Originalism after Heller:

My point yesterday that we're all originalists after Heller is more limited than Orin understandably takes it to be. Orin is right that none of the justices is completely faithful to originalist approaches to constitutional interpretation. Justice Thomas comes the closest, but even he strays. As I noted in my post yesterday, and as Orin comments, non-originalist precedents are a particular barrier for many originalists. That's especially so for the "faint-hearted" kind who think there is some independent value in respecting precedent.

What's interesting about Heller is precisely that it called on the justices to make decisions about a matter of important constitutional text in the absence of controlling precedent, that is, it called on them to write on a clean slate. There could be no retreat to precedents (though Stevens did make some effort at this). So what could be the basis for decision? Where would the justices turn as a matter of first principles?

Orin answers: "In that setting, it seems inevitable that both sides would focus a lot on originalist claims. . . You would expect the legal opinions to battle over the only available legal ground to fight." But was it really so inevitable? Was originalism really the only available legal ground?

That Orin and I think it obvious and inevitable that the justices should as a matter of interpretive principle concentrate so heavily on what commentators, dictionaries and other usages of the 18th century had to say about phrases like "keep arms," "bear arms," "the people," and the "militia," may only indicate that he and I have bought very much into this method. But the fact that not just Orin and I, but also every justice on the Court, in this rare and pristine constitutional moment, grasped for originalism as at least a cover for their views indicates that something more profound has happened in our constitutional culture.

Not so long ago, perhaps as recently as 20 years ago, there would have been a large and dominant body of opinion in the academy and in the judiciary for the view that such sources were stultifying, antiquated, crabbed, wooden, and anachronistic. Why care what these dead men thought when there has been so much empirical learning about gun-control policy, about its effects on crime, accidents, and death rates?

Originalism would not have been seen as the only available ground, or even the main ground, on which to fight. Yes, the justices might have made some sweeping observations about the Declaration of Independence, or about antiquated musket-bearing militia members. That's characteristic of the opinions of the era. But would we really have had the extensive and detailed originalist engagement we saw between Scalia and Stevens yesterday? I suspect, instead, that the majority and dissenting opinions of a Supreme Court from the 1940s to the 1980s in this same case would have looked much more like Justice Breyer's opinion. Some justices would have agreed with his conclusions and cited studies about the need for these laws, some would not have agreed and would have cited counter-studies and statistics, and others would simply have urged deference to the democratic process.

I am not necessarily saying that the justices did especially well in their deployment of originalist sources yesterday. Sandy Levinson, for one, thinks the originalism in the Heller opinions was very shoddy "law-office history." (See his posts here and especially here) Based on my limited reading of the matter, I agree with Orin that Justice Scalia got the better of the argument, or at least that he reached the better originalist conclusion. But others are far more qualified to make judgments about the history of the Second Amendment.

And it is certainly true, as Orin suggests, that the justices will issue many more opinions in the coming years in which originalism is barely mentioned, as in the campaign-speech decision yesterday. But this doesn't really go to my point about the ascendance of originalism, since in many other constitutional contexts we do have an overlay of thick constitutional law (precedents) that even originalists feel they must grapple with. The First Amendment, where precedent is especially well developed, is the most notorious example of this. None of the justices is really an originalist when it comes to the freedom of speech. Aside from the beautiful and stirring rhetoric of Justices Holmes and Brandeis about the supposed libertarian speech ideals of "those who fought for our independence," originalism has played no role to speak of in the development of free-speech doctrine. The ascendance of originalism isn't likely to change that at this late date.

I don't claim that we're all good originalists, or that we're consistent originalists, or that we're originalists forsaking all others. I am not even saying that the dissenting justices really believe in originalism as a methodology. I don't know whether they do. But even if they don't, the fact that the legal culture has developed to the point where they believe it must be engaged in a landmark case, and indeed must be a focus of a lengthy dissenting opinion in which they all join, is itself significant.

This originalist to-and-fro happens more and more across many constitutional contexts, even where there are precedents and policy considerations on point. Yesterday was simply the most crystalline example of this trend toward respect for a methodology that in living memory was greeted with guffaws. That's really all I mean when I say, "We're all originalists now."

Related Posts (on one page):

  1. Originalism after Heller:
  2. What Does Heller Say About Originalism?: