Real Originalism Has Never Been Tried

Student loan forgiveness: elephants in mouseholes?

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Sarah and David explain the jury questionnaire in Alvin Bragg’s case against Donald Trump before getting into the weeds of the origins of originalism.

The Agenda:
—How to select a jury for Trump
—Celebrity trial jury instructions
—Biden swings again at student loan forgiveness
—Did the Warren court birth originalism?
—Originalism vs. platonic idealism
—More questions from a high schooler
—How do judicial ethics actually work?
—The myth of the 6-3 court
—The most important SCOTUS decisions

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Comments (85)
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  1. SZ

    Much more difficult to square with originalism than Brown v. Board of Education 347 U.S. 483 (1954) is its companion case, Bolling v. Sharpe 347 U.S. 497 (1954). (Notice that it is literally the next case in the reporter.) After finding that states could not have separate educational facilities by race because this violates Equal Protection, they decided that Washington, D.C. could not have separate educational facilities by race because this violates....due process. Why? Because the 14th amendment (equal protection) does not apply to non-states (D.C.), so they had to use the 5th amendment (which has a due process clause). The Court was pretty transparent about its reasoning: "In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government."

    In part motivated by this issue, Ilan Wurman argues that "privileges or immunities" (14th amendment) and "privileges and immunities" (Article IV) are best read as creating a broad "anti-discrimination" principle that is violated by school segregation. I am not sure I am wholly convinced, but I do think that PI is the strongest originalist foundation for many individual rights. Slaughterhouse!!!!! (Shakes fist.)

    Also, I am convinced by the argument (to which Wurman agrees) that equal protection originally just meant that states must enforce their laws universally and non-selectively--but it doesn't mean that laws have to be written in a way that confers equal treatment or benefits (the modern understanding of a broad "equality" principle). Equal protection seems clearly aimed at the (original) concern that states might have criminal laws on the books that they don't enforce to protect black people from mob violence. On this interpretation, interestingly, equal protection would not outlaw school segregation or affirmative action programs. (Thus Wurman relies on the broad anti-discrimination principle from PI.) That said, I think the broader understanding of equal protection is plausible--much more so than "substantive due process"--and perhaps one place where I am willing to be a less strict originalist for positive consequences!!!

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  2. Austin from Atlanta

    Sarah & David are way too generous here in presenting “let’s operate as if laws are a real thing” as something that should ever plausibly be considered optional by serious people or people with the power of judicial review.

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  3. Mrjsfisher

    Regarding the missed opportunities of the Obama administration - I was horrified that it was Obamacare and not massive systemic reforms that were pursued. Federal anti gerrymandering legislation. Post-Great recession Robust regulation of financial services industries beyond the late Bush era legislation. Massive Keynesian investments in infrastructure and education at a time of effectively negative interest rates. Health care was and is a 10-90 issue not a 70-30 issue and it made no political sense to pursue. But that was largely Nancy Pelosi’s fault like so many other missed opportunities of the last 16 years.

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      Kmregan7

      I get it though I wish it had been some form of Medicare for all (public option, or letting more people qualify for Medicare)
      Or even somehow go back to what we had before HSAs and health insurance and all the rest (I was a kid so I can’t speak intelligently about it but I don’t remember my parents having massive medical bills or ever worrying about going to the doctor regularly until I was much older)

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  4. V_hannah

    I am writing in response to David’s request for arguments against the claim that originalism could produce the correct outcome in Brown. As a disclaimer, I’m not a lawyer/law student, just a lowly philosophy student interested in metaphysics of law and legal epistemology. I still find the jurisprudence stuff interesting, though, and love listening to the pod, so I thought I'd give it a go.

    As to why originalism doesn’t get us the right outcome in Brown v Board:

    Schools were widely segregated throughout the country during and following the ratification of the 14th Amendment, most notably in DC itself (I believe there was a case handed down the same day as Brown that struck down segregation in that school system?). Evidently, people in 1868 did not think equal protection under the law/privileges and immunities/due process carried over to that arena. At this point, I suppose you could raise the Alien & Sedition Acts point, namely, that legislatures sometimes do things that are orthogonal to the constitutional provisions they themselves enacted. But I think that’s a disanalogy in a couple respects. First, A & S was enacted after the ratification of the Bill of Rights, so there’s a case to be made that the legislature just reneged on its promise later down the line when the political incentives shifted. But in the 14th Amendment’s case, the public obviously didn’t see themselves as making a promise extending that far to begin with; they saw the 14th Amendment as consistent with the school system in the very city in which the legislature ratified it. It just seems like the "original meaning" of the words at the time of their enactment sadly just wasn't what they *should* have meant. I get the point that you should just look at the plain meaning of the text, but if our plain meaning can be in total opposition to the original public meaning in this particular case, are we really still being originalists? I don't mean this pejoratively, but a variety of schools of living constitutionalist thought emphasize the plain meaning of a text (they just don't take it to be dispositive). If we can imbue the "original public meaning" such that it leads to a meaning capable of producing outcomes directly opposed to those that the original public consented to via their representatives, is that really originalism anymore? Plenty of living constitutionalists agree that we should look to the text—they aren't so far gone as to be atextual Brits! They just read the text with an eye towards things beyond precisely what the original public took it to mean, which seems to be what's going on here. It just looks "originalism" is reading our meaning (which is obviously the morally correct one) into the text.

