Living Originalism

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\u27s evolution-and of the extensive disagreement among originalists today-undermines originalists\u27 normative claims about the superiority of their approach. Originalists\u27 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 along with it. Today\u27s 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

Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages

In Philip Morris v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of this landmark decision. It argues that, although the Court\u27s procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages - questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution\u27s criminal procedural safeguards? The Article argues that punitive damages are properly conceived of a form of punishment for private wrongs: judicially sanctioned private revenge. As such, the Article explains, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law and thus make an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public. The Article concludes by considering the future of punitive damages in light of the Williams decision. It concludes that, contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of substantial extra-compensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. It is the fact that punitive damages punish, and that they do so in order to vindicate the interests of the state, that precludes their use to address third-party harms. Once the element of punishment is eliminated from the remedy, the constitutional infirmity at issue in Williams is ameliorated

The Other Half Of The Abortion Right

Planned Parenthood v. Casey’s undue burden test provides that an abortion regulation will be unconstitutional if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Although Casey phrased the inquiry as a disjunctive two-pronged test—purpose or effect—courts and commentators alike have essentially ignored half of the test—the purpose prong—altogether. This is perhaps not surprising, given that Casey’s discussion of wrongful purpose was both cursory and seemingly incoherent. Commentators have long been mystified by the fact that Casey simultaneously precludes the states from enacting a law whose “purpose . . . is to place a substantial obstacle in the path of a woman seeking an abortion” and permits the states to enact “regulation[s] aimed at the protection of fetal life,” notwithstanding the fact that it would seem that every abortion restriction is designed to limit access to abortion in order to protect fetal life. Courts cannot build coherent doctrine around an incoherent premise, and they eventually give up trying. But, in an age in which hundreds of abortion restrictions are being enacted nationwide each year—many of which are demonstrably designed to cut back on abortion rights and access to abortion services—it is high time to revitalize the other half of the abortion right. This Article attempts to do just that—to provide a much needed theoretical and doctrinal framework for applying the maligned and too-often-ignored purpose prong of the undue burden test

Revitalizing the Forgotten Uniformity Constraint on the Commerce Power

Employing a straightforward textual reading of the Commerce Clause, which, unlike various other constitutional clauses, does not expressly mandate uniform regulation, the Supreme Court has recently declared that Congress is free to enact commercial regulations that apply in some states, but not in others, or that explicitly treat some states differently than others. This Article seeks to call that conclusion into question, and in the course of doing so, to explore the proper roles of history and text in constitutional decisionmaking. From a historical perspective, the desire for uniformity was both the precipitating factor in the creation of the federal commerce power and a fundamental limitation upon that power. Fearing that Congress would use the commerce power as a means of discriminating in favor of some states at the expense of others, the Constitutional Convention ratified a provision intended to preclude Congress from enacting nonuniform regulations of commerce. For purely stylistic reasons, that provision was ultimately broken into two different clauses: the Port Preference Clause and the Uniformity Clause, but the framers understood those clauses to be one in purpose, and to have the combined effect of categorically prohibiting the nonuniform exercise of the commerce power. Because the framers narrowly conceived the commerce power as extending only to the imposition of excises and duties and the regulation of navigation and shipping, their decision to divide the mandate against the nonuniform regulation of commerce into two, more narrowly drawn clauses seemed inconsequential. The Uniformity Clause, which requires all excises and duties to be uniform throughout the United States, and the Port Preference Clause, which precludes Congress from enacting regulations of navigation or shipping that favor the ports of one state over those of another, were sufficient in their day to fully protect against the nonuniform exercise of the commerce power. In today\u27s world, however - a world in which the commerce power has achieved a drastically broader ambit - if we continue to read the Uniformity and Port Preference Clauses narrowly and literally, and if we fail to imply a general uniformity constraint on the commerce power, then we fatally undermine the fundamental constitutional principle that pervaded the Constitutional Convention that Congress must not be permitted to use the commerce power to favor some states at the expense of others. This Article contends that we should interpret the Constitution in a manner that preserves this fundamental precept and ensures that it remains relevant and vital in the twenty-first century and beyond

The Sacrifice of the New Originalism

This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a theory that affords massive discretion to judges in resolving contentious constitutional issues. The Article suggests that there is something unsustainable in the current state of affairs. Originalism gains it salience in the public discourse by its continued reliance on a promise to constrain judges; it is that promise that brings it lay respect. Yet, it gains academic respect only by foregoing that promise. Originalism now garners esteem from much of both the public and the academy, but only because the public and the academy are speaking of very different things when they refer to originalism. Originalism somehow continues to thrive as both a political movement and as a scholarly theory, even though the features that make it attractive as a political movement render it impotent as a scholarly theory and vice versa

