By Colin Snider ’19 Guest Contributor
In recent years, no theory of judicial interpretation has been as widely praised, criticized, and debated as originalism. While originalism itself is a simple concept—that judges should interpret the Constitution according to the understanding of those who ratified it—originalism raises interesting questions about whether it accomplishes its objectives and how it should be applied. What should a judge do when the meaning of the Constitution is unclear or nonexistent? How should judges react to subsequent developments in caselaw and practice? Does originalism actually constrain judges or is it a tool for judicial activism?
Last Thursday, the Federalist Society at UVA played host to constitutional law scholars, practitioners, and judges who grappled with these and other questions. Building off their fall “Originalism 101” seminar, hosted by Professors Caleb Nelson and Saikrishna Prakash, the Federalist Society sought to confront some of the critiques of originalism and explore disagreements among originalists themselves. As expressed by the symposium’s keynote speaker, Judge Thomas Griffith ’85 of the United States Court of Appeals for the D.C. Circuit, the symposium served as an opportunity for originalists to “recalibrate” and “reconsider” originalism’s fundamentals.
Original Understanding and Substantive Rights
The day kicked off with Judge Diane Sykes of the Seventh Circuit moderating a panel on originalism and the Due Process Clause. Professors John Harrison of UVA Law and Randy Barnett of Georgetown Law began by reiterating that due process, as originally understood, was more of a procedural guarantee than a way for courts to substantively review the content of laws passed by Congress. It could be thought of as a separation of powers requirement that Congress not exercise judicial power and that courts bind themselves to the rule of law. Substantive review of laws passed by legislatures, argued Harrison and Barnett, comes from other sources like the Bill of Rights, the Commerce Clause, and limits on police power.
However, fealty to the original meaning of the Due Process Clause leaves originalists in somewhat of a bind. What do they do with the fact that substantive protections in the Constitution, such as the Commerce Clause and Privileges and Immunities Clause, have lost their strength? Scott Ballenger, Partner at Latham and Watkins and Professor at UVA, suggested that despite its more limited original meaning, substantive due process is the “tool at hand” courts have to protect fundamental rights left unprotected by changes in Supreme Court doctrine. As an example, Ballenger cited his work in Abigail Alliance, in which he argued that the individual right to self-defense included the right to purchase experimental drugs to fight cancer. Even though the Founders would have seen the right to self-defense as one of the first fundamental rights of nature, the D.C. Circuit declined to use substantive due process in the case. On a similar note, Professor Julia Mahony suggested substantive due process could be used to tackle unique twenty-first century problems such as civil asset forfeiture, crony capitalism, and administrative state overreach.
When the Text Runs Out
What should originalists do when the text of the Constitution is unclear? After a wonderful lunch debate on judicial restraint between Clark Neily of the Cato Institute and Mark Pulliam of Law & Liberty, the symposium took up the issue of what to do when the text of the Constitution is ambiguous or does not answer the question before a court. Panelists Joel Alicea from Cooper & Kirt, Professor Stephen Sachs from Duke Law, and Professor Lawrence Solum from Georgetown Law discussed this issue.
To begin, each panelist discussed what motivates originalism. Professor Sachs observed that originalists are faithful to the original meaning of the Constitution not necessarily because the Founders got it right, but because originalists believe that original meaning is the law. Constitutional changes should take place by amendment, not by judges. Alicea commented that a judge’s approach to constitutional interpretation depends on their personal political theory and how they see the role of judges. Finally, Sollum noted that it makes sense for originalists to examine the philosophy of language and history, just as some judges defer to economics or science in their opinions. Originalism is, after all, like any scholarly discipline.
When asked by Judge John K. Bush of the Sixth Circuit, the moderator, about what advice they would give judges about what to do when the text is indeterminate, Professor Sachs suggested judges look to background principles of law, such as the legal maxim that “no man can profit from his own wrong,” which the court relied on in Riggs v. Palmer. Alicea suggested that canons of construction, history, and precedent [if consistent with original public meaning] can take judges quite far in discovering the mean of the Constitution. Finally, Sollum argued that if ambiguity persists, judges might look to the objective purpose of a provision of the Constitution or, if all else fails, defer to the political branches.
Overall, the panelists at the symposium raised excellent arguments, both for and against originalism. They grappled with the difficulties originalists face when they confront longstanding changes in original meaning, such as the Due Process Clause. Panelists made strong arguments for why originalism should or should not constrain judges. They also addressed what originalists should do when their methodology leads them to an inconclusive result. The day concluded with a re-argument of The Slaughterhouse Cases by Dominic Draye, Solicitor General of Arizona and Elbert Lin, Former Solicitor General of Wester Virginia. Judges Griffith, Sykes, and Bush did their best to re-create the atmosphere of the original argument. It was a fantastic to see the distinguished advocates and judges recreate one of the Supreme Court’s most infamous cases. It was a fitting end to the symposium.