Wednesday, July 11, 2007

Clarence Thomas's Originalism


Justice Clarence Thomas is well known for his claim that we should be faithful to the Constitution's original meaning. This often leads him to results contrary with the rest of his fellow Justices, including Justice Scalia, who also claims to be an originalist, but of the "faint-hearted" variety.

But there is more than one version of originalism. Original meaning originalism asks about the meaning of the words in constitutional text to the average person at the time of adoption. Original expected application asks how people at the time of adoption would have understood the text would be applied. Original understanding is usually some form of expectations based originalism-- it asks how the text's meaning and its likely application would have been generally understood at the time of adoption. Original intention asks what some relevant group of persons at the time of adoption intended the law to be or how it should be applied.

Thomas portrays himself as an original meaning originalist. However, I have argued that many original meaning originalists actually conflate original meaning with original expected application. That is, they say they are focused on original meaning, but in fact they focus on original expected applications to decide what the principles underlying the text are and how they should be applied. I also argue that living constitutionalists often make the same mistake-- they too often assume that to be an originalist means you must accept the original expected application.

The recent case of Morse v. Frederick (the Bong Hits 4 Jesus case) offers an example of this conflation in Thomas's jurisprudence. Thomas often slides back and forth between arguments from original meaning and original application. He does not clearly distinguish why he does so. Here is his concurrence in Morse, explaining why he thinks public school students have no rights under the First Amendment.

The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, "there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); see also Cox v. Louisiana, 379 U.S. 536, 554, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965). In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800's. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common. W. Reese, America's Public Schools: From the Common School to "No Child Left Behind" 11-12 (2005) (hereinafter Reese). If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them. n1 They did not.

n1. Although the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment, most state constitutions included free-speech guarantees during the period when public education expanded. E.g., Cal. Const., Art. I, § 9 (1849); Conn. Const., Art. I, § 5 (1818); Ind. Const., Art. I, § 9 (1816).

Note that Thomas does not offer us an argument about the original meaning of the first amendment. Instead he asks how people understood the amendment would be applied to public schools in 1789. Since the First Amendment didn't even apply to the states in 1789, it's somewhat hard to figure that out. So instead Thomas turns to how people expected analogous state provisions (which may or may not have had identical language) would have been applied, including examples from the early to middle 19th century.

Thomas's argument is that the First Amendment was not intended to change the common law idea of in loco parentis, the notion that schools had the right to enforce rules and discipline against students in place of the parents. (The notion that the schools stood in place of the parent, of course, could also be used to justify the use of corporal punishment against an unruly student.)

My view is that all this history is quite interesting but mostly beside the point in deciding a case like Morse. We do not live in a world with the same assumptions about the power of school officials over their students, just as we do not think that the original understanding of libel, profanity, sexuality explicit speech or commercial speech should apply either. Our modern doctrines are consistent with original meaning of "the freedom of speech" but not necessarily with the original expected application. Thomas's reliance on the original understanding has all of the familiar difficulties of expectations based originalism. If we take it seriously throughout the corpus of constitutional doctrine, it leads to results that would be politically embarrassing.

Not surprisingly, Thomas often invokes his concepts of originalism selectively, pulling them out when they buttress results he likes and saying nothing about originalism when it would lead to results he does not like. For example, Thomas does not talk about the original meaning or the original understanding of the First Amendment in many First Amendment cases where he would prefer a more libertarian result, for example, in case involving abortion protesters, commercial speech and campaign finance. Perhaps one could offer either original meaning or original understanding arguments for these cases. (Although original understanding, which he uses in Morse, might be somewhat more difficult). But Thomas does not even bother to try.

For years people have complained that Thomas has not taken seriously the evidence of the Reconstruction era Congress on issues of colorblindness. The Congress that passed the Fourteenth Amendment did not adhere to the principle of colorblindness. They adhered to the principle of civil equality. The language of the Fourteenth Amendment reflects this. It does not mention color or race, but it does talk about the privileges or immunities of citizens of the United States. The reason for this is that in 1866 the Congress wanted something more and less than colorblindness. They did not want to give blacks the vote. And they also passed legislation that gave benefits to "colored" persons. (For more on this history, see here, here and here.)

In Parents Involved, Thomas finally refers to this history obliquely in a footnote in his concurrence. He says

The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. Post, at 28–29. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 28 (citing Slaughter-House Cases, 16 Wall. 36, 71–72 (1873)). What the dissent fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution.
It's a nice try, but it won't work. Congressional legislation during this period was directed not only at recently freed slaves, but also at free blacks whose families may have been free for a generation or more. The Reconstruction Congress responded to widespread societal discrimination against blacks-- something that the plurality in Parents Involved would forbid in the name of the same Fourteenth Amendment that the Reconstruction Congress passed. Moreover, the statutes were inconsistent with the current Court's precedents in other ways-- they were not narrowly tailored to remedy only previous acts of discrimination by Congress or by state actors.

