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Abstract: Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists—the “framers” of originalism, if you will—as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated—and continue to articulate—a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation.
Our account of originalism’s evolution—and of the extensive disagreement among originalists today—undermines originalists’ normative claims about the superiority of their approach. Originalists’ claims about the unique and exclusive legitimacy of their theory—that originalism self-evidently represents the “correct” method of constitutional interpretation—founder when one considers that originalists themselves cannot even begin to agree on what their “correct” approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and thus that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism; because each version has the potential to produce a different constitutional “meaning,” the constitutional meaning that a committed originalist judge would find turns out to be anything but fixed. As originalism evolves, the constitutional meanings that it produces evolve, too. Today’s originalists not only reach results markedly different from those originalists reached thirty years ago, but also produce widely divergent results amongst themselves. Judges committed to the originalist enterprise thus have significant discretion to choose (consciously or subconsciously) the version of originalism that is most likely to dictate results consistent with their own preferences. As such, originalism suffers from the very flaws that its proponents have identified in its alternatives.
constitutional law, originalism, constitutional interpretation, interpretation
Abstract: There was a time when judges routinely deployed legal fictions, which Lon Fuller famously defined as false statements not intended to deceive, in order to temper the disruptive effect of changes in legal doctrine. In an age of positive law, such classic legal fictions are significantly less common. But they have been replaced by new legal fictions. In fashioning legal rules, judges rely with surprising frequency on false, debatable, or untested factual premises. At times, of course, such false premises simply reflect judicial ignorance. But there is an increasingly large body of empirical research available to judges, and more often than not judges' reliance on false premises is not the result of ignorance. Instead, judges often rely on false factual suppositions in the service of other goals. In this article, Professor Smith discusses a broad range of examples of new legal fictions, false factual suppositions that serve as the grounds for judge-made legal rules. The examples, drawn from diverse areas of doctrine, suggest a set of reasons, albeit generally unexpressed, why judges rely on new legal fictions. Sometimes judges rely on new legal fictions to mask the fact that they are making a normative choice. Other times, judges rely on new legal fictions to operationalize legal theories that are not easily put into practice. Still other times, judges deploy new legal fictions to serve functional goals and to promote administrability in adjudication. Finally, new legal fictions often serve a legitimating function, and judges rely on them - even in the face of evidence that they are false - to avoid what they perceive as de-legitimating consequences. Judges rarely acknowledge that their ostensible factual suppositions are in fact new legal fictions, and they rarely articulate the reasons for relying on them. Even assuming one concludes that judges' apparent rationales for relying on them are valid, therefore, there is a serious question whether those rationales outweigh the general interest in judicial candor. After all, a general requirement of judicial candor - which permits the academy and the public to debate, criticize, and defend judges' grounds for decision - is essential to constraining judicial power. To be sure, whether any particular reason for judicial reliance on a new legal fiction is justified turns in part on an empirical judgment about the extent to which the new legal fiction actually achieves the end that the judge deployed it to achieve. But even when we can satisfactorily answer such empirical questions, we are still faced with a normative judgment about the relative desirability of candor and the goal served by dispensing with candor. Professor Smith concludes that the ends served by reliance on new legal fictions usually are not sufficient to overcome the presumption in favor of judicial candor, but that in rare cases dispensing with judicial candor might be justified.
Legal Fictions, Judicial Candor, Social Science and Law
Abstract: In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions. In other words, the original understanding was that constitutional ambiguities would be resolved, among other means, through adjudication. During his lengthy tenure, Chief Justice John Marshall had ample occasion to fix constitutional meaning, and he presided over a Court that resolved many constitutional ambiguities according to a nationalistic view of the relationship between the states and the federal government. A majority of the current Supreme Court has consistently advanced an account of the original understanding that is substantially more solicitous of state autonomy. The Marshall Court's nationalistic interpretations of the Constitution pose a dilemma for these originalists: either discount the significance of Marshall Court decisions in order to declare an original understanding that values state autonomy, thus risking infidelity to the original understanding of how constitutional ambiguities would be resolved, or accept the nationalistic implications of Marshall Court decisions and risk undervaluing state autonomy in the quest to define the original understanding. This article presents the results of a study of the Court's treatment in federalism cases since 1970 of Marshall Court decisions. The study demonstrates that the Justices in the federalism majority are substantially more likely to discount the nationalistic implications of Marshall Court decisions - or to ignore them altogether - than are the Justices in the dissent, who are significantly more likely to urge fidelity to the spirit of Marshall Court decisions. The study suggests that the Justices, while professing fidelity to the principles of originalism, have not robustly, or at least consistently, adhered to the original understanding of how constitutional ambiguities would be resolved. More important, the study suggests that one of the principal justifications for originalism - that it will constrain the discretion of judges to impose their own views in the course of decision-making - is overstated. In choosing when to treat a constitutional ambiguity as definitively resolved by a decision of the Marshall Court, a Justice can ignore (or accept) pronouncements of that Court according to how well they correspond not only to the Justice's own conception of the original understanding, but also to the Justice's instrumentalist goals.
