"We Are All Originalists": A Response to Robert Peck and Phillip Seaver-Hall

This post responds to Robert Peck and Phillip Seaver-Hall, two contributors to this blog. Before I respond, I would like to thank Robert and Phillip for responding to my post, and for a great discussion on constitutional interpretation. I respect but disagree with their views, and below I provide a brief summary of why originalism, albeit imperfect, is the best method of constitutional interpretation.

1.    Robert and Phillip provide no credible alternative to originalism.

It’s easy to criticize and problematize. Whether it is a theory of constitutional interpretation, the flaws of implicit bias theory, or the discrimination against conservatives in the legal academy, anyone can identify flaws.

It’s harder to propose solutions.

So, what is the alternative to originalism? What interpretive theory do you support, and why? And why is that theory superior to originalism, particularly in adhering to the Constitution’s text, promoting democratic participation, and ensuring that citizens, not unelected judges, have an equal voice in determining the rights and laws under which they will be governed? In my view, Robert and Phillip’s critiques offer no alternative theory, or at least not in any great detail.

Regardless, the primary alternative – living constitutionalism – would be the cure that is worse than the disease. To be clear, in their responses, Robert and Phillip did not explicitly support living constitutionalism (or some variation thereof) but their arguments suggest that they embrace an interpretive method that at least prioritizes or at least includes elements consistent with living constitutionalism (e.g., considering contemporary values and attitudes, and relying on a provision’s underlying purposes). For example, Phillip states, “[w]hile the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.” That sounds like living constitutionalism.

Living constitutionalism, which, broadly speaking, states that the Constitution’s meaning evolves over time based on contemporary societal attitudes and circumstances that the Founders could not foresee, sounds nice, but the devil is in the details. At its core, living constitutionalism is a license for arbitrariness and subjectivity. What living constitutionalism really means is that judges can reach almost any outcome they want and for whatever reason they want. In short, it allows judges to drown in a sea of subjectivity. And when you are at sea in constitutional law, the result is often nine unelected judges imposing their policy views on an entire nation, where the Constitution’s text and the Founders’ understanding of that text becomes an afterthought – or an inconvenience. 

Furthermore, living constitutionalism does not always lead to the equitable results that its opponents believe, and it often involves manipulating or ignoring the Constitution. Let’s look at some of the decisions that “living constitutionalism” produces. To begin with, Dred Scott v. Sandford and Korematsu v. United States, decisions that reasonable (and hopefully even unreasonable) people would find abhorrent, were decisions that “living constitutionalism” produced.[2] As Justice Gorsuch explains, “each [decision] depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.”[3]

And how can anyone forget the poster child for living constitutionalism – Griswold v. Connecticut – where the Court acknowledged implicitly that the Fourteenth Amendment’s text did not provide a basis to invalidate Connecticut’s law banning contraception.[4] Yet, the Court decided to ignore the text and, out of thin air, create invisible constitutional “penumbras” that emanate from the text like Linda Blair rose from her bed in The Exorcist, or like steam rises from a hot apple pie, and from which the Court – and only the Court – could identify unenumerated rights. As the Court traveled into these invisible penumbras to create a right to privacy, the Constitution, again, became an afterthought. To be clear, a prohibition on contraception is utterly ridiculous. But it was for the people of Connecticut to petition their legislators to change the law – or vote them out of office – not for the Court to intervene and invalidate a law by inventing “penumbras” that, despite how hard you look, are nowhere to be found in the Constitution.

After Griswold, and as living constitutionalism gained traction, it gave us Roe v. Wade, where the Court discovered, either in those penumbras or in the jungle room at Graceland, a right to abortion.[5] Likewise, in Roper v. Simmons, the justices suddenly discovered that it was unconstitutional to execute a minor.[6] Yet, in Washington v. Glucksberg, the Court decided that the Constitution did not protect the right to assisted suicide.[7] So, women can abort pregnancies, minors cannot be executed, and we cannot take our own lives when terminally ill. What in the Constitution gave the Court the right to decide these questions? Nothing. And it has created a mess of constitutional jurisprudence where the political affiliations of the justices, not the Constitution, sometimes determine the outcomes.

