Week 8 - Alito's Originalism

Alito a “practical originality”

The "Working Judicial Originalist: When young originalists asked the author whether he was a true believer, he said yes and called himself a "practical" originalist. On reflection, he prefers the term "working judicial originalist," meaning a judge who pursues originalist goals within the limits of the court system.

The Highway Metaphor: To explain his view by process of elimination, the author pictures an originalist judge driving down a highway and passing seven exits. Six of the exits are wrong turns, and the seventh presents an important choice.

Origin of Originalism

The Pre-Originalist Era From the late 1930s to the mid-1950s, the dominant view was that federal courts should rarely overrule elected officials. Doing otherwise was seen as clashing with the country's commitment to democracy.

Why New Dealers Liked Judicial Deference This hands-off approach helped New Dealers reach their policy goals and fit with legal realism, which saw little difference between interpreting law and making policy. As a result, they wanted conservative courts out of hidden policymaking, with that job handed to experts.

The Shift to Non-Economic Rights In the 1950s and 1960s, the Supreme Court's focus moved from economic regulation to protecting non-economic rights. Justice Frankfurter and Judge Hand saw no reason to change the courts' role, but a majority led by Chief Justice Warren and Justice Brennan favored a more active judiciary.

Court Without a Theory The Court never explained why it treated economic and non-economic rights claims differently. Its leading justices were practical men who believed they were simply guiding the country toward a better future.

Public Backlash Because of this approach, support for the Court depended on whether people shared its vision of progress. By the late 1960s, public opinion had turned against some major decisions, especially those seen as getting in the way of law enforcement.

Originalism Was Not Yet Developed Critics wanted a theory that explained where the Court had gone wrong, and originalism would eventually supply it. As of 1983, however, only about six full-time law professors were doing serious originalist work.

Borrowed Rhetoric Without a theory of their own, critics borrowed language from Frankfurter's philosophy of deferring to elected officials. They accused the justices of being "activists," failing to show "judicial restraint," and deciding cases based on the results they wanted.

Why Originalists Used That Rhetoric Early originalists found this language appealing because they objected to many of the same decisions. A decision that ignores original meaning to reach a desired result can fairly be called "results-oriented" or lacking "restraint".

Born From Opposition to Results The author highlights three facts about how originalism began, starting with the fact that it grew out of opposition to particular court decisions. He warns young originalists that the theory did not come from detached philosophers who ignored current events.

Early Originalists Under Attack Second, the first originalists were under siege. Critics mocked the theory as indefensible and called its supporters either stupid or dishonest.

A Mismatch in Philosophy Third, originalists sometimes used the language of a very different theory, Frankfurter's philosophy of restraint. That theory leads to judicial minimalism, while originalism sometimes calls for bold action.

Seven Exits: Insecure Originalism and why results matter

Insecure Originalism: The first wrong turn is "insecure originalism," in which judges stay in a "defensive crouch" because they fear being called results-oriented. As a result, they refuse to talk about whether their decisions produce good outcomes, and the author calls that a mistake.

Good Results Matter: No neutral theory, originalism included, will produce a good outcome in every case. But unless originalism is seen as generally producing good results, it may survive only as a minor academic curiosity.

Scholars Defending Originalism's Results Professors McGinnis and Rappaport argue that originalism produces the best results. Their reason is that it reflects the will of the large majorities who ratified the Constitution, who were better placed than unelected judges to judge the public good.

No Thumb on the Scale Judges should not hold arguments that lead to appealing outcomes to a higher standard. Doing so assumes the Constitution leans toward bad outcomes, and it does not.
Other Defenses and the Common Good Alternative Professor Joel Alicea and others have offered similar defenses, but insecure originalists are afraid to say anything about whether originalist results are desirable. That gap has helped fuel interest in Professor Vermeule's "common good constitutionalism".

Welcoming Bad Results Insecure originalists may worry that they are secretly deciding cases based on their own policy preferences. So they may actually welcome results they dislike, because those results ease their anxiety

Check Your Work Today's originalists should drop this mindset and recheck their analysis when it seems to lead to a senseless result. The author points to Mr. Bumble in Oliver Twist, who called a law with an absurd result "a ass—a idiot".

The Constitution Is Not Absurd When a law clearly produces a foolish result, a judge must still follow it. But the Constitution is not foolish, so judges should not casually or happily accept results that defy common sense.

