more time with the Judge. I had always thought Common Law had a pretty full history and definition upon which to compare and debate? Hearing David and the Judge go back and forth gave me none of that. Certainly not enough to give Common Law more than a passing glance. Gave me no more comfort than the Common Good approach. And don’t get me started on Breyer and purpose driven. Has he gone mad? Is this some kind of Rick Warren justice meant to appeal to the high-minded? I will still take originalism on its worst day.

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    J Bryant

    Just looking at the very welcome qualified immunity decision pertaining to my fellow Texans a bit east down I-10... I do agree with the general praise of the writing, but I think the line "We affirm. (Obviously.)" suffers a bit from the parentheses.

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    MBF

    Mark
    I find David's statement of an appropriate interpretation process the most interesting all issues considered because it uses (what I view) as the best aspects of the various interpretation approaches and includes a presumption against perversion of the obvious written intent (e.g. the Plessy decision). The discussions in this and in other recent AO podcasts add support to the view that in many respects Supreme Court jurisprudence suffers from the lack of a consistently applied interpretative methodology, which in turn harms the Court's credibility by casting it a a quasi-political institution.

    With respect to common law traditionalism, I probably missed it in prior episodes and related comments, but has the interpretation issue been analyzed from a "contract" perspective, as in viewing the Constitution as a contract among the States and using contract interpretation principles to determine the intention of the parties (the ratifying states) at the time the contract, i.e. the Constitution, was ratified, and making revisions to the "contract" subject to rules of mutual consent or ratification by all parties to the "contract"?

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    Jaredmanly77

    The guest was interesting and amiable, but I didn’t really follow what his philosophy was. Is there a SCOTUS justice with current comparable frame of philosophy? Common Law is referred to quite a bit in writings of Scalia( and Thomas) …
    It also seemed like much of the criticism of Originalism Was outcome based which seems like it misses the point. constitution can be amended , laws can be passed. Maybe it was just the polite nature of how the conversation unfolded…

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  5. Viki

    Judge Sargus was a great guest! Towards the end he mentioned the subject of Virginia splitting . Living in California and how the issue of north vs south sometimes rears its head, I will be looking into his book .
    David thank you for bringing in subject of 2A in context of original and judges response of originalism vs common law. really interesting!

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  6. Ginny

    Disclaimer: although I’m "law school curious", I’m neither a lawyer nor a law student. I am lowly philosophy student interested in metaphysics of law and jurisprudence to an extent. So if most or all of what I say is wrong on its face, I entrust myself to the well meaning commenters to benevolently correct my errors.

    I really appreciate how Sarah and David have sought to address the Brown v Board objection head on because I think it’s a real issue for their position. I’d like to push it a bit more though. I found David’s distinction between “good originalism” and “bad originalism” to be helpful in understanding where he’s coming from, but I’m not sure how much “good originalism” helps with the larger worry the Brown decision teases out. A major justification for originalism in my eyes is that it dovetails so nicely with the American account of political legitimacy and lends it to our legal system. By this, I mean that our country’s founded on the notion that the legitimacy of the government comes from the consent of the governed. In the judicial sphere, a strict reliance on the original public meaning of the text bears that principle out in how our laws are interpreted and applied. Original public meaning originalism tells us that it doesn’t really matter what an individual legislator intended but rather what the meaning of the ratified text was to the public on whose behalf legislators ratified it. The legislators were and are stand ins for the public. Insofar as legislators consent to a law by ratifying it, it is the public that consents to this governmental enactment through their representative. Laws whose interpretation stays true to what the ratifying public understood them to be maintain this causal chain of consent. The binding force of a given constitutional provision traces back to its political legitimacy from the consent of the ratifying public and that force carries through subsequent generations who implicitly consent to the laws preceding them by choosing not to amend the Constitution in accord with different preferences (which we could in theory do through our elected representatives). Original public meaning originalism upholds this intergenerational, causal chain of the consent of the governed by keeping to precisely what that ratifying public consented *to*. Anyways, David’s notion of “good originalism” in the Brown v Board context would give weight to what we now understand equal protection to be and entail, as opposed to what the ratifying public understood it to be and entail. That public wrongly consented to a reading of "equal protection" that diverges from our morally correct, contemporary reading. We of course recognize that racial segregation in schools is by no means equally protective of all students (different treatment of the basis of race, duh) and bars segregated schools. But the ratifying public didn’t have this understanding and didn’t consent to such an enactment. Schools were segregated all over the place during the ratification of the 14th and if I’m not mistaken, they were even segregated in DC up until the SCOTUS term when Brown was decided. As far as I can tell, David's "good originalism" approach would have us break this causal chain of consent and depart from what the public took themselves to be ratifying. Even though it's a good outcome in this case, it strikes me that it undermines a basic premise of originalism, namely, that we're concerned with the preservation of the communicative content of the document that the public consented to and thus legitimated.