    I'll pause briefly for a probably stupid, non-lawyer side question: if equal protection under the law and privileges/immunities were supposed to be understood in the way we understand them now as ensuring rights for all citizens regardless of race, why did the legislature have to pass the 15th Amendment? Shouldn’t black Americans have already had the right to vote as a matter of equal protection, if not privileges/immunities?

    I think a bigger problem with originalism that I would love to hear the hosts discuss in a future episode is whether they think originalism is a universally preferable theory of constitutional interpretation, or whether they're only committed to its tenets in the American context for the past 50ish years or so (by which I mean a country in which our laws are fairly morally sound). I ask because originalism falls within the legal positivist framework on jurisprudential theories, so there isn't supposed to be any morally normative readings or interpretations on behalf of jurists. 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 according to the plain, original meaning of the laws. Relatedly, at the federal level, originalism seemed to give us atrocities like Dred Scott (as I read it for a class, it sounds pretty originalist to me, but feel free to correct me on that). One could maybe try to read the “all men are created equal” line from the Declaration as an informative backdrop shaping the way the original draft of the Constitution should be read, but the meaning of an ostensibly straightforward provision like that is still super hotly contested (Akhil Amar, for instance, has argued that southerners like Thomas Jefferson understood those words to refer to a social contract theory schema on which men were “equal” in the state of nature, but not necessarily upon the set-up following the social contract). Suppose that there's some clever lawyer way of getting out of this worry as a historical matter: suppose you're a judge in a deeply unjust regime with crystal clear laws calling for religious minorities to be jailed or banished and that leave no doubt as to the original public meaning: are you still an originalist then? Obviously, fill in the hypo so that you as a judge have the power to effectuate change and save lives if you wanted to without recourse, etc.

    Setting that aside, there are also real epistemological hurdles for originalism that I think it would be great if the hosts could say a bit about in the future. More specifically, it’s unclear to me what the threshold is for true beliefs about historical phenomena to constitute knowledge. Setting that aside, how sure do judges need to be about a historical proposition to be justified in allowing it to be dispositive in their deciding a case? Maybe it's just me, but I sort of worry about basing constitutional decisions on something less than knowledge, even if it's justified belief that might be true. I suspect David will say this is why we need to prioritize the text itself so as to simplify the analysis and not be stuck furiously rifling through conflicting historical documents, but I don't think that resolves the worry. You still have to imbue the text with the *original meaning* of the words and that still doesn't generate clear answers. Re: the point about the dispute over “all men are created equal”.

    I really appreciate the points the hosts have made about originalism’s adherence to the rule of law, but it just doesn't strike me as all that small c conservative. Adhering to an originalist methodology in our system can lead to radical shifts in the understanding of what a law means. Contrast this with something like Burkean minimalism. Why don’t legal conservatives prefer this approach? It would certainly favor an institutionalist frame of mind and still allow for overturning precedents, just at a slower pace. Or at least, why not think that lower court judges should be Burkeans so as to adhere to precedent as closely as possible and leave the originalism to SCOTUS, who has more resources to engage in historical analysis? I guess I can see why one might try to apply them both, but it seems unprincipled to me, unless you have a governing principle governing your application of the Burkean and originalist principles, respectively.

    In answering some of these questions, it might help if Sarah and David specified which "flavor" of originalism they have in mind. Lawrence Solum has done great work on teasing apart the different originalist theories, and they can function pretty differently in practice. Solum distinguishes between three initial kinds of “originalism”:

    Political originalism: something akin to what David talked about with the common stance association of originalism with politically conservative outcomes. This is largely rhetorical.

    Judicial originalism: “the original meaning of the constitutional provision in question”. I mean this to be a fairly generic guidepost of how constitutional provisions should be interpreted.