Living constitutionalism also fails to constrain judicial decision-making. For example, consider living constitutionalism in the Eighth Amendment context. Phillip states that the Eighth Amendment should prohibit punishments that the Founders would consider cruel and unusual and punishments that are inconsistent with evolving standards of decency. How, exactly, can one possibly define what punishment violates evolving standards of decency? What does that even mean? Imagine judges sitting in their chambers and contemplating, “Hmmm…does executing a child rapist violate evolving standards of decency?” What will guide that determination? Subjective values. And why should a justice on the Supreme Court have the right to impose those values on an entire nation? Your guess is as good as mine.  Phillip provides one answer, stating, “one cannot determine what is "cruel" without engaging in a normative, moral analysis.” And that is the point – and the problem.

Likewise, in Kennedy v. Louisiana, the Court confronted the question of whether imposing the death penalty for raping a child under the age of twelve violated the Eighth Amendment. In a 5-4 decision, the Court answered in the affirmative, holding that executing a defendant for child rape was not consistent with “evolving standards of decency.”[8] Now, let’s assume that Robert, Phillip, and I had different views on whether imposing the death penalty for raping a child is consistent with “evolving standards of decency.”

Which view would be superior?

None of them.

After all, who am I to say that I know better than Robert or Phillip or have superior moral values such that I am more able to determine what violates evolving standards of decency?

Furthermore, I don’t think that citizens care what Robert, Phillip, or I think about this matter. I think they care about having the right to decide for themselves and have a voice in the democratic process. After all, this question, like the abortion question, depends largely on a person’s moral values. Thus, why should nine unelected and life-tenured judges decide this question, rather than the citizens of every state in this country? They shouldn’t. Living constitutionalism invites subjectivity, shows a lack of humility, and it enables morality to become the basis for judicial decision-making.

To be clear, I am pro-choice. I do not think that we should execute minors. I believe that laws against contraception are ridiculous. I support same-sex marriage. And I am neither conservative nor liberal. But, again, who cares what I think? Why should the Court be deciding these questions when the Constitution says nothing about them? As Chief Justice Roberts stated in Obergefell v. Hodges, “just who do we think we are?”[9]

Don’t be fooled. Advocates for living constitutionalism want the Court to reach outcomes that further their political agenda and thus reach what they believe are the “right” outcomes. But courts don’t exist to reach outcomes that you like, and if we base our view of the Court solely on whether the outcomes it reaches comport with our policy preferences – or what we perceive as the most just or moral outcome – then we are responsible for politicizing the Court and delegitimizing the rule of law.

Additionally, the process by which the Court makes decisions is critical to ensuring the Court’s legitimacy and ensuring that constitutional meaning does not change simply because its composition changes. Look no further than Dobbs v. Jackson Women’s Health, where the Court’s decision, although certainly defensible on originalist grounds, resulted, as a practical matter, from the fact that the Court’s composition had changed in a conservative direction.[10] So, for advocates of living constitutionalism, I am curious how they would feel about Amy Coney Barrett, Samuel Alito, and Clarence Thomas basing their decisions on subjective values. That is why living constitutionalism fails – it politicizes the judiciary. And it is why the text, and the Founders original understanding of what the text means, it vital to ensuring that judges do not venture into a sea of subjectivity (or any sea, for that matter), and that policy changes occur democratically.

Living constitutionalism is also elitist. You can often spot living constitutionalists from a mile away. It assumes that judges know better than the average citizen about what the ‘right’ outcome is in a particular case. That’s the point: living constitutionalism is about achieving an outcome that a small and elite group of justices prefer, and to reach those outcomes, they need to visit those invisible penumbras or create fictional doctrines like substantive due process. Judges don’t know better, and they don’t deserve that power.

At bottom, living constitutionalism assumes that, in the “heady days of the here and now,” the justices somehow know better, or are more enlightened, than their former colleagues, policymakers, or citizens.[11] It also assumes that, since contemporary society is more advanced and all-knowing in these heady days of the here and now, the results will always produce progressive, or more equitable, results. But who is to say (outside of obvious examples), what is progressive or regressive, and who is to say that living constitutionalism cannot result in what liberals would consider bad or regressive outcomes? If you doubt that, look no further than Dred Scott and Korematsu. And if you think that judges are more knowledgeable than they were a century ago, think again. Read Citizens United v. FEC, McCutcheon v. FEC, or Shelby County v. Holder, and you will see that the justices of today are no better or worse than the judges of yesterday.

Living constitutionalism also predicates constitutional meaning in substantial part on the purpose of a constitutional provision. But how can one know or define what the purpose of a provision is? And what if there are multiple or conflicting purposes? If so, how should these purposes be quantified, and which purpose should govern? Additionally, at which level of generality do you define a purpose because the broader the purpose, the less constrained the judge. For example, if a judge determines that the purpose of a constitutional provision is to protect “bodily autonomy,” or “liberty” then we are all in a lot of trouble. After all, what does “liberty” mean, and what principles exist to determine what “liberty” requires, and when restrictions on liberty violate the Constitution? For example, Justice Anthony Kennedy stated that “the Constitution promises liberty to all within its reach?”[12] What does that mean? It means nothing – and it gives judges the power to do anything they want in the name of “liberty.” As Justice Scalia stated, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”[13]

Indeed, consider the  “sweet mystery of life” passage, where the Court stated, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life?”[14] If that’s true, why is the Court defining liberty (and autonomy) for everyone in cases such as Roe, yet holding in Washington v. Glucksberg that the right to “define one’s own concept of existence” does not include a right to assisted suicide, and in Dobbs, reversing Roe?  Because the composition of the Court, not the Constitution, changed, and because its jurisprudence had strayed so far from the text that subjectivity and morality was the primary driving force underlying those decisions.

Living constitutionalism is nice when most of the justices align with your political views, but it’s not so nice when they do not. Think about Roe and Dobbs: in Roe, the Court discovered in the Constitution (or its “penumbras”) a right to terminate a pregnancy but then, nearly fifty years later in Dobbs, suddenly determined that the Constitution didn’t protect a right to abortion. What exactly changed in the “heady days of the here and now?” The fact that Justices Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch were on the Court.

This is not, of course, to say that originalism is perfect, or that judges don’t use originalism to reach outcomes that coincide with their policy predilections. And to the extent that bad judges use originalism to further a conservative agenda – which some do – they are equally blameworthy. As stated above, the Court is not here to reach outcomes that you like – and no one who believes in democratic self-governance should believe that nine unelected and life-tenured justices know more than anyone else about the “mysteries of human life.” Again, as Chief Justice Roberts stated, “just who do we think we are?”[15]

Importantly, however, can’t the same criticism be made against originalism, namely, that it advances the political preferences of conservative justices? Of course. But that, as stated above, is a product of bad judging, not of originalism itself. And originalists often reach outcomes that do not coincide with their policy preferences. Consider, for example, Justice Scalia’s Fourth Amendment and Confrontation Clause jurisprudence. Is that ‘conservative’? Is it a conservative result to decide that the First Amendment protects the burning of the American flag, a decision in which Scalia joined the majority but stated in an interview that he would outlaw it if he were a legislator? No. In other words, Justice Scalia’s political views didn’t always or even often dictate his judicial philosophy. The same is true for Justice Gorsuch, who stated as follows:

In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.[16]

Ultimately, if the process of decision-making results from creating invisible “penumbras,” to reach predetermined outcomes, then judging is no different from legislating. And that should trouble people of any political persuasion.

Indeed, for a “living constitutionalist” who lives, rents, or leases space in Griswold’s penumbras, believes in the fairy tale called “substantive due process,” and thinks that liberty encompasses the “right to define one’s own concept of existence ... and of the mystery of human life,” what constrains their decision-making?[17] Surely, it can’t be the text. Surely, it can’t be history and tradition. Certainly, it can’t be precedent, since stare decisis is akin to the toxic, on-again, off-again relationship that you pursue only when convenient. And most certainly, it cannot be “purpose,” as the purpose of a constitutional provision can be divined at any level of generality that allows you to do whatever you want, whenever you want, and for whatever reason you want.

Put simply, politics and policy preferences have no place in the Supreme Court. Living constitutionalism, however, puts those preferences at the forefront rather than in the rear-view mirror.

2.    Constitutional ambiguity, Clinton v. New York, and deference.

What should the Court do when it confronts constitutional ambiguity? How should originalists and living constitutionalists address this problem? Robert and Phillip provide no satisfactory answer. But it appears that they would not object to the Court intervening to decide questions where the Constitution’s text is ambiguous. I do object. In such instances, the Court should defer to the coordinate branches and the democratic process.

Many scholars will, of course, cite Marbury v. Madison, a case that did not do nearly as much as living constitutionalists might claim, to support the proposition that the Court has the right and duty to clarify constitutional ambiguity.[18] Marbury stands for the proposition that the judiciary has the power to say, “what the law is,” although it’s difficult to know what that statement exactly means. Regardless, does Marbury say that the Court has the power to say what the law should be, and even if it did, is there a legitimate justification for intervening in constitutional disputes when the text is ambiguous and reasonable people could arrive at different conclusions? No.

In such circumstances, the Court should do nothing. The Court’s decision in Clinton v. New York is among the best and rarely discussed examples of where the Court intervened when the Constitution was ambiguous, and when it should have deferred to the coordinate branches.[19] In Clinton, Congress passed the Line-Item Veto Act of 1996, which, among other things, gave the president the right to veto specific provisions in spending bills. The bill was passed by both houses of Congress and, after its constitutionality was challenged, the issue before the Court was whether the legislation violated the Presentment Clause.[20]  Now, the text of the Presentment Clause is sufficiently broad that reasonable persons could differ on whether it rendered the Act unconstitutional. Thus, why did the Court intervene and, in a 6-3 decision, invalidate legislation that would have likely reduced wasteful government spending? I have no idea.  The same was true in District of Columbia v. Heller, where the Court invalidated a law in the District of Columbia requiring, among other things, that certain guns be unloaded and disassembled in the home.[21] The Second Amendment did not clearly answer the question of whether the law was constitutional. As such, the Court – and its originalists – should have deferred to the District of Columbia’s lawmakers.

Put simply, if reasonable people can interpret a constitutional provision differently, why should nine unelected justices decide that question for an entire nation? Again, your guess is as good as mine.

Now, Phillip claims that this approach suggests that I support “a shockingly limited perception of the proper role of the judiciary,” that’s “entirely atextual” and that I am inventing “constitutional rules out of thin air.”  I do support a more limited judicial role, but I don’t find it shocking. Where does the text support Phillip’s approach? I respectfully suggest that, as the commentator below argues, living constitutionalism is entirely inconsistent with what the Founders expected:

America’s contemporary understanding of judicial power is inconsistent with the argument put forward by Hamilton and Madison in The Federalist. Although The Federalist affirms the power of judicial review—and hence the role of the judiciary as a check on the other branches—it does not present this as the most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as including a power to decide the great moral issues of the times and to adjust the Constitution to trends in public opinion. Finally, The Federalist lends no aid to the belief that the Supreme Court is the ultimate interpreter of constitutional meaning, unanswerable for its interpretations to any authority but itself.[22]

Indeed, the view that courts should be the final or primary arbiters of constitutional meaning, particularly concerning moral questions, reflects the desire to use the Court to advance a political agenda:

Although the courts have always held a key place in our constitutional system, this very lofty conception of their authority has largely arisen over the past several decades. The rise of this view can be traced in part to the influence of modern liberalism, which has used the courts as instruments of social and political change and has accordingly had to bolster the authority of the judiciary.[23]

This passage, among many others, doesn’t support the argument that I am inventing constitutional rules out of thin air. If I wanted to do that, I could have entered Griswold’s penumbras with nothing but my moral compass to guide the way. Ultimately, since the outcomes for which living constitutionalists advocate “are not clearly required by the text of the Constitution—or, in the case of affirmative action, may even be in tension with it—the Left has had to argue for a more free-wheeling kind of judicial review.”[24] A “free-wheeling kind of judicial review” is precisely what Griswold and Roe embrace, and reflect what is antithetical to a country committed to democracy. As Professor Holloway explains:

