Sunday, October 1, 2017

Debate on Originalism

10/1/2017--Last week I had the pleasure of exchanges at Duquesne Law School and at Pitt Law School with Rick Duncan of Nebraska Law School--not actually debates. Professor Duncan is both knowledgeable and forthright and I only wish national disagreements could be entertained as fruitfully. Both the students and I learned a great deal about law and religion and originalism. Here are my remarks on the Lutheran Church case and originalism, which I discussed on this blog in July. My thanks to Pitt Law School and the Pitt Federalist Society, as well as the Duquesne Federalist Society for the invitations.
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Trinity Lutheran Church and the End of Originalism
Bruce Ledewitz

In July, I engaged in an extended exchange with Georgetown Law Professor and, it is fair to say, America’s leading originalist, Randy Barnett on this subject of Trinity Lutheran Church and the end of originalism. Suffice it to say, the exchange went Randy’s way. You can look it up.

But, since, as all law students know, it is possible to lose a debate to a more skilled and more intelligent adversary even though you are actually right, I thought I would try again to explain just what a disaster Trinity Lutheran Church is for the doctrine of originalism and why originalism should have to be retooled in light of that case.

Trinity Lutheran Church held that the State of Missouri was required by the Free Exercise Clause to allow a church to participate in a playground resurfacing reimbursement grant program. The constitutional violation consisted in prohibiting the church’s participation in a government benefits program solely because of the church’s religious character.

From the point of view of originalism, what is noteworthy about Chief Justice Roberts’ majority opinion and the concurrences by Justices Thomas and Gorsuch is the unwillingness of any Justice in the majority even to attempt to justify this result by reference to the original public meaning of the Free Exercise Clause or the original public meaning of the 14th Amendment under some theory of due process incorporation.

There is no way to interpret that original public meaning and come to the conclusion that a government’s refusal to provide public funds directly to a church could violate the Free Exercise Clause. Justices Sotomayor and Ginsburg in dissent conclude that providing funds directly a church violates the Establishment Clause. Whether this is so or not—and there is ample historical justification for their conclusion--nothing about the adoption of the Free Exercise Clause could lead to the opposite conclusion that such direct government funding is required. Government funding of churches was highly disfavored among the founding generation. If the interpretive principle of originalism is that the understanding of the framers and the public must determine the content of a constitutional provision, then the decision in Lutheran Trinity Church is just plain wrong.

Some originalists, including Justice Scalia, have suggested that since our constitutional system is based on precedent, even originalist Justices must be permitted to base decisions on clear lines of precedent. But that approach does not justify Trinity Lutheran Church for two reasons: first, the Court’s precedents have actually recognized the constitutional difference between directly funding a religious institution and providing such funds indirectly, as for example through a parental educational voucher system. On the few occasions when such direct funding has been upheld, it has only been with assurances, not present in the Trinity Lutheran Church record, apparently, and certainly not demanded by the Court, that the government funds will not be used for religious purposes. (and the “next” case of using government funds to rebuild a church sanctuary after hurricane Harvey demonstrates the point that the secular playground context is irrelevant).

Nor can the Trinity Lutheran Church decision be justified as an Equal Protection decision in Free Exercise garb. The majority premises the decision on Free Exercise grounds and expressly fails to reach the Equal Protection issue.

It is fair to ask why anyone should care that Trinity Lutheran Church departs from originalist principles. The reason to care is that Justice Gorsuch is widely regarded, and was in fact selected for the Supreme Court, as an originalist. Indeed, the issue at his confirmation hearing was not whether he was committed to that mode of constitutional interpretation, but whether that commitment would prevent the Constitution from adapting to modern life. Justice Gorsuch’s response to that question was that

“The Constitution doesn’t change,” he said. “The world around us changes.”
Judge Gorsuch said that the principles in the Constitution can adapt to the modern world, citing a Supreme Court ruling on GPS tracking devices. “I’m not looking to take us back to quill pens and the horse and buggy,” he said.

But if the Constitution does not change, the framers’ understanding that the Free Exercise Clause does not require direct government payments to a church would have to control. So, one reason that the case discredits originalism is that one of the Justices in the majority had just joined the Court in order to promote the very originalism that the decision in his first big case does not respect.

Yet, Trinity Lutheran Church is far worse for originalism than just not following that mode of interpretation. The main point of originalism, and the reason for what Randy Barnett calls its gravitational pull, is to eliminate, or at least reduce, subjective and political judicial decisions. Originalism is a response to the perception that by the end of the Twentieth Century, America was increasingly governed by the will of five Justices on the Supreme Court. The recent same-sex marriage case, Obergefell, is a perfect example of what originalists are afraid of. The recognition of same sex marriage jettisons a well-established tradition that marriage is an institution between a man and a woman and renders this change because of a claimed modern alteration in the moral/ethical outlook of only a portion of the American people.

That is precisely what the Trinity Lutheran Church case also does. Protecting religious believers was a central theme in President Trump’s campaign. Religious believers formed a significant part of the coalition that elected him. Trinity Lutheran Church can be viewed as a payoff to that demographic in opposition to pretty clear traditional constitutional principles. If originalism is meant to prevent that kind of subjective, political decision, then the case is a direct repudiation of originalist methodology—a repudiation joined by Justice Gorsuch, its most recent and express devotee.

Furthermore, the failure of the originalist community to condemn Trinity Lutheran Church—Randy Barnett certainly did not do so in our exchange—suggests that even the academic community of originalists are not really committed to the methodology as much as they are to certain case results that originalism usually leads to. They also are willing to pay off religious believers for political benefits.