    Academic originalism: constitutional theories that affirm two propositions:

    1. The Fixation Thesis: the meaning of the constitutional text is fixed at the time that each provision is drafted

    2. The Constraint Principle: roughly, that the constitutional practice should, at minimum, be consistent with the original meaning.

    Solum identifies four different originalist theories, along with a few hybrids. To answer questions like how originalism can handle Brown, I think it might be helpful to sort through and identify which originalist theory they affirm and why that one in particular. It seems like they resonate most with original public meaning originalism, which also strikes me as the most plausible option, but I think it suffers from the epistemological worries more than other alternatives given the more limited nature of our historical data concerning the general populace as opposed to original laws originalism or original methods originalism.

    Personally, I think one of the best argument for originalism 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 all of 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. But I'd be curious to hear other people's thoughts on this.

    I hope this isn’t all rendered void by my general ignorance of law. I enjoy the podcast/received a general education including some American history/law, but I recognize that’s no substitute for being a law student and this is indubitably full of blunders. Hopefully this post hasn’t been a complete waste of time for anyone foolish enough to read it, and if it has, I guess it'll further motivate a deeper focus on metaphysics of law and legal epistemology instead of this jurisprudence stuff.Expand full comment

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    1. Neil Alice

      Good stuff (tho maybe I skimmed some).

      Agree that the 1868 segregation of the Washington D.C. public schools is a tricky historical tidbit for a Real Originalist to square with the later holding in _Brown v. Board_.

      I also like this question: How come there’s a 15th Amendment when the 14th seems already to cover voting? I think the answer concerns lax enforcement and a weak remedy.

      Remedies are an important part of law that may not get the attention they deserve. The 14th Amendment’s remedy for depriving the vote to adult, male citizens (cf. "Indians") was to reduce the number of House seats for the vote-infringing State. This wasn’t a big enough deterrent, even if applied, to stop some states from taking away all kinds of things from freed slaves, including the vote.

      And lax enforcement of the 15th Amendment meant that voting rights were often infringed again, in defiance of the law, once Reconstruction ended in 1877.

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  5. Philip.R.M.Hunt

    I loved David's comment: "Libertarianism only works in Libertopia."

    That is exactly what I think. You can take any idea too far. Libertarianism is "classical liberalism" taken too far. It is one thing to prefer private, market-based action in the economy and be skeptical about government intervention, but it is taking it too far to worship the market as an infallible god and hate the government as a demon incapable of doing anything good. Classical liberals like John Locke, Adam Smith and Friedrich Hayek were wise and realistic, but Libertarians like Ayn Rand, Jay Nock, and Murray Rothbard were nuts lost in a fantasy world of their own making.

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  6. Eazy-E

    When I downloaded this podcast, every ad break played the same commercial for a local weed dispensary. I know The Dispatch doesn't select these commercials (it's digital ad insertion from a content distribution network), but do you have the ability to block ads for drugs or gambling?

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    1. Evan L

      Man Eazy really cleaned up…

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    2. BenP

      You might try a different app. I get different styles of ads using Pocket Casts than I do using Spotify, for instance.

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  7. Jason S

    I want to push back against your pushback against the idea that this is an extremely conservative court. I agree with the two of you that the ideological divide among SCOTUS justices is generally overblown, particularly because so many cases are decided unanimously. But I think that while you frequently discuss this issue, there are a number of things that your discussion doesn't account for, beyond the simple facts that not a ton of decisions actually come out along 6-3 lines and the liberal justices are still in the majority very frequently.

    1) You don't account for the cases where cert isn't granted but would be on a less conservative court.

    2) You don't account for the cases that DO get taken, where cert never would get granted by a less conservative court (e.g., June Medical, Dobbs, Harvard, 303 Creative).

    3) You don't account for the fact that one of the reasons why ACB and Kavanaugh and Roberts are not taking the "conservative" position in certain cases is because the position is way out of the conservative mainstream. That is, there have been a number of recent bonkers decisions by extremely conservative judges on the lower courts (especially the 5th Circuit). The fact that those decisions are reversed is not reflective of how moderate the SCOTUS justices are but of how extreme some of these lower court judges are. And frankly, the fact that some of these decisions can get any SCOTUS votes shows just how much the Overton window has shifted.

    4) Narrowing the focus to the merits docket ignores the extremely narrow and divisive rulings on the shadow docket.

    5) This discussion also ignores the political/ideological significance of the cases that are decided along the "standard" 6-3 lines, however few in number they might be. I take your point that the import of a given decision is in the eye of the beholder. But if you look at things like culture war issues, party platforms, etc., it is the types of cases confronting those types of issues that are much more commonly coming out along those partisan lines (Dobbs, Harvard, 303 Creative, Brnovich).

