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.” 

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