    Of course, David was applying "good originalism" to the plain meaning of “equal protection” in the context of female voting rights not Brown per se, but I think the general issue cited above applies here as well and reveals additional worries. When it comes to a woman’s right to vote being implicated by equal protection, the hosts noted that this wasn’t the case at the time of ratification. I recently read Tocqueville’s essays on women in Democracy in America for a class, and this discussion reminded me of some of those passages that I thought might be useful. Tocqueville discusses how women in the 1830's (not too far before the 14th Amendment) were seen as intellectually equal to men but not “alike” in how society should treat them. As it pertains to the political sphere, Tocqueville makes clear that no one doubted women’s intellectual capacities to engage but just didn’t see it as a fitting activity given domestic needs and the morally laden, male-female bifurcation of duties. Basically, the idea was that men and women were of equal intellectual prowess but their natural differences and the moral good of the community required that women and men not be treated "alike". That generation’s understanding of “equal protection” was totally different, and it seems like there's reason to think it didn't implicate "alike treatment". *To be clear, I’m a young woman who is (mostly) in agreement with the third wave feminist movement and who benefits immensely from being allowed to pursue higher education and engage in the political process, so I’m in no way condoning this view of women*.

    With that said, David's plain meaning interpretation of equal protection to yield women's suffrage via the 14th Amendment is directly contrary to how the ratifying public interpreted that phrase. Once again, we have this worry about what the source of legitimacy would be for the enforcement of this legal provision (since it didn't originate with the public even if this public happens to agree with it now). Moreover, it's unclear to me that David's "good originalism" really fixes the meaning of the text in any real sense. Evidently, our plain meaning of equal protection is different than the ratifying generation's, and I don't see a principled reason to think that meaning couldn't continually evolve to give the force of law to a different meaning 50 years from now. I suppose what I'm pushing back on is the implicit contention that the "plain meaning" of the text as we now read it was truly the "plain meaning" through all time. The denotations and connotations (and thus their implicatures) of words/phrases change over time, and I fear that David's approach doesn't offer a remedy. Going back to the equal protection example, I don't see a principled stopping point for the evolution of an interpretation of “equal protection” as social, moral, and linguistic changes proliferate. "Equality", in particular, is a morally loaded term of which our collective understanding of has changed tremendously over time.

    It seems to me that the legitimacy and fixedness worries are problems for common law-ism too. Setting that aside, I’d be curious to hear how Judge Sargus sees US common law-ism as distinct from British common law-ism given our adherence to a written constitution versus the Brit’s lack thereof. I think Judge Sargus’s emphasis on the text is well taken here, but I’d like to hear it fleshed out in a more systematic way to make that firm distinction on the basis of our political, jurisprudential, and moral superiority. What about his common law-ism is distinctively American?

    Most importantly: I’d love to hear the hosts address whether they think originalism is a universally good theory of constitutional interpretation or whether they’re only committed to it in the state of the American legal system as it has stood for the past 50ish years or so (by which I mean a state in which our laws are fairly morally sound). I ask because originalism falls within the legal positivist framework on jurisprudential theories. Accordingly, if one were a state court judge prior to the Civil War in certain states, being originalists would seemingly require upholding and enforcing slavery. Relatedly, at the federal level, originalism seems to give us the horror that is Dred Scott (it reads pretty darn originalist to me, but feel free to correct me on that). I suspect David would say that we should focus on the plain meaning of phrases like “all men are created equal”, but this again creates those worries I pointed to earlier. To us, "all men are created equal" is pretty straightforward and
    carries the implicature of equal treatment, equal political rights, etc. But the "plain meaning" of that contemporaneously straightforward phrase was super hotly contested! Akhil Amar, for instance, has argued that southerners like Thomas Jefferson understood those words to refer to a social contract theoretic schema on which men were “equal” in the state of nature, but not necessarily upon the set-up following the social contract.

    I’d also be curious to hear people’s thoughts on what I worry are real epistemological hurdles for originalism. In particular, I struggle to see how we can derive a principled threshold for true beliefs about historical phenomena that are sufficiently justified so as to constitute knowledge according to which we're comfortable allowing judges to reach decisions. Put differently, how certain do judges need to be about the original meaning of the text to be justified in allowing that historical exegesis to be dispositive?

