Can Originalism Survive the Lawlessness It Has Bred? A Prayer for a Stronger and Wiser Theory of Interpretation, by Victoria Nourse
*This is the third post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.
Democracy’s Chief Executive is a wonderful antidote to the strange affection many have for the “unitary” executive, including our present Supreme Court. Peter Shane’s new book is masterful, beautifully—and lucidly—written, full of deep research and sensible answers to traditional questions about executive power. It should be a must-read for all who care about presidential power or the separation of powers. The book is careful and probing in providing the “other side” to what Shane calls “unilateralist” arguments for Presidential power, walking us through loads of history and modern reality to counter those academics and lawyers and Presidents who imagine that our President should be a King.
More importantly, Shane’s book is a must-read for those, like me, who are planning for a world after originalism. If Saturday Night Live did not convince you in spoofing the Supreme Court’s abortion decision, by taking the world back to the 13th century with plague and awful haircuts, then the reign of King Trump should make more people pause about originalism. Shane’s work shows in crystal clear detail how ideas can move from political circles and legal societies into the Supreme Court and then circle back into the White House Counsel’s office. Shane explains how, in the 1980s, the Reagan Justice Department promoted a new but backward-looking approach toward constitutional interpretation with a few memos and speeches. Decades later, that had metastasized to justify a boatload of lawyers and even judges adopting theories about a king-like president that would have made the World War II generation ashamed. Shane helps us to see what seems so strange: how a philosophy of law so focused on the “rule of law” (originalism/textualism) can become the precisely opposite, the legitimation of lawlessness. Strange, but true: a bookish affection for linguistic precision (original public meaning) turned into an insurrection as Trump “parroted his lawyers’ advice. . . : ‘Article II allows me to do whatever I want.’” (Shane, p. 25).
I am often told that interpretation is epiphenomenal, but interpretation should matter if it produces violence. It should really matter if it helped to bring the most important democracy in the world to its knees. And, as Shane’s book shows, originalism mattered to Trump’s theory of his king-like presidency. If everyone in the White House counsel’s office had resigned—long, long, long before the insurrection—even Trump knew that he would be in trouble with his voters. But the lawyers didn’t resign. If the great Justice Scalia had said that the President had “all” executive power (even in a dissent), then he had “all” executive power, and the White House lawyers could repeat that to the President. Of course, the word “all” is not in Article II of the constitution; Justice Scalia added that touch. The Supreme Court has stopped using the word “all,” today, perhaps because they recognize that it can be deployed rather aggressively outside the halls of the Marble Palace. But the Court continues to hew to the unitary executive theory in removal cases and has taken to talking about the President “alone.” As Shane nicely notes, “alone” cannot be true either. The Constitution does not say “alone,” and provides for “executive departments” in the plural. And who creates those departments? That is for Congress; if, as Shane explains, the Founders really wanted to make the President into an executive potentate, they would have allowed him to create his own offices, but it does not. By focusing on Article II’s first words, unitary executivists forget what comes before Article II. The President’s first mention in the Constitution gives him legislative power (the veto is in Article I, section 7). Long before the “unitary” executive appears, the very plural Congress has been given the power to make all laws necessary for the “[e]xecution” of Congress’s powers and “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, sec. 8, cl. 18.
The problem, of course, is whether there is an alternative theory to this strange textual detextualization (yes, the irony of original public meaning theory is that it is anti-textual since it regularly takes words out of context). As my colleague Randy Barnett frequently says, you cannot beat a theory without a theory. Shane’s title “Democracy’s Chief Executive” is a step in the right direction for it situates the President within a larger constitutional system. I have recently taken to using the term “Democracy’s Constitution” because it helps us to see that courts are only part of a much larger system, a term inspired by my coauthor Bill Eskridge, as well as some work by Reva Siegel and Bob Post. Today’s Supreme Court imagines itself at the center of the Constitutional universe, when it is but a part of that system. So, too, did the former occupant Trump imagine himself as the Constitution’s epicenter. Neither part is the whole. That is the first step in seeing that any legal theory of the Presidency cannot start by decontextualizing the President from the rest of the Constitution or hang his power on a single decontextualized word like “executive” (whatever that means). Unfortunately, too many in the legal academy, both liberal and conservative presidentialists, make this error. As Shane understands, we have a system that is one of “checks and balances,” meaning that it is more than the sum of its parts, it is their interactions that one must see.
