NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we explore the purpose and method of Originalism. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. 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: In the last two episodes, you spoke about how and why the theory of Originalism developed. In this episode, let’s talk about how Originalism can or should be used, particularly by judges. First, when should the judiciary defer to other actors, such as Congress? When is it necessary to invalidate a statute and can Originalism help judges determine that? GARY LAWSON: There are certain respects in which the constitution orders federal courts to give weight to the views of other actors. The seventh amendment orders federal courts to give a great deal of weight to fact finding by juries in civil cases. They don't have discretion. They're ordered to do it. The double jeopardy provision of the fifth amendment orders the federal courts to give not merely deference but absolutely conclusive unreviewable deference to fact finding that results in acquittals in criminal cases. So there are certain respects in which the constitution takes out of the hands of judges the question how they should deal with the decisions of other governmental actors. Most other respects though there are no explicit provisions. So the question is whether there are any implicit norms about that. If the constitution had a clause that said, "By the way judges, when you are deciding cases only rule against the federal government when the government is clearly and unambiguously wrong," that would be like the seventh amendment or the fifth amendment. We don't have that provision. What we have is just article three vesting judicial power in the federal courts. Is it possible to argue that implicit in the meaning of the judicial power is some norm or regime of deference? And let's come up with a specific example. Congress passes a statute. The president signs it into law. Both of those institutions have presumable determined by that action that the law is constitutional. Let's even assume that they've done so explicitly, that Congress writes a bunch of committee reports. "We've thought about the constitutionality very carefully. We think it's constitutional." The president signs it into law with a signing statement saying, " Wonderful constitutional law. Here's my constitutional [inaudible 00:04:03]. Absolutely think it's constitutional." Somebody challenges that in federal court. When federal court decides that issue, how should it think about it? Should it be asking, "What do I think is the correct constitutional answer?" Or should it be asking a different question? Well Congress and the president think it's constitutional. Are they crazy? Should I overturn them only if I conclude not just that they're wrong, but that they're so wildly unreasonable that I cannot attribute their decision to an honest disagreement. That's the question. Now Marbury versus Madison answers part of that, but only part of it. Marbury versus Madison says courts are not conclusively bound by the views of Congress, president. Doesn't say anything directly about whether or not the courts should be giving weight or lots of weight or how much weight to the prior views of Congress and the president. More than a hundred years ago an academic named James Bradley Thayer wrote a law review article, maybe the most famous law review article in American history, where he argued that courts as a matter of both law and policy should only invalidate congressional statutes when they were clearly and unambiguously inconsistent with the constitution. He wasn't quite as generous with state statutes. He thought courts should whack those at will. But with federal statutes he thought there should be a strong judicial presumption that duly enacted federal statutes are constitutional and it would take more than just balance of forces for ponderance of the evidence to show that the statute was unconstitutional. That attitude, sometimes called Thayerian Deference, sometimes called judicial restraint, has been enormously, enormously influential over the last century plus. When you hear someone use the term "judicial restraint" there's a decent chance that they are invoking this Thayerian presumption, maybe even extending it to state laws as well as federal law, suggesting that federal courts should keep watch over things, but don't have an itchy trigger finger. Only invalidate these when you're really sure that this is something that the constitution covers. Is there an actual constitutional foundation for this view? That depends on what you think the judicial power encompasses. If you think the judicial power just is the power and the duty to decide cases in accordance with governing law, are the views of Congress and the president law? No. The statutes that they enact are law because article one section seven says so. Are there signing statements or congressional committee reports? Are those laws? Those aren't laws. So if you take that approach, they just don't count in the balance. You might take account of them if you think they're good evidence of the right answer, but they wouldn't have a status of law that could compete with the constitution itself. So there's sort of an immediate textual objection to the Thayerian principle of deference. There might however be a sort of anti reverse Thayerian argument in favor or something like that