    Personally, I think that originalism’s best argument is a pragmatic one. It’s the best method for our current constitutional system (not sure if I believe this mind you), which is presumptively morally just in its substantive and formal composition. In a world like Dred Scott, I don’t think originalism is the best method, but there also may not be a best method, judicially speaking. At some point, a government refutes its own existential justification by failing to protect its citizens. As to overturning Dred Scott or Plessy, you might think that’s a big enough problem that we have to take to the streets, not the courthouse.

    Turning briefly to the common law-ism approach, one thing I found interesting is that it seems much more conservative than originalism in a Burkean minimalist sense. It reminded me a bit of the institutionalist jurisprudential axis Sarah’s mentioned. Institutionalism elicits consequentialist reasoning, but it seems like it also often amounts to a common law approach. I'm thinking here of how an institutionalist judge like Justice Roberts might focus on issuing a narrow ruling to avoid overturning cases willy nilly. He's engaged in consequentialist reasoning in an attempt to preserve the public perception of the Court, but in practice, he's intentionally not squashing precedents or making big waves. Is institutionalism essentially common law-ism motivated by consequentialist justifications?

    Apologies if much or all of this is rendered void by my general ignorance of how legal stuff works in practice. These were just some things I was mulling over, and I'd love to get some insights from people who were/are law students and/or practice law.

    As an aside, in case anyone’s interested, David Strauss has a book “The Living Constitution” that offers a robust theoretical defense of Judge Sargus’s “common law-ism" from a conservative perspective. It’s well worth a read. As to the discussion of originalism that the hosts have had over the years, I was thinking people might find Lawrence Solum’s paper “Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate” (2019), which goes into far more details on the different academic species of originalism (approximately 4) and living constitutionalism (approximately 10), respectively. It also distinguishes between academic versus judicial versus political originalism, which I’ve found helpful in trying to track the different ways in which “originalism” gets used, whether in an in the weeds academic debate, or a judicial opinion, or a matter of insubstantial rhetoric.

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    1. Chris CZ

      This comment is freaking great. 10/10, no notes.

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      Scarlette Tarte

      They should actually have you on to discuss these issues.

      Great comment. You bring much better light to the subject than their guest.

      See here, David? Sarah? Right here in the comment section you have someone who presents great points on judicial philosophy.

      As an aside, I read Solum's paper a few years ago. Pretty great stuff. Thanks for bringing it up and reminding me of it.

      And speaking of guests, Solum would make a good one.. Strauss as well.

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      1. Ginny

        Thank you for the kind words! I am far too young/uneducated for such an honor, but I completely agree they should invite Professor Strauss and Professor Solum onto the pod!

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          Scarlette Tarte

          You are neither too young or uneducated. Keep up the good fight, I hope to hear more of you and from you in the years to come.

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  7. Jantziad1

    I don't know if the ads are dynamically inserted or Adaam inserts them manually, but this was the second episode in a row where he cut to the ad break after Sarah says "I have a question for you" and the ad I got served starts off with the question "how would you like to look 5 years younger?". I thought it was great that Sarah was continuing to make fun of David's age, even in the ads, but this week I don't think she would intentionally ask Judge Sargus that question. At any rate, if this is Adaam doing it intentionally, keep it rolling!

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  8. Joe

    Fascinating conversation with Judge Sargus. I just want to press David with this Equal Protection analysis with respect to women's suffrage.

    Section 2 of the 14th Amendment deals specifically with congressional apportionment and voting rights. The section reduces the amount of Congressional representation a state shall have if a state denies "the right to vote at any election...to any of the MALE inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime."

    The text on the page of the 14th Amendment specifically denies women from using the amendment to demand a right to vote. No public meaning interpretation is needed. I wouldn't be surprised if Section 2 was written the way it was because there was some concern that women would use Section 1 to demand equal suffrage rights under the law. Especially given that there was a robust women's rights movement happening at the time.

    And that is why the 19th Amendment was needed to protect women's suffrage in the Constitution.

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    Taylor

    Best episode ever? I certainly had a genuine smile on my face the entire time listening. Judge Sargus made a few compelling arguments. Such a great guest and then the post-interview part felt like its own distinct mini-episode that was also fantastic.

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    Tele

    Slightly ironic to hear the Oldham qualified immunity case, and then watch North By Northwest on TCM.

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