From this wise refusal to indulge the fallacy of composition, Shane’s prescriptions fall into well-trodden paths. Shane offers an “adaptive” constitutional system. That’s not too far from all the adjectives that liberals like such as “evolving” or “pluralist” or “functional.” But if I were President Trump, I would simply claim to adopt an “adaptive” approach. Recently, I was debating Philip Hamburger on the anti-delegation doctrine and he proudly decided, at least momentarily, to become a “living constitutionalist” if that meant Congress could not delegate legislative power to the executive branch. In response, I said (a bit too cheekily) that “living constitutionalism” is the worst slogan ever devised other than “defund the police.” Slogans should actually describe the underlying policy. “Living constitutionalism” has meant many things; in the 1940s, it meant judicial restraint. When David Strauss wrote about a “living constitution,” he meant Burkean common law precedentialism. He did not mean “make it up as you go.” The truth about originalism is that it was created, as Adrian Vermuele has recently written, to disrupt, to use text to overturn precedent. If “living constitutionalism” means to follow precedent, that’s fine. But that is not how the average citizen hears the term at their kitchen table in Iowa. Calling the Constitution ”living,” or “evolving” or even “dynamic,” carries baggage for the average citizen of this country, baggage that is not eliminated by using the word “adaptive,” because in highly unstable times it suggests that the world should shift without telling anyone how it should shift.
It is time for liberals to give up on adjectives like “living” and “updating” and “adapting” and “pluralistic” as far as the Constitution goes. Liberal functionalism is just as capable of creating a unilateral President in my view as is formalism, because both are largely devoid of limiting principles (as I wrote in 1995 and in three articles thereafter). We have a separation of voters and institutions and persons, not functions or parties (something I have described at length elsewhere as have Professors Matthew Stephenson and Jide Nzelibe). One of the only things we know about the separation of powers is that elected officials have different constituencies and those constituencies give them relative incentives to favor their own constituencies through their own institutions. Liberal academics describe the separation of powers as a set of veto points, but veto points in the case of a tyrant may be just as easily be called freedom points. Our system allows people many places to voice their opinions to exercise political power; they were not limited to a King who had, in fact, bought his Parliament. They had the House and the Senate and the States and the President, and each had its independent fiduciary duty of representation. Of course, there are plenty of negative side-effects to this arrangement, including the fact that it is incredibly hard to get things done, but in theory it should make it relatively harder (emphasis on relative to one with fewer hurdles for collective action) for the people to fall for a dictator and for the dictator to govern.
A wise constitution is one capable of learning from its mistakes and its successes. A strong constitution is one that takes all strands of argument—precedent and text and context—together because cables are stronger than chains. Let us pray that the populace, deranged by pandemic isolation, and bamboozled by masses of misinformation, will heal itself. For all those in the liberal legal academy who detest the separation of powers, as just a barrier to policy making, remember the Trump presidency. Remember that an insurrection can be, as Nancy Pelosi said, an “epiphany.” We can learn. And history shows that the American people have learned from their constitutional mistakes. The great problem with originalism is that it only cares if words are fixed in 1787 or 1868, and thus asks us to defy physics, requiring us to time-travel backwards, unlearning the lessons we once learned. Originalism denies the 150 most eventful years in American history, from the labor movement to World Wars to Jim Crow and women’s liberation. But our law and our lives do not. So, yes, Professor Shane, thank you for documenting a seminal point in the history of the separation of powers, and the abuse of presidential power. For, yes, it is “Democracy’s Chief Executive” and “Democracy’s Constitution.” If we can keep it. And, that, is ultimately, as the Constitution decrees, and at the moment that I write, in the hands of the voters.
Victoria Nourse is Whitworth Professor of Law at Georgetown University Law Center.