Missing the Mark on Originalism (and Gorsuch)

I do not know David Rudenstine. According to the small biographical blurb appearing at the end of a National Law Journal article appearing yesterday, he is a professor of law at Cardozo. I am sure he is a good professor, well liked by peers and students alike. However, he evidently does not know much about originalism, thus explaining why he believes that “Gorsuch’s Adherence to Originalism Should Keep Him from SCOTUS.”

Rudenstine starts, “I would vote against any nominee to the Supreme Court who stated that he or she adhered to originalism in construing the U.S. Constitution.” Fair enough. We all must have our non-negotiables, I suppose. But what, exactly, is Rudenstine’s issue with originalism?

At its heart, originalism claims to eliminate improper judicial law-making in construing the Constitution. It does that by promising that historical materials pertaining to the Constitution’s adoption contain definitive answers to contemporary constitutional questions. That attractive idea falls apart upon analysis.

Problem #1: Originalism does not “promise” that “historical materials” can provide “definitive answers to contemporary constitutional questions.” Originalists believe that the original understanding of the text can provide judges with critical guideposts as they apply the text of the Constitution to novel circumstances. Sure, sometimes the answer provided is “definitive,” for example, in McDonald v. City of Chicago where scholars across the ideological spectrum acknowledged that the Fourteenth Amendment prohibited states from banning outright the private possession of a firearm.

This is a careful but critical distinction: while originalists would love to find sufficient historical evidence to resolve all interpretive disputes regarding the meaning of the Constitution, originalists understand this is not possible in all circumstances. They acknowledge that the text can be underdeterminate, thus requiring construction, in order to apply it faithfully to contemporary situations. Like most straw-man critiques of originalism, Rudenstine’s errs out of the gate in thinking originalists believe that a simple flip through Max Farrand’s Records of the Federal Convention can allow a judge, for example, to ascertain precisely whether the Framers would have thought that 24/7 drone surveillance constituted a “search” in the Fourth Amendment sense.

Ok, so he begins with a straw man. Hopefully, he is a bit more careful as he continues, especially since he finds Gorsuch’s adherence to originalism disqualifying. What next?

The theory requires that we determine whose understanding of the original Constitution is definitive. But originalists disagree on this critical point. Some concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution’s meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism’s promise.

Half credit here. He is right that originalists disagree, in part, on “whose understanding of the original Constitution is definitive.” He is flatly wrong in concluding summarily that “this disagreement . . . unravels originalism’s promise.” This is for three reasons. First, few originalists believe that identifying what any one person or group thought about the text of the Constitution can provide the “definitive” answer to the meaning of the Constitution. The original meaning of the text is ascertained by looking at as many data points as possible and then gleaning the meaning thereby, not by figuring out, say, what Gouverneur Morris thought the text meant. Second, I can’t think of any contemporary originalist off the top of my head who believes that the intent of “those individuals who wrote the Constitution” dispositively settles the question of the meaning of the text. This brand of originalism went more-or-less extinct early on, and most originalists now focus on what the text meant to the average enlightened reader at the time of ratification, not what the Framers intended the text to mean. Such evidence only adds data as to what the original public meaning was. Third, I am unaware of any interpretive issue that has divided those who believe that we should look to the ratifiers and those who believe that we should look to the “general public” to figure out the text’s meaning. This point is thus a red herring, as the differences between originalists here are more academic, with little practical difference in interpretive results.

Does Rudenstine’s critique fare any better as he continues?

Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice “law office history,” which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.

Fair enough: judges generally are not trained historians, and law office history can be a problem. But, for one, that’s why the Court invites amici to provide perspectives that the judges themselves might otherwise lack, to aid in deciding hard cases turning on the meaning of the text. Additionally, this is a feature, not a bug, of originalism – it requires hard work, good research, and diligence. But just because a task is difficult does not make it ill-advised or ill-fated – and maybe we should demand and expect more of individuals who are appointed for life to a public office where their job, by and large, is to interpret and apply words written into law? Statutory interpretation is hard, too, but I don’t imagine Rudenstine thinks judges should just abandon the enterprise and apply the law however they want anytime an interpretive dispute arises.

He doesn’t stop here, however:

Originalism assumes that historical evidence yields definitive and comprehensive answers to contemporary constitutional questions. The fallacies here are evident. History is complex and historical inquiries into important and open-ended questions are likely to yield a variety of plausible answers to the same question. Thus, the premise of originalism is naive, unrealistic and unsupportable.

So Rudenstine doubles down on this straw-man that originalists believe historical evidence always provides “definitive and comprehensive answers to contemporary constitutional questions.” I wonder if Rudenstine bothered to read Justice Scalia’s opinion in D.C. v. Heller, which might disabuse him of this, well, “fallacy.” After spilling much ink over dozens of pages exploring the original public meaning of the Second Amendment, Justice Scalia took the time to state clearly all the things that the opinion did not decide, before holding very narrowly that the Second Amendment guaranteed to individuals the right to keep and bear arms in their home. The justices in the majority hardly felt the data yielded “definitive and comprehensive answers” to all “contemporary constitutional questions” related to the Second Amendment. They did, however, believe that the text had some meaning, and they felt it was their obligation to give that meaning effect to the extent the data would support. In my book, that’s called judging. In less controversial or politically-charged cases, I am sure Rudenstine would agree. Why he draws a line with respect to certain provisions in the Constitution is confounding. To boot, Rudenstine’s critique of originalism could equally apply to popular methods of statutory interpretation – for example, wading through the legislative history of a bill, trying to ascertain what the enacting Congress meant and what the general understanding of the language was at the time of enactment, figuring out what the purposes were that animated and precipitated the legislation, etc. Yet something tells me Rudenstine probably isn’t a strict textualist, disavowing these inquiries in favor of a strict, text-bound approach to interpreting statutes.

We’re not done yet:

Moreover, what would late 18th century figures have to say about the constitutional authority of a president to use atomic weapons in a peremptory strike against a foreign power when the Congress has not declared war and with which the United States was not then involved in a military conflict? Are we really looking for “their” answers to such questions, or are we wondering what they would have thought about the Constitution’s meaning if they lived in our time and knew what we now know? This is magical and it makes originalism a farce.

The choice of hypothetical here is perplexing to me, because this one seems pretty open and shut from an originalist perspective: the “late 18th century figures” would probably say that the president lacked the constitutional authority. As Alexander Hamilton explained in 1788, “The President is to be the ‘commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. . . .’ [This] amount[s] to nothing more than the supreme command and direction of the military and naval forces . . . while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.” In other words, the President has no constitutional authority to start a war, only the power to lead the military once Congress has decided to declare one. Since deploying nuclear weapons would surely start a war, the text as originally understood prohibits the President from doing so. It’s not prudent to knock down originalism for being unable to provide answers in the present day and then make use of a hypothetical for which originalism readily provides an answer!

Moving along from this line of attack, Rudenstine finds further fault with originalism:

Originalism also implodes over rights not mentioned in the Constitution — so-called un-enumerated rights — but which are nonetheless considered fundamental. For example, the text of the Constitution does not guarantee the right to have children. Nonetheless, originalists agreed with others that this is a basic right and that the Constitution protects it as it does rights explicitly mentioned in its text, such as the right to a free press, free speech and the free exercise of religion.

Half credit again here. He is right that some originalists become somewhat apoplectic over the use of substantive due process, which is the means by which the Court has recognized unenumerated rights deserving of constitutional protection akin to enumerated ones. So Justice Thomas in Troxel v. Granville concurred while noting “that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision.” The problem to originalists with this method of interpretation is that, as a matter of textual meaning, it seems contradictory to refer to substantive due process. Nevertheless, the Court’s two most outspoken originalists to date – Justice Thomas and Justice Scalia – have both recognized that unenumerated rights may be protected by other provisions in the Constitution. See, for example, Justice Thomas acknowledging that the Privileges or Immunities Clause might protect unenumerated rights here, and Justice Scalia admitting that the Ninth Amendment enshrines unenumerated rights here. Insofar as originalists do not follow the text as written but go along with the use of substantive due process, they generally do so because they feel that stare decisis considerations outweigh applying the original public meaning of the text, especially when the outcomes are the same either way (see, for instance, Justice Alito’s plurality opinion in McDonald v. City of Chicago, identifying the right to keep and bear arms as a right protected by way of substantive due process, an opinion joined by Justice Scalia). Maybe if non-originalists stopped condemning justices as “radical” when they argue that the original meaning of the text should trump judicially-created precedent, we could return to a world in which the parts of the Constitution that do the work Rudenstine describes were given force and effect over against wrongly-decided cases to the contrary.