Seven Exits: "Show-It-to-Me-in-Black-and-White" Originalism and necessity of structure

"Show-It-to-Me-in-Black-and-White" Originalism The second wrong turn also comes from the anxieties of originalism's early days. The author calls it "show-it-to-me-in-black-and-white originalism," which means demanding explicit text for every principle.

Structure Matters Too Judges must always start with the Constitution's text and be very careful about going beyond it. Still, some important principles are not spelled out and instead come from the Constitution's overall structure.

The Anti-Commandeering Example No provision expressly bars Congress from ordering state officials to enforce federal law or forcing states to pass laws. Even so, Printz and Murphy recognized that rule as a clear inference from constitutional structure

Presidential Immunity The same reasoning applies to the presidential immunity recognized in Trump v. United States, which covers all presidents. Here too, the lack of explicit text does not settle the question.

Seven Exits: Icarian Originalism and need to limit principles

The Icarus Myth The third wrong turn is "Icarian originalism," named for the boy in Greek myth whose father made him wax wings. Icarus flew too close to the sun, the wax melted, and he fell to his death in the sea.

Flying Too High Icarian originalism loses sight of what constitutional text meant to ordinary people when it was adopted. Instead, it reads provisions as broad abstract principles that justify results the framers would have found astonishing

The Obergefell Brief and a Caveat A prime example is a scholarly brief filed in Obergefell v. Hodges, the 2015 same-sex marriage case. The author stresses that he is not calling for Obergefell to be overruled and that Dobbs was not meant to disturb it.

The Meaning of "Liberty" The Due Process Clause protects "liberty," a word that has meant many different things over time. For an originalist, the question was whether people in 1868 understood "liberty" to include legal recognition of same-sex marriage.

An Easy Case for Originalists Nobody in 1868 understood the Fourteenth Amendment to require states to recognize same-sex marriage. No society had recognized it until the Netherlands did in 2000, so in the author's view the case should have been easy.

The Brief's Equality Argument The brief argued that the Equal Protection Clause guarantees broad equality for everyone, gay or straight. On that view, states could not deny gay people basic civic rights, including the right to marry.

The Microwave Analogy The brief said it did not matter what the Amendment's drafters or ratifiers would have thought about same-sex marriage. It relied on a Scalia statement that an old theft law would still cover microwave ovens even though their inventors' era was unimaginable to the lawmakers.

Scalia's Dissent The brief did not win Justice Scalia's vote, and he wrote a strong dissent. He reasoned that every state limited marriage to a man and a woman in 1868 and that this settled the case.

A Limited Delegation of Authority Broadly worded provisions can give judges some authority to apply them to new situations, but deciding how much takes judgment. The microwave example is easy because lawmakers would expect new kinds of property to be protected, but real cases are often harder.

The Kyllo Facts In Kyllo v. United States, a police officer aimed a thermal imaging device at a home to detect heat from lamps used to grow marijuana. The question was whether this counted as a Fourth Amendment search.

A Reasonable Judgment Call Justice Scalia held that it was a search because it intruded into the privacy of the home. It was reasonable to assume the Amendment's framers let future courts apply it to new ways of invading what it protects.

The Danger of Icarian Originalism Applying old rules to new situations always requires judgment about how far the rule's authority reaches. Icarian originalism ignores those limits, and if adopted it would make originalism indistinguishable from rival theories.

Seven Exits: Archaeological Originalism and necessity of exercise of judgment

Archaeological Originalism The fourth wrong turn, "archaeological originalism," is the opposite of the Icarian approach. It digs deep into the legal past looking for a single artifact, like a Rosetta Stone, that will settle a hard question.

Public Meaning Is Not Hidden Finding original public meaning is nothing like decoding hieroglyphics, because modern readers can understand the Constitution easily. If a provision had a widely understood meaning when adopted, that meaning is unlikely to have become so lost that only a buried artifact can reveal it.

The Torres Facts Archaeological originalism can appeal to lawyers who want to get around plain meaning or precedent, as in Torres v. Madrid. Police shot a woman who drove off and kept going for 75 miles, which raised the question of whether she had been "seized".

The Countess of Rutland's Case Ordinary meaning and precedent suggested she was not seized, since the police never stopped or slowed her. Her lawyers relied on a 1605 English case holding that an officer could arrest a debtor simply by touching her with a mace.

Not Real Originalism The lawyers argued that bullets were like the mace, and the argument won. The author says this was not true originalism, because no ordinary person in 1791 would have read "seizure" to include an old, extreme debt-arrest rule.

