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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Perils of Originalism: Notes from Zivotofsky II
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Sunday, November 22, 2015
The Perils of Originalism: Notes from Zivotofsky II
Richard Primus
One of the important and well-known problems with originalism is that even smart judges rarely have the historical knowledge and training that is necessary for interpreting and drawing conclusions from the world of prior centuries. A method of judicial decisionmaking ought to be one that judicial personnel can apply responsibly in practice. So even if some form of originalism made sense as a matter of ideal jurisprudential theory, that form of originalism would be a poor choice of method for an actual judiciary if the judges turned out to be unable to operationalize it. (Reading the minds of witnesses through the magic of Legilmency would be an excellent way for district judges to do credibility assessments if the judges had the skills of Severus Snape. Lacking the capacity to perform magic, judges probably shouldn’t try to do things that way.)
Many
thoughtful originalists acknowledge that history can be messy, that historical
interpretation is often difficult, and that sometimes historical sources yield
no answer to a now-pending question—but that we should not throw out a whole
method for being imperfect and that the difficulties with getting history right
should not be overstated. This rejoinder
often sounds reasonable enough. So it is
important to point out, on a regular basis, how flagrantly awful even the most
respected and prominent originalists can be at rendering their historical
evidence.
The reason why it is important
to keep making that demonstration is not, I think, because it might prompt
committed originalists to give up their preferred approach. The point is rather to show the broad mass of
constitutional lawyers—most of whom are not committed originalists but who do think
that original meanings should have an important role in constitutional
interpretation—just how flawed the practice of originalism actually is. (If you think that claims about original
meanings should be taken with a grain of salt, you might keep eating—a grain of
salt isn’t so bad for you. But you might
alter your diet if you realized that the sodium content of what you were eating
was through the roof.)
The
illustration to which I will here call attention is one that I noticed again a
few days ago while preparing to speak with students about this year’s decision
in Zivotofsky v. Kerry (“Zivotofsky II”). The majority in that case struck down §
214(d) of the Foreign Relations Authorization Act of 2013, which provides that
the passport of a U.S. citizen born in Jerusalem shall list the citizen’s place
of birth as “Israel” if the citizen so requests. Justice Scalia wrote a dissent—one that I
find cogent in most respects. In
particular, I agree with Justice Scalia that Congress has the authority to regulate
passports. But before Justice Scalia
reached the portions of his analysis arguing concretely in favor of
congressional power to enact § 214(d) in spite of the President’s contrary
preferences, he framed the big picture in a way that should make historians
gape.
Justice
Scalia wanted to make the general point that the checks and balances of our
constitutional system operate in the realm of foreign affairs and not just
domestically—that the President does not make American policy unilaterally,
even beyond the border. That’s fine. It’s even important. But to make the point, Justice Scalia’s
opening paragraph made a remarkable historical claim. The opinion began as follows: “Before this
country declared independence, the law of England entrusted the King with the
exclusive care of his kingdom's foreign affairs.” To support the proposition, Justice Scalia cited
Blackstone. And then he noted that the
People of the United States decisively broke from this tradition when they
became independent and designed the Constitution. The moral, which primes us to see see the
folly of the majority’s decision in Zivotofsky
II: an executive with unchecked foreign-affairs power is how they did things
in the bad old Empire against which we rebelled, not how we do things here.
I tend
to agree with Justice Scalia that the majority’s position in Zivotofsky is unsound. But the picture of eighteenth-century British
government that Justice Scalia offered to frame the point is fully make-believe. By the time of the Hanoverian Kings,
Parliament was thoroughly involved in foreign policy. Indeed, the Parliamentary settlement that
installed the Hanovers in the first place came with statutory limits on what
these new Monarchs would be allowed to do in the domain of foreign affairs. Through the eighteenth century, Parliamentary
Ministries approved and disapproved alliances, granted and refused foreign
subsidies, and as a practical matter authorized war and peace, to say nothing
of building the overseas Empire. George
II had little interest in that last little endeavor, being much more focused on
Europe, but the Crown’s disinterest didn’t matter much, because the Ministers
in Parliament were driving. George III,
who was more interested in the Empire than his grandfather had been, would have
been shocked to learn that he had a free hand in foreign affairs, given his constant
experience of having to deal with Parliament.
To say nothing of the consternation that news of the King’s exclusive
foreign-affairs power would have caused throughout the capitals of Europe, as
governments wondered why they were spending so much money retaining London
agents for the purpose of lobbying Parliament to make favorable foreign-affairs
policy.
How does
a Supreme Court opinion signed by three Justices open with a paragraph that asserts
a basic proposition about constitutional history and whiffs so completely? It’s hard to know for sure, but here’s a
hypothesis. Technically, in the
eighteenth century and also today, foreign-affairs powers in the United Kindgom’s
system were and are classified as matters of “royal prerogative.” Blackstone used that term at one of the pages
that Scalia’s opinion cites. Someone unfamiliar
with U.K. constitutional law might see the foreign-affairs power described as a
matter of royal prerogative and infer that things worked just as Justice Scalia
said—that the King wielded exclusive control over such things. But that inference would misunderstand the
prerogative powers. Even in 2015,
British constitutional doctrine continues provides that foreign-affairs powers
up to and including decisions on war and peace are matters of royal prerogative—they
belong, officially, to the Monarch. But
it is a matter of consensus understanding and centuries-old unbroken practice
that the Monarch exercises those powers on
the advice of her Ministers—which is a polite way of saying that the
elected leadership of Parliament asks the Monarch to do X and the Monarch duly
says “I hereby do X.” The practice of a
Monarch’s exercising the prerogative powers on the advice of his Ministers was
not as old or as complete in 1776 as it is two hundred and fifty years later,
but the basic move had already been made.
George III had more latitude than Elizabeth II has, but already
Parliament was calling a lot of shots. So
yes, Blackstone called foreign affairs a matter of royal prerogative, which
officially they were—and are, even today.
But everyone from Blackstone to John Adams to Louis XIV knew that in the
British system Parliament had a lot of actual power over foreign affairs.
I don’t
think that judges—even Supreme Court Justices—should be responsible to know how
the British constitution worked more than two hundred years ago. The world is full of specialized knowledge,
and nobody can know everything, and federal judges have enough to keep track of
without having to be historians, too. So
my complaint isn’t that Justice Scalia (or the two other Justices who joined
him) should have a better understanding of eighteenth-century British
constitutional law. Instead, the point
is that we should all expect that even our leading judges will not know what they would need to know in
order to interpret eighteenth-century materials—even, in this case, when the
materials are something familiar like Blackstone, and even when the subject
matter is a pretty basic fact about the constitutional law of the world in
which the Founders operated.
If a Supreme Court opinion by a
leading originalist in as prominent a case as Zivotofsky II can open with an entire paragraph of historical
fantasy, what hope is there for the practice of originalism in the courts more
broadly? We should not think “Look, sometimes
it won’t work out, but most of the time it’s fine.” We should think “Originalist interpretations
are liable to be shot through with misunderstanding even under what seem like
favorable conditions.”
Posted 7:44 PM by Richard Primus [link]
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