Nearing the end, Rudenstine gets one more “hit” in:

[T]he framers of the Constitution were ultimately pragmatists who endorsed a brief Constitution. That meant that only the Constitution’s “great outlines [were] … marked” and its “important objects” designated. The duty of all who were called upon to construe the Constitution was, as Chief Justice John Marshall wrote, “never [to] forget that it is a constitution we are expounding,” by which he meant that it was written in general terms to permit it to be construed in light of changing circumstances. Thus, the Supreme Court appropriately adapted the Constitution to modern technology when it applied the Fourth Amendment to telephone surveillance and broadly construed the commerce clause power. Nonetheless, an originalist must reject such sensible thinking as inconsistent with the theory’s basic tenets.

That the framers were pragmatists and that the Constitution is in some parts drawn up in general terms (e.g., “reasonable,” “liberty,” “due process”) does not render originalism anachronistic or unworkable. As mentioned above, originalists recognize that the text may be under-determinate in certain places, thereby requiring construction in order to apply it to contemporary circumstances. Again, just because interpretation and implementation might take a fair amount of work in some circumstances does not render a method of interpretation bankrupt. Adjudication – especially constitutional adjudication – should be demanding. Rudenstine apparently would prefer a world where judges don’t really bother with the meaning and application of the law of the land but instead simply lift provisions out of their historical context as needed in order to concoct new law by fiat. And this lack-of-judicial-constraint is the fault he finds with originalism? How ironic.

As far as the “sensible thinking” Rudenstine mentions (one might question the sensibility of it, but that is neither here nor there for now), it appears Rudenstine’s problem – at least with respect to his point about the commerce power – is with the Constitution itself, not originalism. He is apparently a fan of the Court having “broadly construed the commerce clause power” despite that construction being patently inconsistent with the text of the Commerce Clause, as few people believed the commerce power swept as broadly as the New Deal Court believed it did, up until the New Deal era began. As an aside, just to illustrate this point: if Congress had the sort of power under the Commerce Clause that Rudenstine believes they should have and that the Court “sensibly” allowed them to have, then the Eighteenth Amendment was unnecessary, as Congress could have just passed a law prohibiting all production or importation of alcohol rather than amending the Constitution to ensure they had the authority to do so.

Rudenstine closes:

Because of its fatal flaws, originalism fails to be descriptive of more than 200 years of Supreme Court history and makes promises that cannot be kept. Anyone who is as able as Gorsuch knows that. As a result, instead of being a modest judge who states that he will not make law, he knowingly misleads the American public as to the scope of discretionary authority originalism invests in a judge. In my mind, this disqualifies him from becoming a Supreme Court justice.

“[K]nowingly misleads” is a pretty bold charge. As we have seen, however, it’s not one backed by evidence or coherent reasoning. The only one “mislead[ing]” anyone here is, regrettably, Prof. Rudenstine, who caricatures originalism in order to argue that Judge Gorsuch’s adherence to this interpretive methodology “disqualifies him from becoming a Supreme Court justice.”

If anyone wants to oppose Judge Gorsuch’s nomination, that is their prerogative. But if someone is going to make their case against him in the pages of a national publication, they should probably make an effort to understand what it is they dislike about him.


  1. […] in no small part, talking heads who either do not know any better or do not care are (again) putting originalism in scare quotes, caricaturing, misrepresenting, or otherwise missing the mark […]

  2. There is another concept that I think goes unrecognized (certainly by Scalia at times) in that since we have a FEDERALIST Constitution emphasizing Natural Rights, and not a national or state constitution emphasizing government authority, any doubt or dispute about the meaning should give the benefit of doubt primarily to the People and their Natural Rights over Government, and secondly, to the State over the Federal Government. This instantly resolves most questions of constitutionality in most cases.

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