A Scalia Example The author offers one more example, though he hesitates because it means saying Justice Scalia misapplied originalism. He reasons that Scalia never held back his own views, so he will not either.

Why Jones Matters United States v. Jones (2012) shows why archaeological originalism appeals to judges. It lets them avoid hard judgment calls about applying the Constitution to situations no one could have imagined. The Jones Facts Police secretly attached a GPS tracker to Jones's car and monitored his movements for 28 days, which led them to a drug stash house. The question was whether this was an illegal search, and it was not an easy one. The Case for No Search GPS tracking can be seen as the modern version of tailing a suspect, which was not a "search" under precedent. People in public know they can be seen, so police may follow them and use what they observe. The Case Against Physically following someone takes a lot of officer time and becomes hard to hide over long periods. GPS trackers, by contrast, are cheap, hard to spot, and easy to monitor from a computer. No Historical Match There were no GPS devices or cars in 1791, and no cases about a tiny constable riding under a carriage for 28 days. So the Court dug up a different historical artifact: the old tort of trespass to chattels. Trespass to Chattels Explained Trespass to chattels happens when someone intentionally interferes with another person's movable property. The Court reasoned that attaching the GPS device was such a trespass and therefore fell under the Fourth Amendment. A Questionable Reading The Court read the tort so broadly that placing any unwanted object on property, even without damage, would count. The Court cited no founding-era cases like that, and modern law generally requires proof of damage. The Pizza Flyer Problem If the Court's reading were right, people could sue whenever someone tucked a flyer under their windshield wiper. A flyer causes no damage, and neither does a GPS device under a car. What Jones Needed Jones did not call for searching history for an old case with a clear answer. It called for an exercise of judgment like the one in Kyllo.

Seven Exits: Partial Originalism

Partial Originalism The fifth wrong turn is "partial originalism," which mixes an originalist rule with a clearly non-originalist one. The resulting decision is then defended as if the Framers required it.

The Collins Facts In Collins v. Virginia, an officer walked onto a driveway and lifted a tarp to check a motorcycle he believed was stolen. It was stolen, and the officer arrested Collins, who sometimes stayed overnight with the homeowner. The Warrant Question Collins argued that the search was illegal because the officer had no warrant. If the motorcycle had been on the street, both original meaning and precedent would have allowed the search without one. The First Congress and Vehicle Searches The First Congress, which drafted the Bill of Rights, passed a law allowing warrantless searches of ships suspected of carrying contraband. Courts later applied that rule to cars, so there was strong originalist support for a street search without a warrant. The Curtilage Ruling Because the motorcycle sat on private property near the house, the Court held that stepping onto it was a common-law trespass. As a result, the evidence had to be thrown out. Only Originalist on the Surface The decision looked originalist on the surface. In the author's view, though, it was not the product of real originalism. The Guest Standing Problem The first non-originalist rule was that Collins could complain about a trespass on property he had no ownership interest in. An earlier case allowed overnight guests to do this, but at common law a guest could not sue for trespass on a host's property. A 1791 Thought Experiment The author imagines an 18th-century Collins whose horse, tied in his girlfriend's yard, is briefly inspected by a constable. Even the homeowner would have struggled to find a lawyer or recover meaningful damages for such a minor trespass. Collins Sues the Constable The author imagines Collins's lawyer seeking damages for a few-second, harmless trespass on someone else's land. The author suggests the outcome would obviously be a loss. The Exclusionary Rule The ruling also depended on the exclusionary rule, which did not exist when the Fourth Amendment was adopted. So Collins had an originalist coat of paint but was not real originalism.

Seven Exits: Philosophical Originalism

Philosophical Originalism The sixth wrong turn is "philosophical originalism". This is the idea that the Constitution's original meaning reflects the thinking of one particular philosopher.

Locke and Fulton In Fulton, the author addressed scholarship that leaned heavily on John Locke to explain the Free Exercise Clause. He agreed Locke's ideas were "in the air" but rejected the idea that the clause carries a hidden footnote to Locke.

The Colonial Tavern To think about public meaning, the author pictures a colonial-era tavern in central New Jersey, where he grew up. The inn sat between Philadelphia and New York and served stagecoach travelers. Reading the Bill of Rights He imagines travelers and locals there in October 1789, just after Congress sent the Bill of Rights to the states. They gather by the fire to read newspapers and see that the First Amendment protects the free exercise of religion.

What Ordinary People Knew These readers would likely recall events like the exemption of Quakers and other pacifists from military service. It is very unlikely they had read Locke or assumed Congress had written his ideas into the Amendment.

State Legislators Were Not Scholars It is also unlikely that the state legislators who ratified the Amendment believed it embodied Locke's thought. Most were merchants, farmers, or local lawyers rather than scholars.

Public Meaning, Not Elite Meaning Originalism looks for the meaning the public understood. It does not look for what the most well-read philosophers of the day might have seen in the text.

Seven Exits: Academic Originalism

Academic Originalism The seventh exit, "academic originalism," is the right route for scholars, and a judge can take it in good conscience. But it is not the preferred course for the author and many other originalist judges.

The McDonald Case McDonald v. Chicago asked whether the Second Amendment right recognized in Heller applies to the states. By then, nearly all of the Bill of Rights had been applied to the states through the Due Process Clause. The Text Points to Procedure Read plainly, "due process" refers to procedure. That suggests the clause protects procedural rights rather than substantive ones. Privileges or Immunities The Privileges or Immunities Clause seems a better home for substantive rights, but the 1873 Slaughter-House Cases reduced it to minor importance. Like rain finding a way downhill, the Court then used the Due Process Clause to reach the same goal. The Straightforward Path A Chicago resident wanted to exercise the gun right recognized in Heller. The simplest route was to argue that the right was incorporated through the Due Process Clause, like other Bill of Rights protections. The Scholars' Brief Prominent scholars urged the Court to drop due process incorporation and correct Slaughter-House instead. McDonald's lawyer adopted that argument, but a comment from Justice Scalia quickly sank it. "Darling of the Professoriate" Scalia, a former law professor, might have been expected to like the scholarly argument. Instead he called it "the darling of the professoriate," noted it was contrary to a century of case law, and told the lawyer to rely on precedent. A Can of Worms Reviving the Privileges or Immunities Clause would have opened a long-debated question, leaving many rights up for grabs. Groups across the political spectrum, from libertarians to socialists, supported the argument, each hoping to win its favored rights.

Judges Face Different Constraints Had he never become a judge, Scalia might well have backed the professors' argument. As a judge, however, he worked under different constraints.

Precedent and Majority Opinions Judges must usually follow precedent because overturning it can be disruptive. They also work on multimember courts, where opinions that speak for a majority are especially valuable.

Compromise in Opinion Writing A justice writing for the Court must consider colleagues' views and usually compromise. The author recalls carefully crafted drafts being heavily cut and revised to keep a majority, which scholars rarely experience.

Scholars Work Alone Most scholarly works have a single author, and co-authors can simply part ways if they disagree. By contrast, the author of a court opinion must always accommodate others to some degree.

Applying Precedents You Opposed A justice asked to apply a decision he dissented from can refuse to budge or accept it for argument's sake. The second approach keeps the justice in the conversation and lets him steer the law back on course.

Both Choices Are Honorable Both approaches are honorable. Holdouts write for the future, while those who stay in the conversation may achieve benefits now.

Judging Is Practical Judging is practical work with real consequences. Its conditions can make scholarly purity hard to achieve.

Defining True Originalism

True Originalism Produces Good Results The author described the wrong turns to keep originalist judging on course, since originalism is the correct way to interpret the Constitution. Because the Constitution is good, originalism generally produces good results, and originalists should not be afraid to say so.

Judgment, Humility, Boldness, Confidence Originalism is not a mechanical process: it disciplines decision-making but still requires judgment and humility when the answer is hard. It also requires the boldness to follow original meaning and the confidence to go without praise from the media or academia.

Connecting Natural Law/Catholicism with Originalism

Conservatives Souring on Originalism Originalism does not always please conservatives, but its link to political conservatism is undeniable. Some Catholic conservatives have recently turned away from it, preferring theories that openly promote a particular vision of the common good.

Not Purely Academic Because originalist decisions have controversial real-world effects, this inquiry cannot stay purely academic. Part of what drives it is the argument that originalism sometimes clashes with Catholic social thought and natural law.

Scalia Picks a Fight With Aquinas Speaking to Dominican scholars, Justice Scalia challenged Aquinas's view that unjust laws should be read according to equity rather than their letter. Scalia compared that view to Earl Warren's and insisted judges should follow the text.

