NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we explore the method and purpose of Originalism. Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and Values at University of Toledo College of Law. Professor Strang writes and teaches about Originalism, Constitutional Law, Property, and religion and the First Amendment. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Originalism is now considered a serious methodology for judges and Constitutional scholars. It wasn’t always well known or remotely popular. How did Originalism develop and rise to prominence in recent years? LEE STRANG: When I was a law student in the late nineties and early two thousands, there were a few articles on originalism, mostly criticizing it. There were a few books that talked about originalism, mostly criticizing it. And my interest in originalism was as a young American growing up, I heard lots of debates about what the constitution meant on a variety of issues, gun rights, gun control, right to choose, pro-life, et cetera. And I wanted to ascertain for myself what is the right way to interpret our constitution? And then what are the answers that our constitution gives on those and other important issues. And since that time, originalism has become probably the dominant theory of interpretation in the United States, that when you look at the recent Supreme Court justice nominations, all of the recent Supreme Court justices have identified themselves as originalists. When you look at lower federal court judges, many of them are using originalism explicitly in their interpretations and in their opinions, a number of states Supreme Courts are also talking about in utilizing originalism. And in the legal academy, there's really been a flowering of legal scholarship over the last 20 years that there are numerous books, numerous arguments, numerous conferences, numerous centers that talk about, describe, evaluate, criticize originalism. So originalism has really become a wonderful theory. I think the best example or the best instance, a piece of evidence that originalism has kind of arrived as what used to be kind of a quirky academic theory to becoming a mainstream theory of interpretation is during the confirmation process for then Judge Gorsuch, there was an article by Cosmopolitan Magazine and the article had on this page, a student sent it to me, that it said, originalism is, and then spelled out BS. And I thought, if a magazine like Cosmo, which typically doesn't comment on theories of interpretation is talking about originalism, then you know you've come a long way baby. But at the same time, what I want to say is that originalism success is contingent. It's a contingent phenomenon, it's contingent on the political success of different political parties. So President Reagan, when he was in the White House, he intentionally identified administrators who had intentionally hired and advocated for a position on constitutional interpretation in early version of originalism, they identified and appointed judges and justices who were open to an amenable, to originalism. So the political success of Ronald Reagan, the political success of George W. Bush and then more recently, President Trump have been important contributors, contingent contributors, but important none the less to the success as a practical theory of interpretation of originalism. And that very same contingency could continue or it could be undermined. But I think the fact that Americans are continually drawn to originalism, not just as an academic theory, but as Americans who are wanting to be faithful to their written constitution suggests that there's something deeply baked into the American character and American relationship to the constitution. And in fact, there's survey data that describes American's attitudes towards how judges should interpret the constitution. And the survey data, surveys are subject to criticism, of course, but the survey data suggests that a significant majority of Americans believe that the original meaning or originalism should either be the dominant way of interpreting or at least an important way of interpreting the constitution. And I don't see that sociological fact is going away anytime in the future. And I think it's that sociological fact, that widespread view by many Americans that originalism is important or the most important way of interpretation that explains not just why judges appointed by President Trump or President George W. Bush or President Reagan, say that they follow originalism. But judges appointed by, for example, President Obama. So then nominee Elena Kagan famously or in some people's eyes infamously said that we're all originalists now. And there are a good faith interpretation is that nominee Kagan believed that, a more cynical interpretation is that, she believed that she had to say that for the sociological legitimacy of her nomination and confirmation to the Supreme Court, but either way shows the influence of the idea of originalism on a broad base and even in elite circles. PUBLIUS: What are some examples of how Originalism has gotten more nuanced as it has become more popular? LEE STRANG: Originalist theory, as it's developed, especially since the year 2000, has identified two different ways in which originalism operates. The normal way, the paradigmatic way, the focal case of originalism is what we call constitutional interpretation. It's where there's a case, there's an issue, and there's a constitutional question about the meaning of the Constitution and the Constitution's original meaning