[Editor's note: For this guest post, we welcome Jeremy M. Christiansen, a 2014 graduate of the S.J. Quinney College of Law at the University of Utah and aspiring academic who writes and publishes on state constitutional law and originalism (see here and here).]
Justice Antonin Scalia’s death was all too real. But the rumors of originalism’s impending demise are greatly exaggerated.
Eric Posner has asserted that “originalism will fade” in the wake of Justice Scalia’s untimely death until conservatives are then left to search for a new unifying theory. Professors Jack Balkin, Ilya Somin, and Larry Solum, have, in my estimation, offered persuasive critiques of Posner’s prediction. But I write to briefly offer another. Posner claims that “[t]he audience for originalist scholarship . . . consists entirely of nine people.” (Emphasis his). He bolsters this conclusion by observing that “[n]ot even the lower courts care about originalism.” Posner is simply wrong on this point, and I think he is wrong in a way that undermines his overall assessment about originalism’s likely vitality.
True enough, the Federal Courts of Appeals rarely are even able to engage in originalist inquiries on account of being hemmed in by binding circuit and Supreme Court precedent. It is the rare case, like Noel Canning, for instance, where the courts of appeals get to try their hand at it. But Posner’s prognostication is undermined significantly by the numerous lower courts that routinely engage in originalism: state supreme courts interpreting their state constitutions. These courts decide numerous issues across the country each year that are largely beyond the reach of federal courts (be it because the state court interprets a provision with no federal analogue or because of Michigan v. Long). So I would say that any account of “originalism” or any predictions about it are entirely incomplete without a survey of state constitutional interpretation.
State constitutions are very similar to statutes. Posner has recognized as much (shoot for pages 1600 to 1601). And state courts treat their statutes and their constitutions quite similarly. State courts frequently invoke “canons” of constitutional interpretation like expressio unius, esjusdum generis, the plain meaning rule, the harmonizing canon, and the independent meaning canon. In statutory interpretation, all fifty state courts of last resort have frequently espoused an originalist (as opposed to a William Eskridge-esque “dynamic”) methodology, like in Alabama where “[t]he cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.” Perhaps it should come as no surprise, then, given these similarities that every state court of last resort uses originalism in interpreting their respective state constitutions. In a forthcoming article on the original meaning of state constitutional search and seizure provisions, I note the extensive invocation of originalist “maxims” of constitutional interpretation. Here are just a few of the numerous examples, drawn from states that are politically and geographically diverse:
Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987) (“When construing the Constitution of Alabama, the primary purpose of this court is to ascertain and then effectuate the framers' intent.”); Cain v. Horne, 202 P.3d 1178, 1181 (Ariz. 2009) (“In interpreting a[n Arizona] constitutional provision, our primary purpose is to effectuate the intent of those who framed the provision.”) (internal quotation marks omitted); Steinhart v. Cty. of Los Angeles, 223 P.3d 57, 71 (Cal. 2010) (“[O]ur task is to effectuate the voters’ intent in adopting article XIII A . . . . The words used in a [constitutional provision] must be taken in the ordinary and common acceptation, because they are presumed to have been so understood by the framers and by the people who adopted the provision.”) (second alteration in original) (internal quotation marks omitted); People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1238 (Colo. 2003) (en banc) (“In construing our constitution, our primary task is to give effect to the framers’ intent.”); Crist v. Florida Ass’n of Criminal Def. Lawyers, Inc., 978 So. 2d 134, 140 (Fla. 2008) (“[T]his Court endeavors to construe a constitutional provision consistent with the intent of the framers and the voters.”) (internal quotation marks omitted); State ex rel. Louie v. Hawai‘i Gov't Emps. Ass’n, AFSCME Local No. 152, AFL-CIO, 328 P.3d 394, 422 (Haw. 2014) (“[W]hen faced with a constitutional question, it is the duty of the court to ascertain and declare the intent of the framers of the Constitution . . . .”) (internal quotation marks omitted); People v. Fitzpatrick, 986 N.E.2d 1163, 1169 (Ill. 2013) (“[W]e look only to the intent of the drafters, the delegates, and the voters in adopting the Illinois Constitution . . . .”); Bonner ex rel. Bonner v. Daniels, 907 N.E.2d 516, 519 (Ind. 2009) (“Interpreting our Constitution involves a search for the common understanding of both those who framed it and those who ratified it.”); State Bd. of Elections v. Snyder ex rel. Snyder, 76 A.3d 1110, 1123 (Md. 2013) (“Our task in matters requiring constitutional interpretation is to discern and then give effect to the intent of the instrument’s drafters and the public that adopted it.”); Michigan Dep’t of Transp. v. Tomkins, 749 N.W.2d 716, 721 (Mich. 2008) (“When interpreting our state constitution, this Court seeks the original meaning of the text to the ratifiers, the people, at the time of ratification.”); Stranahan v. Fred Meyer, Inc., 11 P.3d 228, 237 (Or. 2000) (“[W]hen construing provisions of the Oregon Constitution, it long has been the practice of this court to ascertain and give effect to the intent of the framers [of the provision at issue] and of the people who adopted it.”); Commonwealth v. Rose, 81 A.3d 123, 127 (Pa. 2013) (“Simply put, under long standing and established principles, we are required to examine the original public meaning of the text at issue, giving due regard to both its spirit and the intent of the framers of the clause.”); Riley v. R.I. Dep’t of Envtl. Mgmt., 941 A.2d 198, 205 (R.I. 2008) (“In construing provisions of the Rhode Island Constitution, our chief purpose is to give effect to the intent of the framers . . . . The historical context is important in determining the scope of constitutional limitations because ‘a page of history is worth a volume of logic.’ . . . Therefore, this Court properly consults extrinsic sources including the history of the times and examine[s] the state of affairs as they existed when the constitution was framed and adopted.”) (internal quotation marks omitted); League of Educ. Voters v. State, 295 P.3d 743, 749 (Wash. 2013) (“The court gives the words ‘their common and ordinary meaning, as determined at the time they were drafted.’ The court may look to the constitutional history for context if there is ambiguity. In this particular case, the historical context necessarily includes other provisions adopted contemporaneously with article II, section 22.”); Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408, 421-22 (Wis. 2006) (“The purpose of construing a constitutional amendment is to give effect to the intent of the framers and of the people who adopted it.”).
I do not want to overstate my case, as I fear Posner has done. Originalism is not the sole method of interpretation in state constitutional law. It would be shocking (yet wonderful) if it were. But it is clearly a big-time player. And one can quibble with whether theses courts did it right, whether they err in sometimes going after “intent” versus original public meaning, etc. But none of that distracts from my main point: Whether Posner wants to admit it or not, originalism is an entrenched part of the legal, social, and academic landscape—at both the federal and state levels—thanks in large measure to the efforts of people like Justice Scalia. In light of the substantial use of originalism in state courts of last resort, any claim that originalism is disappearing anytime soon is, as others have pointed out, extraordinarily hasty.
Posted at 6:12 AM