Ironically, what the Lutheran Trinity Church decision actually illustrates is the utility, even necessity, of the Living Constitution approach to interpretation. For, despite my methodological criticisms, I consider the decision a wise and fair one, just one that contradicts originalism.

While the original public meaning of the free exercise of religion did not include the idea of government directly funding a church, government spending in the late 18th century did not occupy the same role in American life that it does today. For better or worse, we have decided that much of civil society’s activities will be funded by government spending. In our world, lack of access to government funds is a serious handicap to any activity, including religion. So, it is very reasonable today to consider a governmental exclusion from public benefits to represent an unconstitutional interference with religion. And that would include disaster relief.

But the creation of the Administrative State is not the kind of change in understanding that an originalist can acknowledge as justifying a change in interpretation. It is not akin to the invention of a body heat search device the framers could not have anticipated. The framers knew what taxation and spending are and, unless we conceptualize framers who have lived through the changes of modern life, we must say they would have disagreed with the Trinity Lutheran Church result in conception.

The change in the role of government I am referring to is more like the change in scale of violence that might justify very strict gun control laws, or the decline in societal belief in an afterlife that might render the death penalty a cruel punishment. But no self-proclaimed originalist would acknowledge changes like those affecting interpretation of the second amendment or the eighth amendment—and rightly so. For to so acknowledge would obliterate the distinction between originalism and the living constitution approach altogether.

Unexpectedly, considering who made up the majority, the Trinity Lutheran Church decision thus actually demonstrates the superiority of the living constitution method. What we want to know is whether an action by government actually interferes with the free exercise of religion. That interference is what the framers of the Free Exercise Clause wanted later generations to prohibit. If we become convinced that the framers were mistaken in their understanding of what would interfere with the exercise of religion, then we have to depart from their understanding. In other words, only the living constitution approach is faithful to the framers.

I believe that this criticism is a fair, and even theoretically persuasive, one. But, as Hilary Putnam once observed of his criticisms of logical positivism, it will not affect the vitality of originalism in the slightest. There are two reasons for this.

First, there is no principled alternative to originalism today, given our present understanding of reality. The framers were natural law thinkers. For them, the concept of being wrong about a fundamental matter was comprehensible. That is why they could write the Ninth Amendment. There could actually be fundamental rights that might be discovered by a later generation. If so, such a right should be protected by the Constitution. I believe they would consider some of the parental rights decisions to represent exactly such a discovery.

But if rights are not real, if a rights claim can only represent an assertion of human will and power, then the notion of reasoning about rights is an illusion. At that point, there is nothing objective and anything is possible. Original public meaning is at least a starting point that will restrain judges to a certain extent.

I consider this situation to be unsustainable. What we have learned is that the easy invocation of nihilism in a John Hart Ely, in his book Democracy and Distrust, for example, has disastrous consequences for social life. Over time, skepticism is an acid that eats away the rule of law completely. In addition, the work of Hilary Putnam, who spent his life struggling against these forms of positivism, gives us hope that postmodernism is not the last word. I hope we can recover realism about values. We are having a Symposium at Duquesne Law School in November on Resurrecting Truth in American Law and Public Discourse, which will address these issues. But that is for another day.

The second reason for the continued dominance of originalism is not so forthright and honest. There is a strong partisan edge to the current originalist grab for power. You could see it in the shameful treatment of Judge Merrick Garland. You could see it in the nuclear option invoked to confirm Justice Gorsuch. You can see it in the fervent support of President Trump by some leaders who disagree with him fundamentally. They are willing to put up with a lot in order to seize the Supreme Court.

What is behind this partisan push? Fundamentally, it is similar to what was behind the push to seize the Court from the left when it looked like Hillary Clinton was a shoe-in. Mark Tushnet actually put forth a list of proposed decisions.

On the right, the content of the push is not so clear, however. Certainly there is a desire on the right to head off any more attacks on religious liberty. So, the Trinity Lutheran Church decision was very much to be expected.

Beyond that, while overruling Obergefell and Roe might be anticipated by a Supreme Court on which President Trump has replaced Justice Kennedy, I don’t know of any indication that Justice Gorsuch intends to do that. Certainly, he was not put on the Supreme Court with the expectation that he would do that.

What was Justice Gorsch put on the Court to do? What explains the blood lust on the right to take over the Court when the Republican Party already controls the other two branches of the government?

At the risk of sounding like a conspiracy theorist, I believe the purpose of this recent effort is to overturn the Revolution of 1937, in both its Commerce Clause and due process aspects. Justice Thomas has consistently indicated his fundamental disagreement with the thrust of the J&L Steel case and its substantial effect on interstate commerce test. Justice Thomas wants to overturn the New Deal.

While the congressional commerce power was cut back in Lopez and Morrison, the Court in those cases made it clear that the power of Congress to regulate any matters remotely related to economic life was not being disturbed. J&L Steel was accepted even as its extensions were rejected. Now there may be two votes to overturn J&L Steel—Justices Thomas and Gorsuch —and soon there may be more. This is not your Justice Scalia’s judicial conservatism.

The other side of the Revolution of 1937, the due process holding of West Coast Hotel, may be similarly at risk. Randy Barnett has expressed his view that the Lochner Court was not wrong in its understanding of liberty of contract, but erred in following the repudiation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House cases. And I imagine Randy will have a say as to who is next nominated to the Supreme Court.

I may of course be mistaken about all this. But if I am right, then many politicians in Congress, including some Republicans, are in for a big surprise. As are the American people, unfortunately. If this judicial revolution is going on, it is going on in stealth.

Since, as the Luther Trinity Church case demonstrates, originalism is not a consistent or coherent method of interpretation, its self-professed devotees should have to defend these changes in constitutional meaning on the merits and not, as they like to pretend, as simply what the Constitution says.

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