Every year at the Originalism Works in Progress Conference I use the time at the beginning of the conference to highlight what I regard as the more important events concerning originalism in the past year. Here are my remarks from this year's conference on Feb. 9-10.
The year prior to the past one was, of course, a momentous year for originalism. While the past year was not as important, originalism continues to grow in influence and to be a central topic of constitutional and statutory interpretation.
Students for Fair Admissions
Perhaps the most visible case decided by the Supreme Court in the last year was the Harvard and North Carolina affirmative action case, Students for Fair Admissions. The result in that case was extremely significant, but what was the role of originalism?
I would say that originalism’s influence was mixed. On the one hand, Chief Justice Roberts’s majority decision did not really employ originalist reasoning. It had only two paragraphs on original meaning and early precedent — so not very much. In this respect, the decision to change the law in an important case, like in the Dobbs abortion case, was not primarily premised on originalism.
On the other hand, Justice Thomas’s concurring opinion spent many pages arguing that the original meaning of the 14th Amendment prohibited state affirmative action. Critics of Justices Thomas (and Scalia) had in the past rightly criticized them for advocating a colorblind constitution without justifying their decision based on the original meaning. So Thomas’s opinion placed originalism in a much more central place in the argument that affirmative action is unconstitutional.
Originalism also played an increased role concerning affirmative action in Justice Gorsuch’s concurrence, where he argued that the original meaning of Title VI of the Civil Rights Act prohibitied all discrimination on the basis of race.
Of course, the principal dissent also addressed the original meaning of the 14th Amendment from a different perspective, reading it to allow affirmative action.
Thus, while the majority opinion in Students for Fair Admissions did not mainly rely on originalism, originalism played an important role in several opinions in the case. This is a change from past decisions in this area.
Biden v. Nebraska
Another very visible case was Biden v. Nebraska, where the Supreme Court held that the Biden Administration’s student loan forgivenesss program was not authorized by the Heroes Act.
The Court’s decision involved an extremely important matter implicating the interpretation of agency statutes – the major questions doctrine. This relatively new Supreme Court doctrine holds that in certain case where the agency asserts significant authority, the Court will require a clear statement authorizing the agency’s actions.
Initially, the MQD appeared to be justified as a substantive canon of interpretation – as a means of protecting the value of not allowing excessive delegations. Justice Gorsuch defended this and the Court’s majority decisions also seemed to suggest it. But in my view there are serious problems with this argument. If the Court has the power to establish new substantive canons – not merely to enforce long existing canons – then that power is very much like a living constitutionalist approach to statutory interpretation. The Court is largely enforcing the values it likes. This is not something originalist justices ought to be doing.
Thus, I have been happy to see originalists pushback against the substantive canon approach. In Biden v. Nebraska, Justice Amy Coney Barrett defending a different version of the MQD as a linguistic canon – as based on how people use the language – which is in my view far more consistent with originalism. Ilan Wurman has also argued for the linguistic canon. I have even added my voice.
I view this pushback as a commendable effort by originalists to police the actions of other originalists to keep them in conformity with originalism. It shows originalists being willing to sacrific results to legal principle.
To be fair, I do recognize that some originalists defend the substantive canon version of the MQD. But in my view, the strongest defense of the substantive canon view would rely on conceptualizing interpretive canons as a form of general common law that can slowly evolve to reflect new circumstances. That defense might view the MQD as an evolved rule that responds to new circumstances – and would not allow judges to assert the power to freely decide which values to protect. Unfortunately, I have not seem a significant defense of the substantive canons along these lines.
Another important case from last term was Tyler v. Hennepin County. Hennepin County involved the question whether the government could keep the proceeds of a sale of a person’s property, when the person only owed a portion of the larger sum. Taxation may not be theft, but this sure seemed like it was. The Court concluded that the Takings Clause prohibited the behavior, relying on traditional English law as well as early federal and state statutes. While the opinion may not have had a long discussion of the originalist evidence, it represented more originalism than virtually all of the Court’s decisions under the Takings Clause.
Trump Disqualification
One of the most important originalist developments of the past year involves a matter that has only been argued at the Supreme Court yesterday. And that, of course, is the question whether former President Trump is disqualified from serving as President again under section 3 of the Fourteenth Amendment. The debate in this area has focused primarily, although not exclusively, on the Constitution’s original meaning. Thus, most participants in the debate seem to believe that this enormously imporant question for our country should be resolved based on the Constitution’s original meaning.
Significantly, originalists are on both sides of this question, as the debate tomorrow amply illustrates. The large number of questions that are at issue, on which originalists have been contending, indicates just how contentious issues of original meaning can be even among those who are engaged in the enterprise in good faith.
While this might lead some to question the determinacy of originalism, it is always important to compare it to the alternative. If we were to decide the disqualification question based on political principles – whether the high politics of principle or the low politics of partisanship – the disagreements would be at least as contentious. But more importantly, under originalism there is concrete evidence in the form of constitutional language and historical meaning that must be addressed. This provides far more constraint than does either high or low politics.
Argued Cases
While the Supreme Court decisions have been important, perhaps the past year is most noteworthy for the large number of originalist oriented cases that have been accepted by the Supreme Court for decision. It is hard to know which of these will be decided on originalist grounds, but they all have been argued at least in part based on originalism.
Perhaps the most important of these cases are Loper Bright and Relentless, which raise the question whether Chevron deference should be cut back or eliminated. These cases have been argued in part based on the view that Chevron conflicts with the original meaning of the Administrative Procedure Act and of the Constitution. If Chevron is overruled, that would be quite significant.
But there are other important originalist oriented cases involving administrative agencies. There is Community Financial Services Association v. CFPB involving the limits of the Appropriations Clause, which Christine Chabot will be talking about today. And there is SEC v. Jarkesy, which raises several important constitutional questions but seems destined to be decided based on the Seventh Amendment.
Finally, there is Moore v. United States, a tax case which asks whether the federal government can tax unrealized income without apportionment among the states. This involves an important question concerning the original meaning of the 16th Amendment – one that might have important implications for the constitutionality of a wealth tax.
Many of these cases have arisen from Circuit Court decisions, with either majority or dissenting opinions that raised significant originalist questions. These decisions, which identified originalist questions so that the Supreme Court could address them, show the importance of originalism in the inferior courts.
Academic Originalism
Let me conclude by saying that academic originalism has in the past year continued on its strong path. The debate on the original meaning of the Second Amendment is perhaps worthy of special note. More generally, the recent originalist debates – with originalist arguments on both sides – of those arguing over whether the Constitution’s original meaning gives the President removal authority over exective officials, whether it places significant limits on the delegation of legislative type authority, and on the original meaning of the Privileges or Immunities Clause – continue and are as extensive and significant as any originalist debates have ever been.
Posted at 8:00 AM