Even so, I'm happy that Thomas is starting to come to terms, even in the smallest of ways, with the history of the Reconstruction Amendments. He has offered his opinions repeatedly about what the Fourteenth Amendment means without giving much evidence that he has studied the Amendment's actual history carefully. In doing so, he is not engaged in originalism. He is engaged in bad originalism.


Professor Balkin: But there is more than one version of originalism...

Respectfully, that's totally missing the larger context. When a Thomas or a Scalia invokes "originalism" or "majoritarianism" or whatever pet terms they're tossing about du jour, it isn't from any desire to accurately portray their positions, but rather to foreclose analysis in the minds of as many as can be swayed. The single greatest error and weakness of progressives is this continued insistence on treating rhetoric as reasoning in good faith. Treating ill-will enemies as good-faith players is a dangerous mistake.

Jack: You might have added to your list Wisconsin Right to Life: What are the odds that *any* of the variants of originalism would have given corporations any First Amendment rights, let alone the right to use treasury funds rather than designated, segegrated funds for certain expressive activities?

Until the 1830s, public mass education was not even an issue -- of course, Thomas and our follow originalists are often forced to "hypothetically" assume later-developed constructs, such as compulsory schooling, were in place at the time and determine how the rules would apply -- from Wikipedia:

Education reformers such as Horace Mann, helped jump start the common school movement. In 1837, Mann became the first Secretary of the Board of Education for Massachusetts. Mann was at the forefront in promoting the institution of common schools. His influence on education in Massachusetts soon spread to the U.S. as a whole. Not until 1870, however, were all states provided free elementary schooling.

Professor Balkin:

[T]here is more than one version of originalism. Original meaning originalism asks about the meaning of the words in constitutional text to the average person at the time of adoption. Original expected application asks how people at the time of adoption would have understood the text would be applied....

Thomas portrays himself as an original meaning originalist. However, I have argued that many original meaning originalists actually conflate original meaning with original expected application. That is, they say they are focused on original meaning, but in fact they focus on original expected applications to decide what the principles underlying the text are and how they should be applied.

What is the basis for the distinction between your categories of original meaning and original expected application?

Both categories appear to be text based with the People at the time of the ratification defining the meaning of the text.

Are you arguing that the People at the time of the ratification had different definitions for the text standing alone as opposed to when it was applied to a set of facts?

Your point appears to me to be a distinction without a real difference.

Thank you in advance for any guidance you could provide here.

Dear Bart:

I've written a couple of articles on this distinction, which I've linked to above. You can also find them here and here. I've argued that although original expected application is not a plausible theory of constitutional interpretation, original meaning originalism is, and, in fact, it is the best approach.

Not until 1870, however, were all states provided free elementary schooling.

It's interesting to think that evidence from the 1870s qualifies as an indicator of original application 100 years previously. Indeed, Thomas cited one case from 1915 in support of his view (a case which, btw, didn't even raise a free speech issue). This form of "originalism" sure looks a lot like living constitutionalism.

Professor Balkin:

Thank you for the links. I look forward to reading your work.

Not at all, Mr. Field -- as I noted, Thomas and follow originalists "hypothetically" assumed that such a later-developed construct as compulsory schooling were in place and then simply determine how the rules would have applied back then -- what am I not explaining clearly?

Thomas and follow originalists "hypothetically" assumed that such a later-developed construct as compulsory schooling were in place and then simply determine how the rules would have applied back then -- what am I not explaining clearly?

I think you explained exactly what Thomas did. It just makes no sense whatsoever. "Nunc pro tunc" is not a form of originalism, as far as I know.

On originalism, and having done battle with Scalia on this when he visited my law school, it always baffles me when the Framers and those who voted for the Constitution are termed "the people". Scalia remarked to me that "the People adopted it". I was baffled by his comment as he is an educated person who is clearly aware of the circumstances of the United States at that time. I can live with the Constitution being legitimized by the limited process of approval in place at that time - but going beyond that to then say that the views on the text of that narrow group at the time are all that is to be looked at just baffles me. I recognize we can read them for meaning and they may have special weight in letting us know what they were struggling about. But, those alive even today who read the struggles and think in fresh ways about those issues help inform my understanding. The death of the last Framer appears to be a pretty arbitrary date at which we should stop looking at ideas on the text.

I mean it is like I am not permitted to look at Madison and say - gee this guy who didn't free his slaves when he died is not to me the be all and end all. He is of interest as far as he goes but I think that Frederick Douglass might have said something 80 years later that resonates more powerfully.