after having looked at all the different sources there, it provides a determinant answer to a legal question. Does Congress have the power to regulate the commercial transportation of goods on trains across state lines? The answer is clearly and determinatively yes, but that's not always how originalism operates. There's another mode of operation that's called construction, and there's a lot of debate in originalism over whether construction exists. If so, what are its characteristics? And if so, what are its implications? So let me try and give an ecumenical account of construction. All originalists who think that there is construction agree that construction includes situations when the Constitution's original meaning is under-determinant, that it doesn't provide enough evidence, doesn't provide enough information to help a judge answer a legal question. Now, originalists diverge on what happens in that situation. Some originalists argue that the judge, him or herself, should make the best constitutional decision. Some scholars, including myself, argue that judges should defer to elected branch constitutional interpretations, and then there are other positions as well. But the key point is that in the construction zone, there's creativity for whoever the ultimate interpreter is, be it the judge or some other governmental official. Now, why is that distinction important? I think there's two basic reasons why it's important. One, from the originalist perspective, it's important because most originalists think that it is the case that the Constitution's original meaning sometimes runs out, that it sometimes doesn't answer questions. And so therefore, originalists need to acknowledge that phenomenon to make their theory an accurate description of what actually goes on in constitutional adjudication or implementing the Constitution more generally. So constitutional construction makes originalism a more attractive, more accurate theory of interpretation. There's a second important aspect to it, which is the larger the construction zone, all else being equal, it means that interpreters today have relatively more authority, or constructors today have relatively more authority. So let me say it differently. If there's a large construction zone, it means that there are a lot of decisions being made by judges or elected officials that the Constitution doesn't determine. So it becomes crucially important to know who's the ultimate decision-maker, and then what their decision is. What are the political and ideological views that are being used to implement in that construction zone? So the broader the construction zone, the more important the official's political and jurisprudential views are. By contrast the narrower the construction zone, the more work the Constitution itself is actually doing, and the less importance there is in the political or jurisprudential views of a judge or another governmental official. There's a third way in which constitutional construction is important to originalism because if, as I argued earlier, that the Constitution is the mechanism adopted by our political community as a way to coordinate Americans' lives, one of the ways in which the Constitution is better able to do that is if it leaves some questions open. So there are some times where the original meaning doesn't give us an answer at some point in the future, and that there's a statement that it's either a judge or some other official who, on the ground and in real time, is going to be able to use his or her judgment to decide what should be our political community's response to this legal issue. And that legal issue, if it's a judge deciding it, will then be decided using a precedent with the effective stare decisis. That's not the end of the story, because as we know, stare decisis isn't an inexorable rule, so it could later be overruled by later judges or it could be overruled by a constitutional amendment, but it's another way to implement the Constitution in areas where the Constitution may not have an answer. So without the construction zone, originalism would have situations where the original meaning isn't giving an answer and the theory isn't able to respond effectively to at least some, but in some scholars' view, a large swath of constitutional questions. PUBLIUS: Do both interpretation and construction happen in every decision? Do Originalists agree about how this process works? LEE STRANG: There's a robust debate within originalism over whether constitutional construction exists. If so, what its characteristics are, and if so, what its implications are. And one of the points of debate is in every case, is there a moment of constitutional construction? Some scholars have argued that that is the case, that every constitutional law case involves two questions. What is the Constitution's meaning, that's interpretation, and second, applying that meaning to the facts of the case. That's construction. So construction occurs in every constitutional case. That's a position. It's been articulated by Professor Lawrence Solum. That's a respected position. It has benefits to it. There are other originalists who also believe that there's a construction zone who think that there are cases where there is no operation of construction. So an example might be during the last election, we had two presidential candidates. Did both presidential candidates meet the age requirements listed in the Constitution, which by the way, are 35 years of age? And the answer is determinatively, undoubtedly yes. So that would be an example from