American Paradox

When I started this particular blog, I thought I would be posting about crappy pop music I hear in my car, the idiosyncratic forms of stupidity one encounters at a Top Ten Law School, and why I like shooting shotguns but could never vote Republican. But no, in my wannabe-erudite and contentious fashion, I end up posting about political theory and constitutional law. So be it!

Originalism and Textualism: Problems
My last post outlined a fictitious conversation between an Originalist and an interlocutor trying to understand it. I wrote it in as charitable a fashion I could, giving the benefit of the doubt to the Originalist and not pushing on some things I could have. In part, this is because Originalism seems to me a strong theory of interpreting Fundamental Law in a constitutional democracy, and I think everyone ought to take it seriously even if some reject it ultimately.

But Originalism, in any form that a judge would actually employ, must contain Textualism, a much more narrow theory of interpretation. Textualism starts with the premise that where a legal clause is sufficiently clear in its meaning and application, you simply follow what it says and stop arguing about what the person who wrote it "really" meant by it. This is not to say that marks on a paper are magical or always have a fixed meaning - far from it! But marks on a piece of paper, in the cultural context within which they are made, usually indicate a linguistic meaning that to a vast number of people in that cultural context. That meaning is usually clear to most people.

Problems with this approach arise when the textual clause in issue is vague, or did not address the application of the clause that is being challenged. To make this more concrete, consider a common civil rights complaint. An arrested individual sues the local police officers who arrested her, contending that they did not provide her with "due process of law" under the Fifth and Fourteenth Amendments of the Constitution (put aside the procedural issues such a suit raises, for a moment). The arrested individual says that the warrant was based on a vague description of her person which was incorrect and led to her wrongful arrest whereas another individual should have been arrested in her stead. The police contend that the warrant and the description it was based upon were of such a degree a particularity such that they were acting reasonably in arresting her. The court would obviously look at a lot of facts for such a case, but in the end the relevant facts and how they affect the court's decision must be guided by a construction or interpretation of the words "due process of law." What do those words entail in this case?

We could go back and forth and apply different constructions of what "due process" entails, but the point is that Textualism in its most basic form has to go deeper for it to help us out in this example. This is where Originalism comes in. Originalism tells us that where the plain meaning of the text is uncertain, vague, or vague in a particular application, we should consult what it meant to an ordinary person when it was enacted as law. That's Original Meaning.

For the Due Process Clause we mentioned above in our example, we look to the historic meaning of the concept "due process of law." That term actually has a specific and historical English common law definition that we need not lay out here. Suffice to say that the Fifth Amendment, as written in 1791, meant that traditional English meaning and no other.

Step Back
Step back a moment: why does Originalism need Textualism, and when is all this going to become relevant to a criticism of Originalism? Originalism needs Textualism because without it no one would take it seriously. In fact, I think the basic premises of textualism are accepted by most constitutional theorists -- what they disagree upon is how to interpret vague or unclear language and the application of that language. Originalism answers that problem by insisting that clauses of the Constitution be given the historical and common understanding of their import, period. Things are not so cut-and-dry, but that's the basic premise.

Why is all this a problem? I'm not sure it is. But what is a problem is that conservative jurists call themselves "Originalists" even when they are not. It is a problem to even be 95% "originalist" and 5% "living constitution" or "Dworkin's moral values" for your theorizing. Why? Because then it becomes clear that you are picking and choosing your system of interpretation based on political/moral preferences, to reach certain moral results. If you are declaring yourself to be a staunch "originalist," the only reason that declaration has value in a judicial confirmation hearing is because it supposedly signals that you will follow some objective legal methodology in interpretation, with no care for the results of that method.

But most so-called "originalists" abandon some of their premises from time to time, or use well-worn tricks to get around results in cases that, although flowing from pure Originalism, actually end up with a socially liberal policy result. This is why I highlighted my example with the Eleventh Amendment. One liberal cause that conservatives typically oppose (though with muffled language) is the ability for minorities to sue civil rights violators in federal court for their malfeasance. One barrier to these lawsuits is the Eleventh Amendment, which bars suits against states and state offices. A long line of U.S. Supreme Court precedents (Edelman v. Jordan, Will v. Michigan Dept., etc.) has established that lawsuits againsts states and state offices for damages are simply barred in federal court. And good luck trying to sue the government of Virginia in a Virginia state court! Immunity at the state level is the rule, as well.

But how did this result? Look at the language of the Eleventh Amendment:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

Interesting, so X, a citizen of Virginia, cannot sue the government of New York even though New York state police officers used excessive force on X during an unlawful search and seizure. But why, according to the Eleventh Amendment, can Y, a citizen of Virginia, not sue the government of Virginia for damages resulting from a Virginia state patrol officer's faulty arrest of Y?

It turns out that judges who call themselves "originalists" almost uniformly believe that the Eleventh Amendment bars any suit against a state by any citizen, no matter if it is his own state, in federal courts. These conservative judges (and they are conservatives, almost uniformly), believe that what the Eleventh Amendment was "really" trying to do was bridge the concept of "sovereign immunity" for states into the Constitution. Note that nowhere in the text of the Amendment do we see the words "sovereign immunity" or any reference to such a concept. Even if these so-called "originalists" were correct that the intent of the drafters of the Eleventh Amendment was to import "sovereign immunity" into the Constitution for the states, who cares? Drafter's intent doesn't matter to Originalists anymore - they abandoned it. So they have to prove that the public, at the time of the Eleventh Amendment, would have read the above clause to mean that Y cannot sue Virginia.

Would the public at that time have believed that, upon reading those words? I doubt it. But the key insight in this situation is that we don't need to make that Originalist inquiry in the first place -- the text is sufficiently clear on the matter! If you read the text in isolation, you could solve the issue of Y v. Virginia in a flash -- Y gets to sue Virginia in federal court so long as Y can prove Virginia citizenship. Textualism compels the natural and obvious reading of the clause so long as there is nothing vague about it, and in the Eleventh Amendment's case, in its application to Y v. Virginia, there is nothing vague. Y should get to sue.

But Y doesn't, and that's the tragedy of those conservative jurists who put their naked political preferences above a commitment to Originalism proper, which recognizes the primacy of Textualism whenever the text is clear. I said before that Originalism has been reduced to a rhetoric device for Republican politicians, and I think I am correct. A true Originalist accepts even socially liberal conclusions as long as the correct method is used. But true Originalists do not populate the "short list" of Republican nominees for federal benches.