Friday, October 23, 2015

Why it Probably Doesn't Matter if Originalism can Produce Brown - a Comment on Dorf on Originalism

Today on his blog, Michael Dorf argues that, when faced with the objection that originalism can't produce Brown v. Board of Education, it's not enough for originalists to argue that originalism contemplates stare decisis and therefore counsels in favor of adhering to Brown, whatever its originalist merits as an original matter were.  Instead, if Brown is sacrosanct, "that means that any interpretive approach that is acceptable must actually produce Brown and/or the other precedents. Preserving sacrosanct precedents is not enough." 

My onetime professor Lawrence Solum spots several ambiguities in this formulation, and points out that non-originalist theories - common-law constitutionalism, pluralism - don't necessarily produce Brown, but only are amenable to Brown.  I will assume for purposes of this post that Dorf means that, if the Court accurately applied originalism in 1954 to the facts in Brown, it must be the case that there's a significant possibility that the Court would have reached the result it actually reached - as I agree that Dorf probably can't be demanding a theory that would invariably generate the result in Brown, and because it appears to me that his argument is that originalism, done right, never produces the result in Brown as an original matter.

Assuming that's what Dorf means (if I'm wrong, it's nevertheless something worth responding to, as it's a reasonable-enough claim that others have made), I see two problems.  First, just why is it that originalism must be capable of generating Brown as an original matter, rather than as a matter of stare decisis were the Court to adopt originalism in 2015?  Second, even if we do grade originalism on how it would perform in 1954, why is it even that important that originalism be capable of generating sacrosanct precedents at all?

On the first question, I take it that when originalists call for the courts to adopt originalism, they propose a reform in interpretive methodologies going forward (unless they believe the courts have already adopted originalism) - not an alteration of past interpretive methodology by means of time machine.  So since Brown is the law, and since most originalists believe in stare decisis (in part because stare decisis existed in 1787 and was part of the package of original understandings of how Article III courts would behave), originalists who call for originalism going forward call for adherence to Brown, a decision that doesn't demand to be overruled under any form of stare decisis.  Why does it matter, then, that, if originalism had existed in 1954 and originalists had controlled the Court in 1954, we couldn't (maybe) have gotten Brown?  Dorf says it's because past performance is a predictor of the quality of future results:

Consider an analogy. Suppose I'm trying to decide which of two builders to hire to build a house: Stubbs or O'Reilly. Each of them shows me several houses he has previously built. The Stubbs houses are high quality but the O'Reilly houses are falling down. O'Reilly nonetheless wants me to hire him. I'm skeptical because I see what lousy work he has done in the past. He tells me not to worry because he himself lives in a high-quality house that Stubbs built. O'Reilly is proud of the fact that he hasn't destroyed the excellent house Stubbs built. But I'd be a fool to hire O'Reilly because the capacity not to destroy an excellent house is not a predictor of the ability to build an excellent house.
Originalism supplemented by stare decisis is like O'Reilly.
This analogy doesn't really work.  Originalism isn't just capable of not destroying excellent houses; it can build some excellent houses of its own.  No non-originalist would claim that the entire original meaning of the Constitution in every particular is unworthy of adherence.  Even liberal anti-originalist pundits like Ian Millhiser are discovering that they like what original meaning has to say about birthright citizenship; any number of thoughtful liberal non-originalists like what they believe original meaning has to say about affirmative action (see pages 81-85).  And people of all ideologies find a lot to like about the Bill of Rights or divided government, even as originally understood.  

So what we need is to ask whether a past inability to generate one excellent decision is a predictor of an inability to generate certain other (or enough) excellent decisions going forward, though we know originalism is sometimes capable of generating excellent decisions.  What we might find if we asked that question is that, while originalism was not equal to the challenges posed by Jim Crow, or possibly the Great Depression, originalism can produce excellent and even sacrosanct decisions that dispose of the outstanding constitutional questions that arise today.  This, of course, is highly contingent on the mix of questions that arise, what originalism has to say about them, and what one's idea of a sacrosanct decision is in the first place.  I would expect, for example, that if someone like Trump were to get elected President, a non-originalist Court would give his arguments against birthright citizenship a much more sympathetic hearing than an originalist Court would, given the strength of the originalist arguments for birthright citizenship and the tendency of this non-originalist Court to take most any constitutional claim seriously so long as it's backed by one major political party and a large share of the public.  Whether a decision upholding birthright citizenship would be sacrosanct would be in the eye of the commentator, but I imagine the bulk of the people who decide whether decisions are canonical or not would quickly canonize such a decision.

