A RESPONSE TO A “LIVING CONSTITUTIONALIST”
Bruce Ledewitz is a very smart man who teaches constitutional law at Duquesne University in Pennsylvania. He recently wrote an article for the Philadelphia Inquirer—also reproduced in other news outlets. In his article, he contends that the Supreme Court’s decision this year in Trinity Lutheran Church v. Comer discredited “originalism.” Originalism, of course, is the approach of interpreting the Constitution as the Founders adopted it.
Several leading originalists—including Professor Randy Barnett (Georgetown) and Professor Michael Ramsey (San Diego)—already have published good rejoinders. I’ve been strongly urged to write one as well.
I normally avoid getting into arguments about what kind of interpretation is best. My focus is on researching the Constitution’s history and meaning rather than arguing about it. However, I finally agreed to respond for one reason: I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.
Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.
Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.
Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt:
Professor Ledewitz: “It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation.”
Answer: Professor Ledewitz apparently is unaware that, as explained below, “originalism” is merely the constitutional name for the method of documentary interpretation that has prevailed for centuries in the English and American judicial systems. Failing to take it seriously would be a far more radical change than I think even he would recommend.
Professor Ledewitz: “Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.”
Answer: Textualism is not quite the same thing as originalism. Textualism focuses on the meaning of words while generally avoiding resort to materials generated during the legislative process. It is usually applied to the interpretation of statutes. Pure textualism is more defensible in modern statutory construction than in constitutional interpretation because legislative history is sometimes manipulated in ways that the Constitution’s background was not.
In its most precise form, originalism is the view that judges and other officials should be faithful to the Constitution the people actually ratified (as amended). Originalists believe that judges and other officials should avoid the temptation to substitute a “constitution” they might prefer for the actual, historical document.
Writers often use the phrases “original public meaning” and “intent of the framers” as shorthand for originalism. In the 18th century, the common shorthand for originalism was “finding the intent of the makers.” All those labels can be confusing. According to the rules prevailing when the Constitution was adopted (and today as well, as to almost all other documents), an interpreter tries to recover the understanding of the parties (ratifiers). If, because of insufficient or conflicting evidence the interpreter cannot do so, then he or she applies the original public meaning as a substitute.
Professor Ledewitz: “The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs.”
Answer: Whether one can obtain “truth in political affairs” is not really relevant to the issue of the meaning of a written constitution. One reason for putting the Constitution in writing was precisely to create a rule book to contain and civilize the tumult of politics.
Professor Ledewitz: “Nevertheless, originalism has achieved a real rhetorical dominance.”
Answer: He writes as if originalism were a recent development. But seeking “the intent of the makers” has been the prevailing Anglo-American legal method of interpretation for centuries. The Founders absorbed it from, among others, the 16th century legal scholar Edmund Plowden. During the 18th, 19th, and early 20th centuries it was the prevailing way of interpreting the Constitution. Originalism’s “rhetorical dominance” was achieved because of this history and also because (1) that is how we construe most other legal documents (certain real estate instruments partially excepted), (2) it is hard to justify the current double standard, and (3) non-originalists have failed to agree on principled alternatives.
Professor Ledewitz: “But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap. In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. . . .The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome. But, from the point of view of originalism, the decision was ridiculous.”
Answer: Courts may err in applying any theory of interpretation. Assuming the decision in Trinity Lutheran was wrong, Professor Ledewitz does not explain why one error should discredit a procedure that has served us for centuries.
Professor Ledewitz: “If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.”
Answer: This is incorrect. The primary principle underlying the Establishment Clause was that Congress must treat all religions impartially. The Clause did not extend to the states. Those seeking “disestablishment” at the state level opposed taxpayer subsidies to churches designed to promote particular religions. They did not object to paying a church for unrelated contractual obligations—the scenario in Trinity Lutheran. And they would have been outraged at Missouri’s practice of discriminating against churches generally.
Moreover, as Professor Barnett has pointed out, the part of the Constitution most relevant to Trinity Lutheran is the Fourteenth Amendment, not the First. This is because the Supreme Court has applied First Amendment principles to the states only because of language in the Fourteenth Amendment. Professor Ledewitz’s article is devoid of any discussion—or even any mention—of the Fourteenth Amendment.
