At Dorf on Law, Guha Krishnamurthi: We Can’t Be Originalists *and* Textualists Now. From the introduction:
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court set forth a new test to determine whether a particular firearms regulation is in accord with the original meaning of the Second Amendment: “history and tradition.” At the critical step of the inquiry, the Court would essentially look to whether the challenged firearms regulation has a historical analogue. This “history and tradition” test is the new rage—it has found footing in Second Amendment jurisprudence, but the Court also employed this type of reasoning in Dobbs (reproductive rights) and Kennedy v. Bremerton (the Establishment Clause). … My claim is that the “history and tradition” inquiry of originalism is in tension, and arguably incompatible, with textualism.
First, as a matter of definitions, originalism is a theory of constitutional interpretation that states that the original meaning of the Constitution, when discernible, should dictate the outcome of constitutional cases (that is, such discernible original meaning has priority in deciding cases over all other relevant criteria). Textualism is a theory of statutory interpretation that states the ordinary meaning of the statutory text at the time of enactment, when discernible, should dictate the outcome of cases involving that statutory text—that the original, ordinary meaning of the statutory text is given highest priority in decided statutory cases.
Originalism and textualism are not the same, but they are kin. Conservatives, and more relevantly conservative Justices, have tightly embraced both theories, arguing that both theories cabin judicial discretion, are more democratic, and provide a basis for objective judicial inquiry. (To be clear, I disagree, but I will demur on these points for now.)
In light of that, consider Wolford v. Lopez, decided last Term. The case concerned Hawaii’s law, passed after Bruen, “that prohibit[ed] firearms on private property open to the public without the express and affirmative consent of the property owner.” The Court struck down the law, as it failed the “history and tradition” test set forth in Bruen. That Court’s application of the test proceeded as follows: First, the Court must determine whether the regulation in question activates the Second Amendment by impeding the individual right to bear arms. If so, then the regulation is presumptively unconstitutional, unless it is in accord with our history and tradition. To determine this, the Court must investigate whether there is a historical analogue to the regulation in question.
The post then notes that in defending the law, Hawaii pointed to
[l]aws, dating from before the first Founding, that (in exemplar language) “made it unlawful to ‘carry any gun or hunt on the improved or inclosed lands of any plantation, other than his own,’ without securing ‘license or permission from the owner of such lands or plantation.’” The Court termed these laws regarding “unauthorized hunting.”
And from the core of the argument:
an examination of [the laws’] plain text reveals striking similarities with Hawaii’s statute. With both, in order to carry a gun on someone else’s property, you needed to have previously secured their (explicit) permission. But the Court was unconvinced. Instead, the Court stated that if you look to the purposes behind these statutes, you understand their difference: the candidate analogues were not about carrying guns, but rather about the distinctive harms of unauthorized hunting, like loss of property and disturbance of tranquility.
… the Court went beyond the ordinary meaning of the text at the time of enactment and instead looked at the underlying purposes of those laws. Had the Court limited itself to the ordinary text of the candidate historical analogues and then compared that to Hawaii’s statute, that was nearly a “historical twin” or “dead ringer.” But the Court instead told us that to really understand the legal content of those historical statutes, you must look at the legislative purposes and intentions behind those statutes. That seemingly repudiates the core tenet of textualism—that the ordinary meaning of the statutory text dictates its legal content. Consider what Justice Gorsuch wrote for the Court in Bostock as a paean to textualism: “If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives.” But that is precisely what the Court did in Wolford.
This seems like an important criticism, though I’m not sure how much weight it carries. At most it seems not to show that one cannot be both an originalist and a textualist, just that the current Justices aren’t always as textualist as they say. (I’m willing to concede that point.) Moreover, I think the identity between the challenged Hawaii law and the historical laws is overstated – on a quick look, the historical laws were just about “plantations,” not about private land open to the general public, as the modern law was. This, coupled with the historical laws’ express reference to hunting (consistent with their limit to plantations, where one would expect a problem with unauthorized hunting), seems to indicate a distinction based just on text and context.
Bu I agree with the broader point that the history and tradition test has the potential to go beyond textualism into speculation about purposes.
Posted at 6:14 AM