Originalism Federalism
Abstract: Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress's authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress's role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges - textualists and non-textualists alike - read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction. Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court's textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction. Textualism's goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority - such as in the general federal-question statute - being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court's textualists of jurisdictional statutes suggests that the textualists' urge to constrain judicial power has sometimes trumped the textualists' demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress's instructions. This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts' authority to decline to exercise jurisdiction that Congress ostensibly has granted.
jurisdiction, textualism, statutory interpretation, constitutional law, and judicial role
Abstract: This paper starts from the proposition that although the Rehnquist Court imposed limits on federal power in the name of states' rights far more aggressively than did its post-1937 predecessors, it just as often chose not to impose limits in cases that otherwise fairly can be thought to have presented a question of federalism. The article then makes three claims. First, the article argues that any ultimately satisfying account of the Rehnquist Court's federalism doctrine must acknowledge that the decisions have often appeared to be driven as much by the Justices' policy preferences about the underlying substantive matters at issue in the cases as they have by any neutral theory of federalism. Second, the article acknowledges that there are other accounts of why the Rehnquist Court only selectively invoked federalism, but argues that none of those accounts is superior to the instrumentalist account as a descriptive matter. To the extent that those accounts do accurately capture the Rehnquist Court's federalism doctrine, moreover, the article argues that they nonetheless leave the Justices room to choose when to invoke federalism and when to preference other values, constitutional or otherwise. And it is in the exercise of this doctrinal discretion that the Rehnquist Court has invited the charge that its federalism cases are driven as much by instrumentalist goals as by neutral principles of federalism. Whereas the first two claims address the ends in federalism cases - in the sense that the Rehnquist Court's federalism cases cannot be understood without considering the underlying policy objectives advanced by those decisions - the article's third claim concerns the means in federalism cases. Specifically, the article considers why, if the instrumentalist account is correct, the ostensible constraints of judicial convention - particularly the requirement of a reasoned judicial opinion and the practices of adherence to precedent and (for those who claim to be originalists) reliance on a finite set of original source materials - have failed in federalism cases. The article's third claim is that careful study of the Rehnquist Court's federalism decisions reveals that the Justices systematically made careful, selective use of precedent and selectively relied on founding-era voices in cases in which originalism was the chosen methodology.