Professor Ledewitz: “The historical absurdity of the decision is why only the two dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, discussed the history of the religion clauses. But, since those two justices are not originalists, their discussion must be considered merely opportunistic. There are no originalists on the court.”
Answer: It is poor practice to conclude from a single decision—even assuming that it was erroneous—that there are “no originalists on the court.” Justice Clarence Thomas has applied originalist jurisprudence to countless cases throughout his long tenure. Based on several cases in his first term, Justice Gorsuch also appears to be an originalist.
Professor Ledewitz: “Although no one bothered to say so in the decision, a departure from historical understanding was justified in the Trinity Lutheran case because the modern sense of unjust discrimination is much more robust than when the First Amendment was adopted and government funding of private activity is much more prevalent than in the 18th century, when such spending was largely unknown. What would not have struck the framers as unfair discrimination against religious believers looks like that to us.”
Answer: There are a number of problems with this statement. First, Missouri relied on a section of its state constitution (the “Blaine provision”) designed to discriminate against particular religions, notably Roman Catholicism. This violated the central principle of the Establishment Clause as understood by the Founders, not merely by us.
Also, as noted above, the actual amendment governing the case was the Fourteenth Amendment, which was adopted in 1868, not during the Founding Era. Discriminating against churches in distributing otherwise generally-available funding probably violates that Amendment’s Equal Protection Clause. To contend that Missouri’s practice was consistent with the Constitution, one must argue both that (1) the Establishment Clause does not apply to the states and (2) the Fourteenth Amendment permits discrimination against churches. Professor Ledewitz does not make those arguments.
Professor Ledewitz: “That is how the living constitution works. We apply constitutional principles in ways that make sense today. We do not clone the thinking of political leaders who faced vastly different circumstances. . . .”
Answer: Following the Constitution does not require us to “clone the thinking” of anyone. It requires only that we follow the meaning of the words in a controlling document. Courts do that sort of thing all the time. It’s their job.
Moreover, what are the “constitutional principles” Professor Ledewitz would have us apply? Are they principles that we make up as we go along? In that case, we are acting politically, not constitutionally.
Or does he mean we should derive our constitutional principles from the Constitution? But the Constitution embodies a number of basic principles, and they sometimes conflict. The framers and ratifiers carefully crafted the document’s language to balance those principles in specific ways. Originalist interpretation enables us to understand the results. Non-originalist judges and professors often insist on re-balancing principles to suit themselves rather than inquiring how the Constitution balances them. In doing so, they are acting politically, not constitutionally.
Incidentally, the Founders were thoroughly familiar with judicial balancing. In some parts of the Constitution, such as the Fourth Amendment (“unreasonable searches and seizures”) they authorized it. Basic principles of legal interpretation tell us that where the text, or its legal meaning, do not authorize balancing, then judges have no authority to engage in it.
Professor Ledewitz: “The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory. The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. . . . .”
Answer: An interpretive method that has endured for centuries cannot have been designed to overturn the New Deal of the 1930s. On the contrary, it was “living constitutionalism”—not originalism—that was fashioned for political ends. It was designed to offer a constitutional fig leaf for a federal coup d’etat. Not surprisingly, most people who study constitutional jurisprudence find the fig leaf transparent.
Professor Ledewitz: “Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today. But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.”
Answer: Professor Ledewitz is correct that some aspects of Republican federal tort reform proposals violate the Constitution’s meaning—a conclusion I have previously documented. However, he misunderstands how the Constitution’s enumerated power scheme was designed. The Founders did not give the federal government power to deal with every issue one might think “national in scope.” They were, indeed, practical men, and as such they recognized human activities of some kinds (e.g., religion, manufacturing) often affect others (commerce, foreign relations). But precisely because they were practical, they also recognized that sometimes the advantages of allowing Congress to legislate in all connected areas were outweighed by the disadvantages (e.g. the threat to liberty of centralized power).
Accordingly, the Constitution’s scheme of enumerated powers deliberately reserves certain potentially-national issues to the exclusive jurisdiction of the states. Most aspects of civil justice, including tort law, are in this category. Legitimate interstate action is still possible, however—through uniform state laws, interstate compacts, and, as a last resort, by constitutional amendment.
Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”
Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.
Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.