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      We have dissents from denial—and we do get several of those from Sotomayor for example—so we have some idea of which cases aren’t getting a 4th vote. I think the bigger evidence is that fewer cases are getting granted than before, meaning that the conservative justices aren’t voting to take them, meaning that they don’t think they have 5 votes to win the conservative outcome.

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  8. New reader

    I've been wondering for a while if y'all could provide a more exact definition of what y'all mean by "originalism." It seems like David goes straight to the text of the Constitution, which makes sense to me personally and seems like the preferable route. But I am curious whether originalists are supposed to look at the words (ie just the Fourteenth Amendment) or also at what the words meant at the time? I've heard some people do it David's text first and most important way, but others seem to view the words in the context of what they were understood to mean at the time (which seems to be when the problematic history comes in). And if you are just looking at the words, is it what the words mean now (citizen encompasses women in the 14th Amendment), or what they meant at the time (not so much).

    Second, Sarah, how do you think about Justice Black in your characterization of the Warren court as "the nine platonic guardians"? I've heard scholars (like Akhil Amar) talk about him as the original originalist (which to me lends more credibility (or at least serves a strong counterpoint to criticism) to the theory when the other option is originalism is the brainchild a Republican administration). I'm also curious where a philosophy based on judicial restraint would fall on the "real originalism to nine platonic guardians" spectrum?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Originalism is original public meaning. So what the text meant at the time of ratification/passage. And from there, we spin off into all sorts of law review articles!

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    2. Neil Alice

      This first point seems like another way of asking, “What’s the platonic ideal of originalism?” I like both of your answers, regarding original intent and, especially, the text.

      Consider the fight to keep Judge Robert Bork off of the Supreme Court in 1987. Some of his opponents argued that Judge Bork's originalism could not explain the result in _Brown v. Board_ even though everyone knows that it was correctly decided.

      This argument against originalism rested on history: the same Congress that wrote the 14th Amendment in 1868 also passed laws that funded the public schools in Washington D.C., which were segregated. This suggests that the 14th Amendment’s drafters believed that the Equal Protection Clause was consistent with separate-but-equal schools. But if this focus on an original intent even hints that _Brown v. Board_ was wrongly decided, then the problem must be originalism.

      As you’ve noted, though, there’s a counterargument that focuses on words and language. The 14th Amendment’s text is consistent with prohibiting segregated schools. And maybe Congress had lots to worry about in trying to rebuild the South in 1868 or working on the 15th Amendment.

      Judge Bork’s opponents, who were mainly liberals, had another reason not to like him because earlier in his career he had obeyed some questionable orders from President Nixon during Watergate’s Saturday Night Massacre. And it seemed more like his opponents preferred their own brand of activism, which involved penumbras that are tricky for an originalist to find in any text.

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    George.Skinner

    It seems like there's a longing in the legal profession for the law to be some sort of immutable, impersonal enduring truth like classical physics or mathematics. In reality, it's a human construct that changes and drifts with the society that produced it. The advantage of originalist doctrine is that it at least attempts to connect the law as it's practiced to some founding principles, which is much the same thing that the British common law approach attempts as well. The path from Plessy v Ferguson to Brown v Board of Education is one illustration of how interpretations change; the many apparently unconstitutional laws and acts passed immediately after the introduction of the Constitution is another (kind of throws a wrench into "original meaning" when many contemporary legislators apparently didn't understand the founding document...)

    The funny thing is that classical physics and mathematics are also products of the same Enlightenment belief in rationality and the idea of a perfect clockwork universe. Classical physics works well to explain much of the relatively confined world that humans experience in daily life, but was found wanting in many other ways, leading to relativity and quantum mechanics. Mathematics is just a human model for describing phenomena, with a simple example being the endless lowbrow internet debates about math problems that end up just being about how you define your order of operations.

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    1. MathewA

      "kind of throws a wrench into "original meaning" when many contemporary legislators apparently didn't understand the founding document"

      not really. It's quite clear that administrations try to do illegal or unconstitutional stuff all the time and see what they can get away with. See DACA, student loan forgiveness etc

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    Rev Snow

    The originalism discussion leaves out some of the fundamental underpinnings, at least as I learned about it. (As I recall, from Justice Scalia's book, A Matter of Interpretation). The key is that the Constitution is a law. Like all laws, it is a record of an agreement. When courts properly interpret it, they enforce that agreement. When courts fancifully interpret it, they impose new requirements never agreed to. This violates the principle of consent of the governed.

    The originalist frame is "what has been ratified?" That's why over time the description for the general public has settled on "what was the original public meaning?"

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