this other perspective of a situation where you don't have to rely on constitutional construction because there's no under-determinacy of the Constitution's meaning as applied to this particular instance. So originalists are working out the implications of the idea of constitutional construction and whether or not it occurs in every case. One of the benefits from the view of constitutional construction, that construction occurs in every case, is that it seems relatively easy for that view to account for the existence of constitutional doctrine. If you've taken constitutional law, you know there are lots of constitutional doctrines out there. So the free speech area of which the Supreme Court has been involved in for 100 years now involves different tiers of scrutiny, different moves about public forums, whether or not there are ample alternative channels of communication, and on and on. And that constitutional doctrine is able to be accounted for under the view that construction always occur, because these are what those scholars would call implementing doctrines. They themselves aren't required by the Constitution's original meaning, the Free Speech Clause does not require ample alternative channels of communication, but they are reasonable implementing mechanisms of the original meaning of the Free Speech Clause. And so that perspective is able to account for one of the most important aspects of American constitutional law, which is the existence of the doctrine that you learn in law school. PUBLIUS: On that note - What does the future of originalism look like? LEE STRANG: The future of originalism is contingent, it's contingent on having its ideas be powerful enough to persuade Americans generally, government officers in more particular and then even more particularly Supreme Court justices. Originalism's future is contingent on having the political will of one of the major political parties and then of the officials elected from that political party to actually get into office and then into a point, in executive and other branches, including the judicial branch, people, judges and officers who wish to follow the constitution's original meaning. And so there's a lot of contingency in the future of originalism, but let's say that those conditions, those contingent circumstances are met, that there are a number of Supreme Court justices. There are a number of executive officers, that are members of Congress who want to follow the original meaning. I think what that means is that there is not a transformation of our legal system overnight, and that in fact, many aspects, in fact, most aspects, the most important aspects of our legal system are going to continue to be exactly the way they are now. The Supreme Court is going to decide cases. It's going to create constitutional doctrine, that constitutional doctrine will be embodied in precedents and applied by lower federal court judges, state court judges, executive officers, et cetera. But I think what would happen is that you would effectively have a three-step program for originalism over some moderate period of time. So the first step would be that these originalist Supreme Court justices, executive officers would look at existing nonoriginalist precedent and practices and say, we're not going to extend them. That those precedents and practices, we're not going to change them right now, but we're going to extend them in a natural way to a new but analogous situation. And that's going to do one important thing. It's going to signal to other officers and actors that the Supreme Court is now serious about following the constitution's original meaning. And that's going to invite constitutional challenges to existing nonoriginalist precedents and practices. So then stage two, these new cases, these new challenges come to the Supreme Court, come to federal court, come to the executive branch, challenging existing nonoriginalists precedents and practices. And then these originalists officers and judges are going to then start to not just distinguish, but start to narrow the existing nonoriginalists precedent and practices. And this will occur over a series of years because as I've talked about, stare decisis is a rule. It's actually a great rule to protect rule of law values and stability and reliance interests. And it's going to tame the rapidity of the change. So that way the change is modest in over a period of time. Then come stage three. At a certain point, the nonoriginalists precedents and practices will themselves become unusual. They themselves will become relics of a previous legal way of thinking about the constitution. And so at that point, the continued existence of those nonoriginalist precedents and practices will itself become a disruption in the fabric of the law. And so there'll be final cases challenging a nonoriginalist precedent or practice. And the Supreme Court will at that point overrule that nonoriginalist suppressing or practice. So there's a lot of contingency in originalism's future, but even if those contingencies are fulfilled, are met, that there are originalist officers and justices who are committed to the project of originalism, that it's still a long-term project to solely limit the growth of nonoriginalist precedent and practice, cut it back and then ultimately eliminate it. If in fact that occurs, because I think it is the case that there will be some, perhaps many nonoriginalist precedents and practices that ultimately are not actually overruled. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Property Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we explore the method and purpose of Originalism. Today’s episode features Lee J. Strang, the John W. Stoepler Professor of Law and Values at University of Toledo College of Law. Professor Strang writes and teaches about Originalism, Constitutional Law, Property, and religion and the First Amendment. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Originalism is now considered a serious methodology for judges and Constitutional scholars. It wasn’t always well known or remotely popular. How did Originalism develop and rise to prominence in recent years? When I was a law student in the late nineties and early two thousands, there were a few articles on originalism, mostly criticizing it. There were a few books that talked about originalism, mostly criticizing it. And my interest in originalism was as a young American growing up, I heard lots of debates about what the constitution meant on a variety of issues, gun rights, gun control, right to choose, pro-life, et cetera. And I wanted to ascertain for myself what is the right way to interpret our constitution? And then what are the answers that our constitution gives on those and other important issues. And since that time, originalism has become probably the dominant theory of interpretation in the United States, that when you look at, the recent Supreme Court justice nominations, all of the recent Supreme Court justices have identified themselves as originalists. When you look at lower federal court judges, many of them are using originalism explicitly in their interpretations and in their opinions, a number of states Supreme Courts are also talking about in utilizing originalism. And in the legal academy, there's really been a flowering of legal scholarship over the last 20 years that there are numerous books, numerous arguments, numerous conferences, numerous centers that talk about, describe, evaluate, criticize originalism. So originalism has really become a wonderful theory. I think the best example or the best instance, a piece of evidence that originalism has kind of arrived as what used to be kind of a quirky academic theory to becoming a mainstream theory of interpretation is during the confirmation process for then Judge Gorsuch, there was an article by Cosmopolitan Magazine and the article had on this page, a student sent it to me, that it said, originalism is, and then spelled out BS. And I thought, if a magazine like Cosmo, which typically doesn't comment on theories of interpretation is talking about originalism, then you know you've come a long way baby. But at the same time, what I want to say is that originalism success is contingent. It's a contingent phenomenon, it's contingent on the political success of different political parties. So President Reagan, when he was in the White House, he intentionally identified administrators who had intentionally hired and advocated for a position on constitutional interpretation in early version of originalism, they identified and appointed judges and justices who were open to an amenable, to originalism. So the political success of Ronald Reagan, the political success of George W. Bush and then more recently, President Trump have been important contributors, contingent contributors, but important none the less to the success as a practical theory of interpretation of originalism. And that very same contingency could continue or it could be undermined. But I think the fact that Americans are continually drawn to originalism, not just as an academic theory, but as Americans who are wanting to be faithful to their written constitution suggests that there's something deeply baked into the American character and American relationship to the constitution. And in fact, there's survey data that describes American's attitudes towards how judges should interpret the constitution. And the survey data, surveys are subject to criticism, of course, but the survey data suggests that a significant majority of Americans believe that the original meaning or originalism should either be the dominant way of interpreting or at least an important way of interpreting the constitution. And I don't see that sociological fact is going away anytime in the future. And I think it's that sociological fact, that widespread view by many Americans that originalism is important or the most important way of interpretation that explains not just why judges appointed by President Trump or President George W. Bush or President Reagan, say that they follow originalism. But judges appointed by, for example, President Obama. So then nominee Elena Kagan famously or in some people's eyes infamously said that we're all originalists now. And there are a good faith interpretation is that nominee Kagan believed that, a more cynical interpretation is that, she believed that she had to say that for the sociological legitimacy of her nomination and confirmation to the Supreme Court, but either way shows the influence of the idea of originalism on a broad base and even in elite circles. What are some examples of how Originalism has gotten more nuanced as it has become more popular? Originalist theory, as it's developed, especially since the year 2000, has identified two different ways in which originalism operates. The normal way, the paradigmatic way, the focal case of originalism is what we call constitutional interpretation. It's where there's a case, there's an issue, and there's a constitutional question about the meaning of the Constitution and the Constitution's original meaning after having looked