Thursday, October 18, 2018

Originalism as Performed by the Supreme Court

Mark Tushnet

Eric Segall has an interesting post on "Originalism in the Classroom?" I thought it might be interesting to try to figure out how one might teach originalism in a standard doctrinal course on the First Amendment. My text is Justice Alito’s discussion of the respondent union’s “originalist defense” in the recent Janus decision. Here’s what Justice Alito says. (“Originalist defense” is a quotation from Justice Alito. It should be clear when I’m quoting from the opinion and when I'm using scare quotes around my own formulations.)

(1) “[W]e doubt that the Union—or its members—actually want us to hold that public employees have ‘no [free speech] rights.’” The reason: other unions in other cases have argued for broad First Amendment rights for public employees. How this is relevant to an originalist argument is, to say the least, unclear.

(2) “Taking away free speech protection for public employees would mean overturning decades of landmark precedent.” So, perhaps this shows that Justice Alito is a faint-hearted originalist. Strictly speaking, originalism as such shouldn’t care about the consequences of following the historical materials where they lead. But, perhaps there is some “consequences matter” constraint on originalism. The usual example is paper money. One might expect, then, a discussion of why these consequences of originalism are more significant than other consequences, for example, in Heller.

(3) “Respondents presumably want none of this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits them—to retain the part of Abood that they like. We will not engage in this halfway originalism.” The “presumably” here is a giveaway – and then “halfway originalism” is simply chutzpah.

(4) The opinion then turns to the asserted absence of “persuasive founding-era evidence that public employees were understood to lack free speech protections.” It notes that the union did identify early “restrictions on federal employees’ activities,” but says that “most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech.” Again, the “most” is a giveaway.

The opinion identifies two early actions – in 1801 and 1806 – that did involve restrictions on government employee speech. But, it continues, “those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. “ Well, not necessarily – the “at most” is a rhetorical move. Maybe the examples are illustrations of a more general principle to which the founding generation was committed. We might say the same about the "business dealings" point as well. (In a more extended treatment of First Amendment originalism, I would point out that this is how the Court’s current understanding of the First Amendment as standing for a principle against government suppression of views with which it disagrees can best be defended on originalist grounds – with particular examples used to illustrate the presence of an as-yet-unstated general principle.)

(5) “Ultimately, the Union relies, not on founding-era evidence, but on dictum from a 1983 opinion of this Court stating that, ‘[f]or most of th[e 20th] century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.’ Even on its own terms, this dictum about 20th-century views does not purport to describe how the First Amendment was understood in 1791.” This, I think, can fairly be called dishonest. It can’t be seriously contended that, from 1791 through the early part of the 20th century, there was general agreement that public employees had robust First Amendment rights, and then, all of a sudden, things changed.

 (6)  “We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees.” This is sort of a form of original-intended-applications-originalism, though exactly how it supports the conclusion that public employees were understood to have First Amendment rights is unclear. Justice Alito continues, “The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.” The attached footnote observes that “at common law, ‘collective bargaining was unlawful.’” One might infer from this, were it relevant, that of course public employees who engaged in an unlawful activity couldn’t have been thought to have First Amendment rights.

More generally, though, the “astound those who framed the Bill of Rights” argument raises one of the most general questions about originalism (which we might attach to the observation that statutes superseded the common-law rule cited in the footnote): Legal and social circumstances have changed so much from 1791 (or, strictly speaking with respect to Janus, 1868) that we can’t infer from what was generally understood then what the First Amendment should mean now. That might be a good reason for rejecting the union’s broad claim, but – as critics of originalism have regularly contended – it would also raise questions about the precise scope of the “things have changed so much” reason for looking to things other than the original understanding. (It’s an easy exercise to formulate that question with respect to Heller, for example.)

(7) Finally, “prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “‘sinful and tyrannical,’” and others expressed similar views.” The citation is to Thomas Jefferson and the Virginia Bill for Establishing Religious Freedom, and the attached footnotes refer to discussions of the religious-oath clause. Justice Alito’s “such beliefs” assimilates views about coercion with respect to religious beliefs with views about coercion with respect to political ones. That assimilation is, on its face, problematic in light of what we know generally about religion – and politics – in the founding era. At the very least, an originalist ought to present original-materials evidence that the obvious distinction was not relevant in public understandings. (Justice Alito also refers to views held by “prominent members,” though with no indication of whether those views were the same as the public understanding of the relevant terms.)

Overall, then, I would say that academic originalists ought to be embarrassed about the Janus opinion’s performance of originalism. The acerbic conclusion to Philip Kirland’s 1963 Harvard Law Review Foreword of 1963 comes to mind. Kurland referred to “the wall plaque of frontier times: ‘Don’t shoot the piano player. He’s doing his best.’ It is still possible, however, to wish that he would stick to the piano and not try to be a one-man band. It is too much to ask that he take piano lessons.”

On the other hand, working through all this does suggest to me that teaching originalism via Janus might be quite instructive. What Justice Alito’s opinion shows is that the originalist material can be, and is, manipulated in exactly the same way that precedent is manipulated – by treating specific examples as confined to their facts rather than as illustrations of a general principle (the 1801 and 1806 material), and, on the flip side, treating specific examples as illustrations of a general principle (the assimilation of religion and politics). That’s pedagogically useful – though I don’t think it’s the lesson that academic originalists would like students to learn.

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