A Real Disagreement? The author questions whether Scalia and Aquinas truly disagreed, since Scalia was writing about American federal judges. Those judges are appointed for life in a system that separates lawmaking from interpreting law, and they can strike down laws.

Medieval Judges Were Different Aquinas wrote in 13th-century France, where law and custom blurred and the saintly king's own court was the highest tribunal. Because judges' roles differ across eras, his views should not be assumed to apply to today's federal judges.

Originalism's Secular Roots In a pluralistic society, no successful theory of interpretation can rest on one faith, and originalism's foundations were entirely secular. It arose to limit judges' personal policy preferences and leave policy to elected officials.

Bork and Scalia Rejected Natural Law Leading originalists like Bork and Scalia argued that natural law should play no role in constitutional interpretation. Scalia asked whether we want fallible judges overriding democratic laws based on natural law and answered, "Lord, no".

Natural Law Is Poorly Understood Natural law gets little attention in law schools, and most American lawyers could barely explain it. Because American legal thinking is mostly pragmatic, utilitarian, or liberal, classical natural law arguments can sound strange.

A Warning About Prudence If natural law is defined loosely, it could justify decisions that common good constitutionalists would dislike. Prudence therefore requires them to consider how their theory would work in practice.

Risk of Anti-Catholic Prejudice Modern natural law scholars say natural law rests on reason, not religion, and includes Jews, Protestants, and Muslims. But because it is seen as Catholic, Catholic judges who invoke it risk being accused of imposing their faith.

Natural Law as a Form of Originalism Some argue that natural law reasoning was common at the Founding and later lost, an argument that deserves serious study. But that is itself an originalist argument, so its supporters must prove their history and defend originalism as the best theory.

Paradox of Originalism

First Part of the Paradox Originalism sparked a boom in constitutional theory, but most of that scholarship criticized it. That happened because originalism challenged the established approach, prompting its defenders to propose alternatives.

Second Part of the Paradox The second part of the paradox is that originalism was "under-theorized" when it began. The phrase may sound like jargon, but the author says it fits.

How Originalism Developed

From Intent to Public Meaning In the mid-1980s, originalists shifted from the Framers' intent to the text's original public meaning. Intent was hard to identify across many mostly unknown ratifiers, and it clashed with textualism.

Obergefell as Exhibit A To Justice Scalia and many originalists, Obergefell was the opposite of originalism because no one in 1868 imagined same-sex marriage. Yet Justice Kagan joined the majority, and both Tribe and originalist scholar Steven Calabresi filed briefs supporting the right.

Subcategories of Originalism Calabresi's broad-principle approach is very different from the originalism of Scalia and Bork. So "originalism" contains subcategories, and each may relate differently to Catholic thought.

The Limits of History Originalism promised clear limits to stop judges from imposing their own policy views, but high-level readings leave much room for judgment. Scalia-Bork originalists prefer concrete historical evidence, which is hard to find when new technology is involved.

The Video Game Example Brown v. Entertainment Merchants Association asked whether states could restrict sales of violent video games to minors, though no such games existed in 1791. The closest historical parallel, violent books, may be very different from games where players act out graphic violence.

Judgment and the Common Good Without a good historical match, a court may have to rely on its own judgment, which might amount to deciding what the common good requires. How far originalist judges may use such higher-order judgment bears directly on the link to Catholic thought.

Bork and Beethoven Judge Posner noticed that Commentary magazine praised Bork's originalism but criticized a recording of Beethoven played as it would have sounded in his day. Posner argued that rejecting "authentic" music performance means rejecting originalism too, and the author asks whether he was right.

Figuring out the judge’s role

Bach on the Piano The author has long wondered what Bach would think of modern performances of his works. Bach wrote for the harpsichord, yet there are magnificent performances of his music on the piano.

Bach as a Musical Originalist An ensemble director told the author that Bach once tried an early piano and did not like it. In that sense, Bach was a musical originalist.

A Listening Test The author invites readers to compare Bach on harpsichord and piano and see which they prefer. He asks whether that musical preference says anything about their constitutional views.

What Is the Judge Hired to Do? The answer depends on whether a performer's role is like a judge's role, which may turn on what each was hired to do. This raises the question of what the "terms" of a federal judge's job are when deciding constitutional cases.

Narrowing the Focus The real question is how federal judges, especially Supreme Court justices, should interpret the U.S. Constitution. It is unclear whether Catholic thought speaks directly to that or must be extended by inference.