The Federalist’s account of the judicial power is more consistent with the dignity of the American people as the country’s sovereign because it ensures that, although their will can be checked by courts defending the clear and settled meaning of the Constitution, it cannot be subordinated to the will of judges who make the Constitution mean what they want it to mean in order to secure outcomes that they regard as just.[25]

Importantly, when the Court gets involved in deciding disputes where the Constitution is ambiguous (and living constitutionalists and originalists are equally to blame) it often harms democratic participation and efforts to improve democratic governance. For example, in Citizens United v. FEC and McCutcheon v. FEC, the Court invalidated limits on independent expenditures by groups, including corporations, and individuals that Congress passed to, among other things, reduce the undue influence of money in elections.[26] Why? As the Court held in Austin v. Michigan Chamber of Commerce, the First Amendment could arguably be interpreted to allow such limitations.[27] At the very least, alternative interpretations of the First Amendment were possible. As such, the Court should have deferred to the coordinate branches.

Likewise, in National Federation of Independent Investors v. Sebelius, did the Affordable Care Act’s individual mandate (and its other provisions) violate the Commerce Clause?[28] Again, who knows. The Court should have never intervened, and Chief Justice Roberts likely upheld the mandate, at least in part, because he didn’t want the Court to be perceived as invalidating a statute that did not clearly violate a constitutional provision. The problem is that, in Shelby County v. Holder, Roberts wrote a majority opinion that overturned portions of the Voting Rights Act that the Senate had re-authorized by a 99-0 vote.[29] Why?  

What does all of this have to do with originalism? In other words, between originalism and living constitutionalism, which theory is better when the Court is faced with constitutional ambiguity?

Originalism.

Although originalism is not perfect and cannot answer every constitutional question, and although there are certainly bad judges who use originalism to reach specific outcomes, it requires judges to at least try to identify what the Founders intended the words to mean, and to base their decisions on a reasonable interpretation of the text. That reduces the influence of subjective values on judicial decision-making. If you disagree, look no further than Griswold’s penumbras, the “sweet mystery of life” passage, and “substantive” due process – all of which can be attributed to living constitutionalism – and which allow the Court to create unenumerated rights that have nothing to do with the Constitution.  

The less power the courts have, the better. Originalism lends support to the basic proposition that citizens should stop looking to the Court to impose policy on an entire nation. Change occurs through the legislative process.

Erwin Chemerinsky, who is among the most influential legal scholars in the country (and a wonderful person), recently wrote an outstanding book titled: Originalism: Worse than Nothing. The Dangerous Fallacy of Originalism.[30] For the reasons stated above, living constitutionalism, not originalism, is worse than nothing because, at bottom, living constitutionalism is nothing.[31]

After all, there is a reason why, as Justice Kagan stated, “we are all originalists.”[32]

 

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

[2] See Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[3] Id.

[4] 381 U.S. 479 (1965).

[5] 410 U.S. 113 (1973)

[6] 543 U.S. 551 (2005).

[7] 521 U.S. 702 (1997).

[8] 554 U.S. 407 (2008).

[9] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[10] 597 U.S.           , 2022 WL 2276808.

[11] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[12] Id.

[13] Id. (Scalia, J., dissenting).

[14] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[15] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[16] See Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[17] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[18] 5 U.S. 137 (1803).

[19] 524 U.S. 417 (1998).

[20] Id.

[21] 554 U.S. 570 (2008).

[22] Carson Holloway, Against Judicial Supremacy: The Founders and the Limits on the Courts (January 25, 2019), available at: Against Judicial Supremacy: The Founders and the Limits on the Courts | The Heritage Foundation

[23] Id.

[24] Id.

[25] Id.

[26] 558 U.S. 310 (2010); 572 U.S. 185 (2014).

[27] 494 U.S. 652 (1990).

[28] 567 U.S. 519 (2012).

[29] 570 U.S. 529 (2013).

[30] Yale University Pres, 2022.

[31] See Adam Carrington, Erwin Chemerinsky’s Weak Critique of Originalism (September 18, 2022), available at: Erwin Chemerinsky’s Weak Critique of Originalism - The American Spectator | USA News and Politics.

[32] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com) (emphasis added).