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

In Defense of Judicial Empathy

President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. To date, the debate has been surprisingly one-sided. One federal judge has recently noted that “President Obama’s statement that judges should have ‘empathy’ was met with strong criticism from his opponents and uncomfortable silence from his supporters.” This Article seeks to offer a sustained defense of the President’s call for empathy in judging. Its argument is neither grounded in extralegal, touchy-feely notions of humanity and compassion nor based on some sort of radical vision of wealth redistribution through activist courts. Nor does it spring from a post-Realist rejection of “law” as a legitimate constraining force on judges. Quite to the contrary, the argument is grounded in a firm commitment to the rule of law and a deep-seated appreciation of—rather than rejection of—legal doctrine. Legal doctrine is permeated with reasonableness and balancing tests and other doctrinal mechanisms that cannot possibly be employed effectively unless judges are able to gain an empathic appreciation of the case from the perspective of all of the litigants. A judge can neither craft nor employ legal doctrine competently if she is not willing and able to understand the perspectives of, and the burdens upon, all of the parties. A judge who believes in the popular portrait of judges as umpires, and who rejects as illegitimate calls for judicial empathy, will fail to realize that, while she thinks that she is simply calling objective balls and strikes, she is in fact unwittingly giving disproportionate weight in her doctrinal calculus to the interests of those whose perspectives come most naturally to her. By contrast, a judge who has a talent for empathy and makes a conscious effort to empathize with all parties will not subconsciously undervalue the interests of those whose perspectives she does not instinctively appreciate. As such, far from being the enemy of judicial neutrality, empathy is in fact necessary to impartial judging

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

In Defense of Judicial Empathy

President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. To date, the debate has been surprisingly one-sided. One federal judge has recently noted that “President Obama’s statement that judges should have ‘empathy’ was met with strong criticism from his opponents and uncomfortable silence from his supporters.” This Article seeks to offer a sustained defense of the President’s call for empathy in judging. Its argument is neither grounded in extralegal, touchy-feely notions of humanity and compassion nor based on some sort of radical vision of wealth redistribution through activist courts. Nor does it spring from a post-Realist rejection of “law” as a legitimate constraining force on judges. Quite to the contrary, the argument is grounded in a firm commitment to the rule of law and a deep-seated appreciation of—rather than rejection of—legal doctrine. Legal doctrine is permeated with reasonableness and balancing tests and other doctrinal mechanisms that cannot possibly be employed effectively unless judges are able to gain an empathic appreciation of the case from the perspective of all of the litigants. A judge can neither craft nor employ legal doctrine competently if she is not willing and able to understand the perspectives of, and the burdens upon, all of the parties. A judge who believes in the popular portrait of judges as umpires, and who rejects as illegitimate calls for judicial empathy, will fail to realize that, while she thinks that she is simply calling objective balls and strikes, she is in fact unwittingly giving disproportionate weight in her doctrinal calculus to the interests of those whose perspectives come most naturally to her. By contrast, a judge who has a talent for empathy and makes a conscious effort to empathize with all parties will not subconsciously undervalue the interests of those whose perspectives she does not instinctively appreciate. As such, far from being the enemy of judicial neutrality, empathy is in fact necessary to impartial judging

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

Notice-and-Comment Judicial Decisionmaking

Executive branch agencies typically use a process of notice-and-comment to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these concerns, and could also help to constrain judges to follow the rule of law and to improve the legitimacy of the judicial process