at all the different sources there, it provides a determinant answer to a legal question. Does Congress have the power to regulate the commercial transportation of goods on trains across state lines? The answer is clearly and determinatively yes, but that's not always how originalism operates. There's another mode of operation that's called construction, and there's a lot of debate in originalism over whether construction exists. If so, what are its characteristics? And if so, what are its implications? So let me try and give an ecumenical account of construction. All originalists who think that there is construction agree that construction includes situations when the Constitution's original meaning is under-determinant, that it doesn't provide enough evidence, doesn't provide enough information to help a judge answer a legal question. Now, originalists diverge on what happens in that situation. Some originalists argue that the judge, him or herself, should make the best constitutional decision. Some scholars, including myself, argue that judges should defer to elected branch constitutional interpretations, and then there are other positions as well. But the key point is that in the construction zone, there's creativity for whoever the ultimate interpreter is, be it the judge or some other governmental official. Now, why is that distinction important? I think there's two basic reasons why it's important. One, from the originalist perspective, it's important because most originalists think that it is the case that the Constitution's original meaning sometimes runs out, that it sometimes doesn't answer questions. And so therefore, originalists need to acknowledge that phenomenon to make their theory an accurate description of what actually goes on in constitutional adjudication or implementing the Constitution more generally. So constitutional construction makes originalism a more attractive, more accurate theory of interpretation. There's a second important aspect to it, which is the larger the construction zone, all else being equal, it means that interpreters today have relatively more authority, or constructors today have relatively more authority. So let me say it differently. If there's a large construction zone, it means that there are a lot of decisions being made by judges or elected officials that the Constitution doesn't determine. So it becomes crucially important to know who's the ultimate decision-maker, and then what their decision is. What are the political and ideological views that are being used to implement in that construction zone? So the broader the construction zone, the more important the official's political and jurisprudential views are. By contrast the narrower the construction zone, the more work the Constitution itself is actually doing, and the less importance there is in the political or jurisprudential views of a judge or another governmental official. There's a third way in which constitutional construction is important to originalism because if, as I argued earlier, that the Constitution is the mechanism adopted by our political community as a way to coordinate Americans' lives, one of the ways in which the Constitution is better able to do that is if it leaves some questions open. So there are some times where the original meaning doesn't give us an answer at some point in the future, and that there's a statement that it's either a judge or some other official who, on the ground and in real time, is going to be able to use his or her judgment to decide what should be our political community's response to this legal issue. And that legal issue, if it's a judge deciding it, will then be decided using a precedent with the effective stare decisis. That's not the end of the story, because as we know, stare decisis isn't an inexorable rule, so it could later be overruled by later judges or it could be overruled by a constitutional amendment, but it's another way to implement the Constitution in areas where the Constitution may not have an answer. So without the construction zone, originalism would have situations where the original meaning isn't giving an answer and the theory isn't able to respond effectively to at least some, but in some scholars' view, a large swath of constitutional questions. Do both interpretation and construction happen in every decision? Do Originalists agree about how this process works? There's a robust debate within originalism over whether constitutional construction exists. If so, what its characteristics are, and if so, what its implications are. And one of the points of debate is in every case, is there a moment of constitutional construction? Some scholars have argued that that is the case, that every constitutional law case involves two questions. What is the Constitution's meaning, that's interpretation, and second, applying that meaning to the facts of the case. That's construction. So construction occurs in every constitutional case. That's a position. It's been articulated by Professor Lawrence Solum. That's a respected position. It has benefits to it. There are other originalists who also believe that there's a construction zone who think that there are cases where there is no operation of construction. So an example might be during the last election, we had two presidential candidates. Did both presidential candidates meet the age requirements listed in the Constitution, which by the way, are 35 years of age? And the answer is determinatively, undoubtedly yes. So that would be an example from this other perspective of a situation