Notice & Comment

Resisting Originalism, Even When “Done Well”, by Lisa Heinzerling

*This is the fifth 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.

In Democracy’s Chief Executive, Peter Shane skillfully exposes the partisan beginnings and baleful effects of originalism as a theory for understanding the constitutional separation of powers. This theory, he argues, has brought us an “entitled” executive branch, a weakened Congress, and super-powerful courts. Nevertheless, modeling what he calls “originalism done well,” Shane uses originalist methods to dismantle the originalist case for aggressive presidentialism. At the same time, Shane stresses that “originalism done well” is not the answer to our constitutional problems. He argues, instead, for an “adaptivist view” of the Constitution, which “values historical inquiry” but also “candidly prioritizes democratic values in resolving interpretive ambiguities.”

How can we move past originalism when the Supreme Court is dominated by originalists? Shane argues that Congress must resume robust oversight of the executive branch and that the public must insist on greater checks and balances in the structure of government. As for reforms emanating from the Court itself, he seems resigned to a long period of “originalism done well”: “Litigants challenging the executive,” he concedes, “must argue on these justices’ terms to have any hope of prevailing for their clients.”

For several reasons, although I agree with so much of what Professor Shane says in this excellent book, I don’t agree that we shouldn’t expect litigants to join the resistance to originalist constitutional theories.

First of all, conservative lawyers and activists did not wait for originalism to become acceptable to judges before they began making originalist arguments. Their project of installing originalism as the reigning theory of constitutional interpretation was a decades-long undertaking, beginning with what Professor Reva Siegel calls an “executive-branch based strategy of constitutional change” dominated by a partisan process of vetting and nominating judicial candidates. Even before this political strategy bore fruit in the form of a 6-justice conservative majority on the Supreme Court, litigants began making originalist claims, offering then-novel arguments about the ways in which the structure of contemporary government supposedly departed from the constitutional framers’ design. They did not wait for the Court to change first. Nor should today’s litigants who are trying to defend rather than deconstruct settled governmental structures and powers wait for the Court to change before they begin to resist originalist arguments.

In addition, there are long-term risks in embracing a misguided theory of interpretation, even if it supports one’s arguments in specific cases. Consider the ascendance of textualism as the reigning theory of statutory interpretation. Many lawyers in statutory cases (myself included) have chosen to offer exclusively textualist arguments to the justices because they do not want to lose any justice’s vote if they don’t have to. For many years, conservative justices have objected even to the mention of legislative purpose or legislative history, issuing separate opinions calling out and deriding such references. Their delicate ears apparently could not bear to hear such arguments, and the principal litigants in many cases obliged by downplaying them or leaving them for amicus briefs. This made textualism begin to seem like the only plausible way of approaching statutory interpretation, to the point where Justice Kagan famously announced “we’re all textualists now.” Justice Kagan took back that admission last Term, but the damage had been done: over many years, the justices had become accustomed to deciding statutory cases without having to reckon with what Congress had been trying to do or what salutary purposes would be disserved by a textualist approach. The same dynamic is now occurring with respect to the principle that courts should defer to agencies’ reasonable interpretations of the statutes they administer: once Chevron deference became anathema to the conservative justices, it disappeared from many Supreme Court advocates’ interpretive vocabulary. Litigating under the framework of “originalism done well” likewise threatens to remove other possible interpretive approaches from our constitutional vocabulary.

Most fundamentally, limiting the arguments the justices hear to those that sound in originalism extends the framing-era exclusion of the voices and histories of women and people of color from our constitutional project into the present day. The implications of the original exclusion, and of the contemporary extension of it through originalist interpretation, were painfully obvious in the Court’s Dobbs decision last Term, wiping out constitutional protections against forced childbearing. As Reva Siegel puts it, Dobbs “locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies.” Although originalists do not openly embrace the framing-era exclusion of women and people of color from the development and ratification of the Constitution, their method reenacts it today.

This reenactment of exclusion is relatively straightforward to see in the abortion context. Dobbs predicated its rejection of Roe on the history and traditions propounded by misogynists in the nineteenth century and earlier. The way in which the conservative justices’ current approach to the separation of powers reenacts the exclusion of women and people of color from framing-era deliberations is somewhat trickier to see, but no less troubling. 

By interpreting the framing-era understanding of the structural provisions of the Constitution to establish three discernibly different functions, tightly confined within the legislative, executive, and judicial institutions, the Court has justified breaking longstanding governmental arrangements and weakening governmental powers that are essential in protecting people from harms caused by other people. The Court has done so in the name of “liberty,” but by this it means only a particular and privileged strain of liberty: the freedom that comes from the government staying out of your business, not the freedom that comes from meaningful government protections against harmful human behavior. In the name of “liberty,” the conservative justices have rejected rules and structures addressing climate change, workplace safety, financial fraud, and more – without acknowledging that, in these cases, liberty was at stake on both sides of the legal issue. On one side, regulated groups wanted to go about their business unimpeded by federal law, but on the other, the broad public wanted a reasonable assurance that the government had our back in protecting us against coming to harm at other people’s hands. In favoring the former liberty over the latter in interpreting governmental structures and powers, the justices have quietly favored the interests of the modern-day counterparts of the elite, white, male, propertied participants in the constitutional framing, at the same time disfavoring the interests of the modern-day counterparts of those excluded. 

Professor Reva Siegel’s dazzling recent work on constitutional memory offers an appealing alternative. “Constitutional interpreters,” she writes, “produce constitutional memory as they make claims on the past that can guide decisions about the future.” Yet, she shows, the erasure from constitutional memory of the voices of the women who “made claims for liberty and equality in the family on which constitutional law might now draw” has been “so fundamental it passes without notice.” She asks us to imagine “how we might understand our Constitution in another generation” if, in constitutional argument, we begin to appeal “to a wider cross-section of esteemed Americans – including in our national story the voices of the disenfranchised as well as the enfranchised.” 

Siegel focuses on what such an argument might look like in the context of constitutional arguments about liberty and equality in the family, but she also touches on how it might have improved upon the male-centered analysis of federalism in United States v. Morrison (which struck down the civil rights remedy of the Violence Against Women Act). How might a more inclusive vision of constitutional memory likewise inform our understanding of the separation of powers? How might it inform our understanding of the varieties of liberty protected by decisions about government structures and powers? I believe we might find that in democratizing constitutional memory, we can complicate the narrow view of liberty the Court now embraces in developing its understanding of the separation of powers.

Lawyers and advocates who find themselves on the other side of originalist arguments might worry about moving from “originalism done well” toward a different and more inclusive approach to constitutional argument. But they should keep this in mind: the conservative justices have so far shown zero interest in originalism “done well” or in changing their presuppositions based on new historical evidence of the original understanding of constitutional provisions. Perhaps it’s time to try a different approach.

Lisa Heinzerling is the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center.

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