On the second question, suppose that for some reason we did care what originalism would have done in 1954, not just what it would do in 2015.  Is it really a devastating objection to originalism that originalism would have failed to produce Brown?  I don't see why.  The argument that it is seems to go something like this: (1) Segregation was a horrible evil. (2)  Brown (in theory) ended segregation. (3) Therefore, Brown is a great and sacrosanct decision. (4) We would want any interpretive theory to be able to produce Brown.  

My trouble with this argument is steps three and four.  It's obviously the case that Brown was an immensely welfare-enhancing and virtuous decision, because it helped end a horrible evil.  But is any immensely welfare-enhancing and virtuous decision sacrosanct, and must a good interpretive methodology be capable of generating certain decisions that generate immensely welfare-enhancing social change?  What's wrong with acknowledging that the Constitution just doesn't say certain things we'd like it to say?  

For example, slavery was an even greater evil than segregation.  The Constitution, however, permitted slavery until it was amended to forbid it.  In a counterfactual world where the Thirteenth Amendment was never ratified, we could imagine a non-originalist decision that read the Constitution to ban slavery.  Would we say that originalism was defective because it couldn't produce such a decision?  I think not.  It doesn't follow from the immense virtue of some social/legal change that the Constitution must be capable, in its current unamended state, of generating that change by means of judicial review.  It only follows that it is morally imperative that the change occur by some means, which certainly need not be judicial.  Further, I would think that this moral imperative runs most directly to political branches that can change the law, rather than to courts interpreting the old law they're stuck with, which may well be flawed from a moral perspective.  That is, there was obviously a moral imperative in 1954 to pass laws ending segregation, or to amend the Constitution to do so, which comes to the same thing.  But was there really a moral imperative, failing those developments, to read a constitutional provision enacted in 1866 to ban segregation?  Perhaps if segregation was so popular that Brown was the only way to end it, but I doubt that's the case; rather, to crudely simplify things, Brown only was enforced once segregation became unpopular enough for political actors to enforce Brown.

Take another example.  It may be quite unjust that poor children are penalized for the poverty of their parents and neighbors and go to public schools that receive less funding than those attended by children fortunate enough to be wealthy.  It would be nice if the Constitution had something to say about this.  But is it a black mark against originalism, or the non-originalist methodologies actually used by the Court that rejected poor children's constitutional claims in 1973, that they respectively cannot and failed to generate a decision that rectifies that injustice?  No more so, I suppose, than it's a black mark against our state constitutions that they produce state legislatures which invariably vote to maintain the same unjust system of property taxation and school funding - a fact which leads very few people to say that our state constitutions embody a morally infirm system of government which must be replaced by some other system of government.

For whatever it's worth, I am not an originalist and thus happily embrace Brown as an original matter; I have no idea what I would say about Brown were I an originalist.  And I do think it's a selling point of certain non-originalist methodologies that they're more amenable to Brown and other canonical decisions than originalism is.  But unless one believes that the Constitution just is an unerring fount of moral goodness, which seems doubtful, or that even if it isn't, an interpretive methodology must make it so, which also seems doubtful, I don't see why an interpretive methodology must be capable of generating every profoundly morally good decision in the constitutional canon.


  1. What exactly is different today that originalism would work but not yesteryear? I have read a reasonable amount of discussion and defense of the technique but the idea that it was only workable post-1955 was not something I recall. Dorf's argument holds then -- if it was bad building material in the past, why is it not today?

    The second reply seems to be that one bad apple doesn't spoil the batch. As I noted there, fine, but it's a notable bad one all the same.

    1. What might be different is just that the questions that arise today, that aren't settled by wobbly precedent, have what you or I would deem to be acceptable originalist answers. It really just depends on the questions that arise and the answers that you get. For example, Sunsteinian minimalism seems like a dreadful way to interpret the Constitution in the first half of the 20th century, because of all the bad things it would potentially allow, but a pretty good way to interpret the Constitution today, because very little that horrible happens anymore, legislatively, and originalist calls for "judicial engagement" are transparently efforts to win political battles conservatives are losing by other means. Similarly, you might find you like what originalism has to say about constitutional questions that arise today, like, say, birthright citizenship, or GPS surveillance, or campaign finance, or whether representatives must be apportioned in proportion to voter population instead of total population, or what have you. It might be that precedent has already taken care of most everything you want the Constitution to take care of. Personally, while I'm not an originalist, I'm pretty happy with most doctrine the way it is, and there's a whole lot of it on nearly every subject, so I'm not sure what important Brown-like non-originalist move we'd be missing out on if we switched to originalism going forward.