where you don't have to rely on constitutional construction because there's no under-determinacy of the Constitution's meaning as applied to this particular instance. So originalists are working out the implications of the idea of constitutional construction and whether or not it occurs in every case. One of the benefits from the view of constitutional construction, that construction occurs in every case, is that it seems relatively easy for that view to account for the existence of constitutional doctrine. If you've taken constitutional law, you know there are lots of constitutional doctrines out there. So the free speech area of which the Supreme Court has been involved in for 100 years now involves different tiers of scrutiny, different moves about public forums, whether or not there are ample alternative channels of communication, and on and on. And that constitutional doctrine is able to be accounted for under the view that construction always occur, because these are what those scholars would call implementing doctrines. They themselves aren't required by the Constitution's original meaning, the Free Speech Clause does not require ample alternative channels of communication, but they are reasonable implementing mechanisms of the original meaning of the Free Speech Clause. And so that perspective is able to account for one of the most important aspects of American constitutional law, which is the existence of the doctrine that you learn in law school. On that note - What does the future of originalism look like? The future of originalism is contingent, it's contingent on having its ideas be powerful enough to persuade Americans generally, government officers in more particular and then even more particularly Supreme Court justices. Originalism's future is contingent on having the political will of one of the major political parties and then of the officials elected from that political party to actually get into office and then into a point, in executive and other branches, including the judicial branch, people, judges and officers who wish to follow the constitution's original meaning. And so there's a lot of contingency in the future of originalism, but let's say that those conditions, those contingent circumstances are met, that there are a number of Supreme Court justices. There are a number of executive officers, that are members of Congress who want to follow the original meaning. I think what that means is that there is not a transformation of our legal system overnight, and that in fact, many aspects, in fact, most aspects, the most important aspects of our legal system are going to continue to be exactly the way they are now. The Supreme Court is going to decide cases. It's going to create constitutional doctrine, that constitutional doctrine will be embodied in precedents and applied by lower federal court judges, state court judges, executive officers, et cetera. But I think what would happen is that you would effectively have a three-step program for originalism over some moderate period of time. So the first step would be that these originalist Supreme Court justices, executive officers would look at existing nonoriginalist precedent and practices and say, we're not going to extend them. That those precedents and practices, we're not going to change them right now, but we're going to extend them in a natural way to a new but analogous situation. And that's going to do one important thing. It's going to signal to other officers and actors that the Supreme Court is now serious about following the constitution's original meaning. And that's going to invite constitutional challenges to existing nonoriginalist precedents and practices. So then stage two, these new cases, these new challenges come to the Supreme Court, come to federal court, come to the executive branch, challenging existing nonoriginalists precedents and practices. And then these originalists officers and judges are going to then start to not just distinguish, but start to narrow the existing nonoriginalists precedent and practices. And this will occur over a series of years because as I've talked about, stare decisis is a rule. It's actually a great rule to protect rule of law values and stability and reliance interests. And it's going to tame the rapidity of the change. So that way the change is modest in over a period of time. Then come stage three. At a certain point, the nonoriginalists precedents and practices will themselves become unusual. They themselves will become relics of a previous legal way of thinking about the constitution. And so at that point, the continued existence of those nonoriginalist precedents and practices will itself become a disruption in the fabric of the law. And so there'll be final cases challenging a nonoriginalist precedent or practice. And the Supreme Court will at that point overrule that nonoriginalist suppressing or practice. So there's a lot of contingency in originalism's future, but even if those contingencies are fulfilled, are met, that there are originalist officers and justices who are committed to the project of originalism, that it's still a long-term project to solely limit the growth of nonoriginalist precedent and practice, cut it back and then ultimately eliminate it. If in fact that occurs, because I think it is the case that there will be some, perhaps many nonoriginalist precedents and practices that ultimately are not actually overruled. Thank you for listening to this episode of the No. 86 Lecture series on Property Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!