On the colorblind Constitution, it seems to me that this is a peculiarly American discussion of our relationship with the peculiar institution. As Randy Barnett has highlighted, the interstate commerce clause and other things were put in place precisely to keep the Federal Government out of the slave trade. Then there are those who say that slaves were not only blacks so the Constitution is colorblind and it just seems to me that it is an effort to mask what was patently clear - that enslavement of blacks was a motor of the United States and a source of great wealth and those with power were willing to preserve it in the Constitution. One of those persons was Barbary my ancestor born in 1787 and sold into slavery in 1800. Draining the Constitution of that significant part of the American experience seems very suspect to me. Is it so hard to recognize that the document enshrined an enormous evil and we fought a civil war to undo that?

As one of my students said, to speak of colorblind constitution is to make me invisible.

I understand that Thomas will be putting out a book now on what he thinks on all things affirmative action and all that. I will take a look at it.

It just seems that originalism alone just like any other system alone is a damaged form of analysis. Each approach is a lens. Now some might say that a "looking at everything" approach is a damaged approach also and that all approaches are equally and on and on. I agree we can end up in a cycle - but it seems bizarre that we would limit ourselves in such a manner not looking forward or backward from that time.

The Constitution is not some document that was handed to us by some higher being. It is the work of a few persons. We read it and we interpret it to best of our ability. No need for blinkers - especially as the Framers excluded so many from being "People" who might have a word to say.


Benjamin Davis: I was baffled by [Supreme Court Justice Scalia's] comment as he is an educated person who is clearly aware of the circumstances of the United States at that time.

Ben, this really ties in with my original comment, that the greatest error progressives are making, day in and day out, is to treat a Scalia or a Thomas or a Hannity or an O'Reilly as a good-faith interlocutor. I invite you to take a look at this Scalia inspired rant I wrote in 2005 after the McCreary decision came down. While it's a little foamy for this venue, I think you will appreciate the points made, and how they serve to highlight the larger issue of accurately assessing the difference between a fellow citizen with whom we legitimately disagree versus a partisan hack looking only to gore your ox. It's vital we adopt different methods for the different categories.

(Not that I mean to suggest you could do much in a forum with a Supreme Court Justice, demands of respect for office and decorum being what they are. Wish I'd been there...)

(Would follow up with a private inquiry about where you teach &c but your blogger profile has no contact info. If you're willing you can reach me at beau AT oblios-cap DOT com)

I still do not understand how "originalism" avoids the intentional fallacy. Moreover, since hermeneutics is not taught in law schools, whence cometh these "literary theories?" Granted, our Constitution and Laws are written in a language, English to be precise, but most jurists don't have a clue about linguistic uses, sense, or reference. Since most law courses are taught outside their historical context, it would seem that all these theories are simply excuses to "mean what we say."

At some point, we have to avoid all this casuistry. We have to determine whether our linguistic use is essentialist or nominalist. We have to understand a word's etymology, it evolutionary use, its changing senses, different contexts, and evolving applications. Not the Richard Rorty relativist nonsense, much less the postmodernist bullshit (John Searle's "postmodernism gives bullshit a bad name"). None of the psycho-babble, either.

Odd, that lawyers do not study any language courses nor are they required to take logic, deductive, inductive, or fallacious -- esp. since our Constitution, Laws, and their applications would seem to require such "basics." Obviously, anyone who appeals to "originalism" has not studied hermeneutics, either.

It's not unlike a Doctor of Medicine who studies pharmacology, surgery, differential diagnoses, etc., but never studies human anatomy, physiology, and biochemistry.

No wonder we get the decisions we get. Jurists lack logic, linguistics, commit fallacies, cannot distinguish between sense and reference, much less use, and praise Richard Rorty as one of the three greatest philosophers of all time. Breathtakingly inane. But it does explain.

The Gay Species: ...whence cometh these "literary theories?"

Y'just don't see "hermeneutics" often enough in conversation these days. ;)

Thoughts: While I wouldn't expect, say, a Charles or a Bart to competently diagram a simple S-V-O like "Charles admires Bart," I think it's fair to assume the head of the Yale Information Society Project and author of works such as Cultural Software: A Theory of Ideology and The Laws of Change: I Ching and the Philosophy of Life holds himself to a higher standard. Don't know about you, but I'm here to rub ideological elbows with our hosts much more than for the guilty pleasure of spanking their more obnoxious guests.

(btw: If your blog or profile list your email I've failed to find it. Would love to carry on this conversation off-blog...)

Professor Balkin,

Isn't "meaning" defined by the set of all applications consistent with that meaning? Hence, if we are to maintain the original meaning, we must also maintain the original applications, albeit, in their original context.

Thus, expected applications can be informative, though not necessarily limiting, on the actual meaning encoded in law.

Most of your examples related to free speech seem to have an inherently cultural component to them (e.g. profanity). Is it fair to conclude that your actual focus regarding the difference between "meaning" and "expected application" is the degree to which codified principles are originally intended or expected to be relative to the changing culture?