A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause

If there is one principle of Establishment Clause jurisprudence that has enjoyed the unanimous support of all of the Justices of the Supreme Court over the last half century, it is that all religions are afforded equal status under the Constitution. With his dissenting opinion in the 2005 Ten Commandments cases, however, Justice Scalia has upset that consensus. According to Justice Scalia\u27s dissent, the Establishment Clause affords greater protection to the believers of some religions (Christianity, Judaism, Islam) than others (Hinduism, Buddhism, no religion, everything else). Turning traditional constitutional law on its head, Justice Scalia\u27s approach treats the Establishment Clause in the context of governmental religious expression neither as a mandate for equality, nor as a vehicle for protection of the minority against the tyranny of the majority, but rather as a mechanism for protecting the majority from the inconvenience of having to respect the rights of the minority. And not just that: on Justice Scalia\u27s view, it appears that the Establishment Clause affords greater protection only to the majority religious outlook (Judeo-Christianity) that was prevalent at the time of the framing. If ever the tables are turned, and the practitioners of other religions (or of no religion) achieve majority status in some communities, the Establishment Clause will not extend the same rights and powers to them that it extends to the adherents of Judeo-Christianity. To Justice Scalia, biblical monotheism is and always shall be the preferred religion of the American Constitution. This Article critiques Justice Scalia\u27s theory on three principal grounds. First, it argues that Justice Scalia\u27s reasoning is based on a misguided conception of inclusiveness and of minority rights, wrongly suggesting that an equality norm that protects approximately eighty-five percent of Americans, at the expense of the other fifteen percent, is somehow constitutionally acceptable. Second, it argues that Justice Scalia\u27s defense of his rule on the ground of a perceived need for doctrinal consistency rings hollow, both because his own rule manifestly does not achieve the consistency that he seeks, and because it is misguided to insist, in the name of consistency, that the Court\u27s traditional mandate of neutrality in religious matters is somehow discredited by the Court\u27s pragmatic refusal to immediately extend it to the full extent of its logical reach. Finally, this Article argues that Justice Scalia\u27s rule cannot be defended on originalist grounds, because although it aligns almost perfectly with the political preferences of the religious right, it is both theoretically bankrupt and demonstrably not mandated by, nor even supported by, the historical evidence of the original meaning of the First Amendment on which it is purportedly based. In that respect, Justice Scalia\u27s dissent stands as a stark example of the inability of originalism to produce in practice - even when practiced by its most able disciples - a genuine apolitical constitutionalism

Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Individual, Private Wrongs

The practice of using punitive damages to punish a tort defendant, in a single case brought by a single one of many victims, for the full scope of societal harm caused by its entire course of wrongful conduct has become increasingly common in modern tort cases. This practice presents the troubling possibility that more than one victim will recover punitive damages awards that were each designed to punish the defendant fully for the same course of wrongful conduct, resulting in unjustly severe cumulative punishment. Many courts and commentators have responded to this multiple punishment problem with complex and far-reaching proposals designed to protect against it. This Article argues that these observers have been asking the wrong question. The proper question is not whether awarding these total harm punitive damages to more than one victim can sometimes lead to unconstitutional results, but rather whether awarding these damages to even a single victim is itself unconstitutional. This Article argues that it is. These total harm punitive damages awards are a product of the modern conception of punitive damages, which imagines them as punishment for public, societal wrongs. This Article challenges the historical accuracy of this modern theoretical account, and reveals that historically, punitive damages were considered to be punishment only for the distinct, private legal wrong done to the individual victim. When the same conduct harmed more than one victim, the courts limited each plaintiff\u27s recovery of punitive damages to the amount necessary to punish the defendant only for the private wrong done to the individual plaintiff. This Article argues that both historically and presently, the constitutionality of punitive damages is dependant upon their existence as punishment for individual, private wrongs, rather than public, societal wrongs. Thus, the revolutionary proposals offered by commentators seeking to solve the multiple punishment problem go both too far (by declaring that the Constitution requires radical alterations to traditional punitive damages practice) and not far enough (by assuming that the constitutional infirmity of total harm punitive damages lies only in multiple awards of them). This Article argues that the constitutional concerns are best addressed by returning to the roots of punitive damages doctrine and re-implementing the historical conception of punitive damages as punishment for the private wrong done to the individual plaintiff

ORIGINALISM AND STRUCTURAL ARGUMENT

The new originalism is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and separation of powers in lieu of the original meaning of any particular provision of the Constitution. This Essay demonstrates and examines the underexplored tension between original meaning textualism and structural argument

Originalism and the Ratification of the Fourteenth Amendment

Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment—which they despised—as a condition of ending military occupation and rejoining the Union. The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people. This Article explores the fundamental challenge that this history poses to originalism

The Sacrifice of the New Originalism

This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a theory that affords massive discretion to judges in resolving contentious constitutional issues. The Article suggests that there is something unsustainable in the current state of affairs. Originalism gains it salience in the public discourse by its continued reliance on a promise to constrain judges; it is that promise that brings it lay respect. Yet, it gains academic respect only by foregoing that promise. Originalism now garners esteem from much of both the public and the academy, but only because the public and the academy are speaking of very different things when they refer to originalism. Originalism somehow continues to thrive as both a political movement and as a scholarly theory, even though the features that make it attractive as a political movement render it impotent as a scholarly theory and vice versa