February 18, 2020 Appellate Issues | Winter 2020

Are We All Originalists Now?

By Steve Emmert

Is the Constitution a static document, the meaning of which is set in stone until the people chisel in an amendment? Or is it a dynamic, flexible set of principles that adapts to each new age – a “living” document? Four close observers of this ongoing debate explored these and related questions in an often lively 75-minute segment at the Summit.

Prominent appellate advocate Kannon Shanmugam, the chair of Paul Weiss’s Supreme Court and Appellate Practice Group, began the discussion by invoking the most famous proponent of originalism in recent times, the late Justice Antonin Scalia. Shanmugam, who clerked for Scalia, expressed the justice’s view that originalism is to the Constitution what textualism is to statutory construction: “You start with the language used.” But the Constitution is a product of Eighteenth Century thinking and Eighteenth Century language. To understand the drafters’ thinking, one must understand the Eighteenth Century meaning of that language.

Shanmugam was quick to add that originalism is not an effort to divine the Founders’ intent; its practitioners seek instead to find the public meaning of those terms when they were written. That meaning can clash with more recent precedent, and hence with stare decisis.

Pulitzer Prize winning historian Joseph Ellis, a scholar of the founding of the nation and biographer of several of the Founders, offered a non-lawyer’s perspective. “I have direct access to the Founders,” he announced to a sea of chuckles, “and they aren’t originalists.” He reported the Founders’ view of the Constitution as a framework, not an eternal truth. It was intended to change over time. He cited Jefferson’s observation, “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

University of Chicago Law professor David Strauss, author of The Living Constitution (2010), cautioned that some of the Founders’ views differed significantly from modern ones. For example, that generation passed the Alien and Sedition Acts during the John Adams Administration. One must admit that these laws were wholly inconsistent with our current views of the First Amendment, in that they punished advocacy speech.

Strauss sees four problems with originalism. The first is “ascertaining what it is,” the subject of the longest component of the written materials for this presentation. The second is translating into modern conditions what the Founders believed. Here, he gave the example of a Second Amendment written in the era of single-shot, muzzle-loading flintlocks. Debate over this Amendment might well have ended differently if the Founders had envisioned assault rifles and grenade launchers.

Third, Eighteenth Century ideas may prove inappropriate for solving Twenty-First Century problems. Here, Strauss imagined a hypothetical framework for resolving modern American legal disputes using the law of modern New Zealand, adding that our laws, and our problems, have far more in common with modern New Zealanders than with our own remote ancestors. Finally, he contended that resort to originalism abdicates our responsibility to think for ourselves, offering the crutch of rote adherence to hoary ideas.

Georgetown Law Professor Victoria Nourse, who moderated the discussion, asked the panelists how a resort to originalism affects our modern constitutional jurisprudence. Ellis jumped in immediately with District of Columbia v. Heller, 554 U.S. 570 (2008), which he believes reversed 200 years of precedent. He noted that for many years, the National Rifle Association advocated for an individual right to bear arms, and the Republican Party began to include this in its platform starting in 1980.

But for the Founders, he explained, the Second Amendment referred only to service in the militia. The Militia Act of 1792 required each able-bodied male citizen to obtain a firearm (the Act specifies “a good musket or firelock”) and kit, to facilitate participation in the “well regulated militia” described in the Amendment. The real meaning of the Amendment, Ellis perceives, was the obligation to serve; not the right to own a gun. Scalia described the majority opinion in Heller as “my masterpiece”; Ellis believes that this is because the ruling transformed this service obligation into an individual right, something that no opinion before had ventured to declare. Ellis described this as revisionist reasoning, not true originalism.

Shanmugam here interjected that only a jaundiced view of judicature leads to the conclusion that judges use their office to advance their personal views. Scalia himself often had to vote against his own preference, such as in Texas v. Johnson, 491 U.S. 397 (1989), where he joined a narrow majority in holding that flag-burning is protected under the First Amendment. Strauss agreed that this broad criticism of judges was unfair, but added that originalism can make it too easy to pass off responsibility onto the Founders. The modern trend is to treat even constitutional text as a brief introduction to analysis, then shuffle it off the stage to dive immediately into caselaw.