Prof. Balkin,

If Justice Thomas had attempted an argument about the original meaning of the first amendment, he might have had to acknowledge that the public schools of the 1800s would have abused the religious rights of himself and the four other Catholics in the Morse v. Frederick majority. But I may be doing Thomas an injustice -- perhaps he would see no constitutional harm in being forced to recite Protestant prayers. There were no public schools at the Founding, so we don't know what the Founders thought of schoolchildren's rights, but we have a fair amount of evidence regarding what many of them thought of Catholics, and how they and their fellow Protestants put those feelings into action as public policy.


I can't speak for Professor Balkin, but I suppose the problem is this.

The Fourteenth Amendment, which applied the First Amendment to the states, was adopted in the 1860's. Thus, the relevant originalism is what the original meaning was at the time of the 1860's, not the 1780's. You can't meaningfully posit how the First Amendment was supposed to apply to a state-regulated public school when the amendment wasn't intended to deal with state-operated entities at all and the federal government wasn't operating any public schools.

But, Thomas wants to make his point using cases from the mid-19th Century, before the 14th Amendment was adopted. So he looks at what states were doing back then with their own constitutions and extrapolates that this was the expected application of the 14th Amendment.

That may or may not be the case, but once you do that, you are shifting interpretation strategies. The MEANING of the 14th Amendment was to require state governments to respect, among other things, rights of free speech, and you would need to look at what free speech meant to the nation as a whole as of the 1860's to determine this. What free speech meant in particular states 30 years earlier isn't particularly relevant.

So Thomas isn't really adopting a consistent interpretative strategy here.

I think your distinction well taken but I am somewhat chagrined by the rather nasty and churlish postings of your blogging entourage. Given the difficult task of weighing the value of following originalism-consistent results with stare decisis, one cannot expect a justice's votes perfectly to coincide with the dictates of an originalist analysis. Further, judges are human beings and as such are susceptible to mistakes, even originalist mistakes (gasp!), but that is no reason to reject originalism altogether. And just what precisely is being offered on the other side? Justice Breyer's purposivism? Some redivivus version of Justice Douglas's penumbral emanations? Egads! If we do not wish to be ruled by some nine-headed Caesar giving its collective thumbs up or thumbs done to whatever passes before it (thank you Nino), then I cannot imagine a better technique to avoiding that lamentable result than originalism. Unless we wish to dispense with democracy.

Kevin: "Isn't 'meaning' defined by the set of all applications consistent with that meaning? Hence, if we are to maintain the original meaning, we must also maintain the original applications, albeit, in their original context."

I would define meaning as a function from possible worlds to applications. Two words can have the same application in this world, but if they have different applications in some possible world, then they have different meanings.

The reason the framers can be wrong about the application of their provision, even if they know the meaning of their words, is that original applications might depend on facts about which the framers were wrong.

For more, see here.

I haven't looked carefully at Morse yet, but obviously original expected applications are some indication of original meaning. Absent a showing of error by the framers about the application-yielding facts, I'd assume they were right about the application too. In the bit quoted in the post, Thomas only says the history "suggests" the conclusion.


Thanks for your comment and the link to your impressive paper on the subject.

I think we basically agree. I did not mean to imply any restrictions to particular contexts or worlds in my definition. I also agree that there are many reasons why conflicts between meaning and its applications can exist, though I think such data points should be statistical outliers.

I haven't studied the particulars of this case very much either, but my questions of Prof. Balkin were primarily meant to probe his general philosophy of "original expected applications" versus "original meaning".

At first glance, it appears that he defines "original expected applications" rather narrowly but then equates it with traditional originalism, and then dubs living constitutionalism to be "original meaning" because it better explains how constitutional interpretation has actually operated in practice.

I'm interested in your take on his philosophy, since I assume I'm missing something.

I need to read Balkin's reply more carefully before I comment on his theory in general, but his assessment of the current state of constitutional theory seems the weakest theoretical part of his paper, as Berman points out. So I don't think his equating original expected applications with traditional originalism is right. (I think the application to abortion has some problems too.) In general I think "text and principle" doesn't say enough about the relationship between text and principle. Which is binding when, and why? I think the textually-expressed principle--that is, the sense historically expressed by the constitutional language--is interpretively paramount. To the extent Balkin gives himself more wiggle room than that, he's liable to err. But I need to read the reply carefully before I say more.

Thanks, Chris.

Having read the concurrence now, I don't think Balkin's criticism is on point. Thomas seems to acknowledge that the passage of time could make a difference to the constitutional outcome. "To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech." I read that as a challenge to those who disagree to explain exactly what it is about the changed situation between then and now that requires a different result--as I would put it, exactly what changes in reference-yielding facts are supposedly at work.

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