    2. "very little that horrible happens anymore"

      The modern push for originalism (though the idea didn't just start then) arose in the Reagan Administration. If affirmative action, denial of gun rights, a range of free speech issues and maybe even allowing abortion (in the eyes of some) is not "horrible," well okay. Many supporters of originalism might not think so.

      And, it is quite debatable if minimalism was a "dreadful" approach early in the 20th Century, especially if you didn't like the courts striking down certain types of laws as they did. His minimalism still allows for striking down laws after all. Plus, it might have made sense to use minimalism at first as the political branches got used to accepting various things like racial equality. Once the basics were in, in time, it might have changed.

      If originalism is merely a fig leaf to advance your cause, fine, but Dorf was assuming the argument was that it was a principled approach. So, the theories don't come off that well & ultimately Brown doesn't come off as some unique outlier of another era but instead a case most everyone likes and is a reasonable test for an interpretative vision with the caveat that of course you still have to look beyond even one 'mistake.'

    3. I think you misunderstood what I said. I'm not talking about what originalists would find horrible, but what non-originalists would. As I understand it, the concern of people like Dorf is that originalism fails to invalidate illiberal legislation which we (or some of us) now realize is unacceptable, but which the people who wrote the Constitution or certain amendments to it a century or two ago would have seen as clearly constitutional. Now, I think that illiberal legislation of that sort is pretty rare today. I don't see some analogue to segregation out there or see one arising in the future, and if it did we already have a lot of locked-in doctrine to cover it. The fear, I guess, is that at some time in the future we discover something or another is unacceptable, which we don't already know and doctrine doesn't already say is unacceptable, and the Constitution, originally understood, won't be able to do anything about it. What would that be, though?

      I don't know where "fig leaf to advance your cause" came from. Originalism isn't my approach, but it's a principled approach for some people, and if originalists, for principled reasons, want to do originalism going forward, it's not very relevant to whether that's a good idea that if originalism had been adopted 60 years ago we might not have liked the results.

  2. I think Originalism would have produced Brown before Brown did. The Civil Rights Cases, 109 U.S. 3 (1883), should have, it seems to me, come out the other way, from an Originalist perspective, and represent more a post-reconstruction hang-over, reflecting an America now souring on the effort to reform the South, than a true attempt to discern the Original Public meaning of the 14th Amendment. With that counter-factual, Plessy never would have ocurred (because the Civil Rights Act of 1875, had it been upheld, would have guaranteed "full and equal enjoyment of [...] public conveyances," which went a good deal farther than the charter language "no person shall be excluded...on account of color," which was held in Railroad Company v. Brown, 84 U.S. (17 Wall.) 445 (1873) to prohibit separate but equal accommodations. The implication the Court correctly gauged in Railroad Co. was that the reconstruction amendments, by then only the 13th had been ratified, represented a concerted attempt to remove every legal and social disability of the freed slaves. The ratifiers, dominated by radical Republicans, since most of the South was excluded, would have wanted it no other way, nor did they understand the Amendments in any other way contemporaneous to their passage.

    However, I agree, the argument is interesting, but not very important.

    1. Thanks for this interesting point. I had never heard of Railroad Co. Just to be clear, though, what I think you're saying is that originalism would have upheld desegregationist legislation, not that it would have produced a reading of the Fourteenth Amendment (like Brown) mandating desegregation. And of course, the Civil Rights Act of 1875 probably wouldn't have been effectively enforced in the South for a very long time. I do wonder, as a counterfactual matter, what the civil rights movement of the 50s and 60s ends up looking like if the fight is over enforcing old civil rights laws instead of enacting new ones. Other than that, I'm abjectly unqualified to say whether the Civil Rights Cases were rightly or wrongly decided as a matter of original public meaning (or intentions or expectations). My guess is that you may well be right about the Thirteenth Amendment, at least - which, if so, says something, I think, about the difficulty of getting the Court to genuinely commit to originalism and remove itself from contemporary politics.