But the living Constitution “isn’t a free-for all,” he noted. There are bounds to the analysis, and stare decisis, comprising the more recent interpretations of what the original text meant, “is the law.”

Here Ellis interposed the accusation that originalism was created as a way of sweeping stare decisis aside, to overpower precedent so that a court can overrule it. He pointed to Lewis Powell, in his work before he joined the Court, as the author of the modern concept of originalism as a weapon for this purpose. Ellis continued that various conservative organizations – including the Heritage Foundation, the Cato institute, and eventually The Federalist Society in 1982 – seized on this approach to undo the doctrines and policies of the New Deal. This, he perceives, is an effort to “advance a right-wing political agenda – and they’re succeeding.”

Nourse then invited the panel to shift gears and address whether the two political branches of government have effectively ceded power to the judiciary. Shanmugam felt this was more of a problem with statutory than constitutional issues. He noted the obvious – the current “breakdown of the legislative process,” where “Congress can’t pass anything” – and observed that the courts can no longer rely on the legislature to fix things.

Strauss echoed this concern, describing the paralysis in Congress as “extremely important to American law,” but adding that administrative agencies as well as the courts now bear much of this lawmaking burden. He explained that the 1980s revival of conservative originalism was also a reaction to liberal decisions from the Warren and Burger Courts.

Strauss queried whether the Constitution is best viewed as open-ended. Yes, he answered, giving the example of the First Amendment. Its text only bars Congress from taking certain actions. “Does this mean that the President or the courts can violate these prohibitions? Of course not; that’s why we interpret it through caselaw.”

Ellis opined that the Founders would view with alarm the power of courts in the Twenty-First Century. He raised eyebrows with the observation that, in the Founders’ view, “The Supreme Court’s not supposed to be supreme.” He explained this in the context of Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), where Chief Justice John Marshall authored an opinion that President Andrew Jackson found … less than persuasive. Jackson’s perhaps-apocryphal retort, “John Marshall has made his decision; now let him enforce it,” illustrates that many early Americans may have seen the courts as something less than coequal. “The power of the Supreme Court has grown exponentially since World War II,” Ellis noted, adding that the Founders would not approve.

The panel next took up the practice of “gerrymandered text,” where one surgically removes a word and analyzes its meaning without supporting context. All panelists criticized this practice, concluding that it “discredits the entire enterprise” of interpretation (Shanmugam), constitutes “manipulation” (Strauss), and occasionally “interprets words into the Constitution” that aren’t there (Nourse). Ellis expressed the view that if a modern advocate were to present Scalia’s originalist reasoning for the Heller decision to a blue-ribbon panel of historians on early America, “he’d be laughed off the stage.”

And yet here we are; Heller is the law of the land, based on an ahistorical view of the Founders’ concept. Ellis concluded that “the great sin of originalists isn’t that they have preconceived notions, but that they claim that they don’t.” Strauss urged that the generations of guidance, in the form of interpretive decisions over the years, were too valuable to discard in a rush to originalism. And Shanmugam pointed to the value of precedent as that guidance when it’s necessary to fill in gaps in the law.

While the topic was serious, there were lighthearted moments. Early in the program, after Ellis drew those chuckles by claiming to be in communication with the Founders, the alarm on Nourse’s cell phone went off. As she sheepishly moved to shut it off, Shanmugam offered, “It’s John Marshall calling.” Ellis, without missing a beat, answered, “That must be for me.” Shanmugam retorted, “He never returns my calls.…”

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    Steve Emmert

    Steve Emmert is a partner at the Virginia Beach firm Sykes, Bourdon, Ahern & Levy, where he focuses exclusively on appellate practice, primarily in the Supreme Court of Virginia. He is a Phi Beta Kappa graduate of Richmond College and received his law degree from the University of Virginia. He founded the Virginia Bar Association’s Appellate Practice Section, and currently serves on the CAL Executive Board. He is married to former operatic contralto Sondra Gelb; they have one slightly spoiled daughter, Caroline.