Rehnquist, Federalism, Instrumentalism
Abstract: Under Pennhurst, a court may conclude that Congress has imposed a condition on the grant of federal funds to a state recipient only if Congress unambiguously expressed its intent to do so; under Chevron, the existence of statutory ambiguity with respect to a particular issue requires the reviewing court to defer to a reasonable agency interpretation of the ambiguous statutory language. What, then, should a court do when the terms of a federal-state grant program's condition are not fully elaborated in the statute and when the agency charged with enforcing the statute has issued regulations that purport to define the terms of the condition? Such controversies arise at the crossroads of administrative law and federalism principles. They raise the question whether Chevron deference, which is appropriate only when a statute is ambiguous, ever is warranted when the statutory provision at issue attaches a condition to a state's receipt of funds - a provision that must, in order to be effective under Pennhurst, attach the condition unambiguously. This Essay considers whether the usual principles of Chevron deference govern the interpretation of ambiguous statutory provisions in federal-state grant programs. Resolution of this question depends principally on how one characterizes Pennhurst's clear-statement rule. The first approach, which I call the "accountability model," treats Pennhurst's rule as a structural mechanism to ensure congressional accountability when Congress imposes burdens on the states. Under this framework, Congress (which, at least theoretically, represents the interests of the states), in contradistinction to administrative agencies (which do not), must unambiguously decide whether to impose a particular burden on the states. The second approach, which I call the "state choice model," views Pennhurst's rule as a means to ensure notice - and thus fairness - to the states when a federal grant program imposes a burden on the state recipients. Under this account, the question of which federal actor (that is, Congress or the agency) has imposed a condition on the state is not determinative; the inquiry focuses instead on whether, in light of the information available when the state accepted federal funds, the state can fairly be said to have understood the nature of the bargain, and thus had the opportunity "freely" to "choose" whether to accept the funds. This Essay argues that the accountability model upsets the delicate balance that Pennhurst achieved between federal and state interests and undermines the important values advanced by the Court's decision in Chevron. By requiring an unrealistic standard of congressional precision, the accountability model effectively converts Pennhurst's rule from an interpretive tool to a substantive limitation on Congress's power to regulate through the spending power. The state choice model, on the other hand, accommodates the values advanced by Chevron and limits Pennhurst's application to those cases that involve obvious unfairness to the states. An agency regulation provides a state with notice of its federal obligations just as effectively as a statute does, and states accordingly should be bound if the administering agency has issued an interpretation of the statutory grant condition before the state accepts funds.
Pennhurst, Chevron, Spending, Federalism, Delegation
Abstract: In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the "dignity" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court's anti-federalist majority has invoked background principles of customary international law to justify the expansive immunity it has accorded to the states. In applying the law of nations, courts have refused, absent a clear statement from Congress, to entertain private suits against foreign sovereign states. In so doing, the courts have relied on the "equal dignity" of sovereign nations. In its recent state sovereign immunity decisions, the Court has imported this notion of sovereign dignity from the doctrine of foreign state sovereign immunity. This "doctrinal bridge" is notable for two principal reasons. First, the Court's invocation of the law of nations implicitly suggests that the several states stand in relation to the United States much as do fully sovereign nations. In so suggesting, the Court has found yet another instrument with which to wage the battle over the appropriate role of the states in our federal system. Second, even assuming that it is appropriate to analogize states to foreign nations for purposes of sovereign immunity, the doctrinal consequences of the analogy would be that Congress has authority to abrogate the states' immunity from suit, just as it enjoys such authority with respect to foreign nations. Yet the Court has refused to take the bitter with the sweet; under current doctrine, congressional power to abrogate the states' sovereign immunity is the exception, not the rule. In effect, the Court has treated the several states as more sovereign than fully sovereign nations. This is an unstable place for the doctrine to rest.
Sovereign Immunity, Federalism, Dignity
Abstract: Although a debate continues to rage in the academy and on the Court about the propriety of originalism as a methodology of constitutional interpretation, in federalism cases both the majority and the dissent on the current Court appear to have embraced the approach. Yet their agreement ends there; the Court has consistently divided 5-4 in federalism cases. What explains the disagreement among Justices who appear to agree that the original understanding of the Constitution is also its current meaning? This article presents the results of a study of citation patterns in federalism cases since 1970. The study demonstrates that the Court's current majority in federalism cases gives substantially more weight than does the dissent to Anti-Federalist views. To the extent that the majority relies on Federalist views in establishing the original understanding, it is substantially more likely than the dissent to cite Federalist statements that appear to have been made to allay Anti-Federalist fears about the power of the national government or that (at a minimum) demonstrate more solicitude for state autonomy. Conversely, the dissent is substantially more likely than the majority to cite as evidence of the original understanding the more unabashedly nationalistic views of Federalists; the majority rarely cites these nationalistic statements as evidence of original meaning, choosing instead to discount them as outside the framing mainstream or to read them narrowly or in a context that renders them more federalistic in nature. The results of the study have implications for originalism. Although proponents of originalism have defended the approach on the ground (among others) that it constrains judges' discretion to impose their own views under the guise of constitutional interpretation, the study suggests that judges seeking the original understanding are largely unconstrained in their ability to mold the historical record to serve instrumentalist goals.
originalism, federalism
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