    2. There is the argument that the equal protection clause was an adoption of previous Civil Rights Acts. (!/amendments/14/essays/171/equal-protection). This is a summary of the debate and may not take the position I advocate. What it does suggest is that a reasonable originalist interpretation of the 14th would contemplate that the primary authors adopted previous legislation as the template for the amendment. It is understandable then, that some originalist would legitimately agree that Plessy (and subsequently Brown) would likely have struck down public segregation under equal protection grounds. This is a view I find consistent with equal protection grounds, there are many who clearly feel otherwise. I largely agree with your broader point that if the constitution does not speak to it, that in of itself should not be an indictment of originalism or vice versa.

      As to the initial comment above, I believe he was referencing the Civil Rights Act of 1866 which was ratified after the 13th (1865) but before the 14th (1868) amendments (and as I suggested, informed the 14th amendment). The Civil Rights Act of 1875 was struck down in part (1883), and similar to Plessy (1896), Harlan was the lone dissent. However his comment still stands as valid, that orginalism could have produced this outcome before Plessy was decided.

    3. To clarify what I meant: Railroad Co. was interpreting a railroad charter in Washington, DC, where the charter was issued by Congress. The charter provided that 'no person would be excluded from the cars on account of color.' The Railroad, being a Virgina outfit, wanted to segregate the cars. SCOTUS, faced with the question of whether the charter language forbade segregating the cars, said no person excluded meant no segregation, pointing to the then recent passage of the 13th Amendment, and the pending support of the others, as support for the idea that the charter meant to facilitate the ongoing process of removing disabilities from Black Americans. When stronger language was used in CRA 1875 (18 Stat. 335) that all Americans were entitled to "full and equal enjoyment" (id., 336) of various public accommodations, including transportation, it is doubtless true that segregation would have been outlawed in the same stroke.

      As to point 2, I'm saying at the outset Originalism would have mooted Plessy, and therefore most of Jim Crow, by having found the Civil Rights Act of 1875 to be constitutionally authorized under the enforcement clause. That is not quite the same as saying Originalism demanded an equal protection clause analysis that would reach the same result, although I tend to believe it would have done in instances where state actors were implicated (railroads included). It seems to me Justice Harlan had the better argument throughout that string of cases. "Our constitution is color-blind and neither knows nor tolerates classes among its citizens," Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., Dissenting).

    4. Which enforcement clause? 13th, 14th, or both? If the 14th, how do you get there if you think the 14th Amendment contains a state-action requirement?

    5. 14th, specifically, though obviously the 13th's also created some congressional authority (in removing the disabilities of having been a slave, or legal bars attached to that status for instance) The presence of the enforcement clauses, it seems to me, signals that there are limits to the degree to which the 14th Amendment's override of state/local policy vis-a-vis race is self-effectuating, i.e., enforceable from the bench. The sensible boundary of the amendment's mandate is its text, the sensible boundary of its self-effectuation is state-action. Since equal protection guarantees equality under the law specifically, the state-action element there is inherent. As to what the enforcement clauses might support, I think it likely Congress was authorized to specify what certain capacious promises like Privileges and Immunities (c.f. congressional authority in Full Faith and Credit) would entail; moreover, I feel that incorporation of the Bill of Rights against the States was more or less implicit in that section.

  3. In recognizing the self evident truth that all men are created equal, endowed by God with their unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, our Founding Fathers recognized that due process applies to persons from the moment of creation, when they are brought into being, which is the moment of conception, not the moment we are born.
    It is a self evident truth that speciation occurs at conception, thus every son or daughter of a human person can only be a human person, that only a man and woman can exist in relationship as husband and wife, and

  4. And that marriage cannot be existing in relationship as husband and wife, and not existing in relationship as husband and wife, simultaneously.

  5. Slavery, abortion, and identifying persons according to sexual desire/inclination/orientation, in objectifying the human person, and denying the personhood of either a son or a daughter, all deny the inherent Dignity of the human person and are a violation of our unalienable Right to Life, to Liberty, and The a Pursuit of Happiness. What you believe to be an argument that either supports or rejects originalism, is in essence, due to a failure to recognize the essence of personhood, and the fact that in recognizing it is a God Who Has Endowed us with our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, our Founding Fathers recognized that the purpose of our unalienable Rights, are what God intended. The denial of the essence of personhood is what has led to errors regarding Due Process.

  6. It is important to note that before The Fourteenth Amendment was ratified, The Fifth Amendment existed.
    Being, in essence, the son or daughter of a human person, does not depend on location, or whether or not that son or daughter is residing inside or outside their mother's womb. To be or not to be, may be the question, but the fact is, one cannot be and not be, simultaneously.