regime of deference for state laws. How is that? Why would we come up with that? Think about ordinary forms of argumentation. The usual assumption in an argument is he who asserts must prove. That is, we start from a baseline of not accepting an argument until there is an affirmative reason to do so. Good grounds in both reality and reason why one would have that view. So let's just take that as a basic precept of argumentation. He who asserts must prove. There's a challenge to federal action. Who has to prove what? Who is asserting and who is proving? Because the government is government of limited and enumerated powers, the first question is always, "Where does that institution get the power to do what it's doing?" The burden of proof is always initially on the federal government to show that it can do what it's supposed to do. If it can meet that burden and there's something else like say the first amendment or the fourth amendment that seems to take some of that power away, then the person who is making that argument would seem to be the one asserting a claim. Yeah, they seem to have that power, but they really don't. So the burden of proof would shift. Now that may not amount to a Thayerian only reverse them if it's unreasonable, but it does tell you where the force of inertia should lie. Force of inertia on that argument should lie against federal laws, not in favor of them, at least where the claim is federal government doesn't have the enumerated power to do it. State governments stand in a very different position under the constitution. They start with whatever powers they have. There are certain constitutional provisions in article one section ten then in the fourteenth amendment and subsequent amendments that take away some of that power or limit some of that power, but challenges to state and local laws under the federal constitution are never of the form, "Well they don't have the power to do that." They're always of the form of, "Well they probably have to power to do that as general governments, but there's something in the constitution that takes them away." That would counsel in favor of a burden of proof on the challenger there. Again, not a Thayerian rule of deference, but presumption in favor of the validity of state law. So there are arguments you can make inferentially from the constitution for various kinds of deference or weight or presumptions depending on various challenges. I don't think any of those correspond to the kind of rule that James Bradley Thayer proposed a hundred plus years ago of approve federal statutes unless they're unreasonable. PUBLIUS: Does Originalism preserve the authority of judges? Does it provide them with a neutral framework for evaluation? GARY LAWSON: Justice Scalia was strongly committed to Originalism as a method of deciding cases at least in large part because he was afraid that any other method would simply leave judges free to impose their own policy views in the name of the law on whoever they wanted. To some extent this is a generational thing. Justice Scalia grew up in the shadow of the war in court. As did Robert Bork, Raoul, Burger, and the other very early originalists. The war in court was ... how shall we put this as neutrally as possible? ... very creative in finding ways to impose a particular political agenda in the name of the constitution. So it was fairly natural that the early uses of Originalism were reactive, were against that. "Judges are making stuff up," they said. "How can we come up with a methodology that will stop judges from making stuff up? Ah ha. If we stick with the original constitution," ... originally understood as the original intentions, later modified to original public meaning ... "That's something external to the policy views of the judge. Something to which they will have to point to justify whatever they did and that's a way of constraining them from just making up whatever crap comes into their mind." This has always been one of the chief arguments in favor of Originalism as a method of deciding cases because it will constrain the otherwise untrammeled discretion of judges. How much sense does this make? Well it certainly has a kind of intuitive plausibility. Let's plummet a little deeper. If the goal is really to constrain the discretion of judges, sure reference to some conception of original meaning is one way of doing it because it's external to the policy preferences of judges. There are lots of things that are external to the policy preferences of judges. You can have a rule that says, "Decide every case in accordance with the current political platform of the democrat party," and that would constrain judges. It would be something other than ... except in the happiest of coincidences ... their own personal preferences. So if the goal is to constrain judges, that tells you you want something to serve as the standard. It doesn't tell you what the standard is. Now, I confess I have strong preference for the constitution of 1788 over whatever happens to be the current political platform of any political party, but that's normative preference that would have to be justified and I would have to admit in my private moments that the one is just as constraining as the other. So just thinking about constraint is not enough. You also have to think about what it is that's doing the constraining and why. PUBLIUS: So if the Constitution is the constraint, does the Constitution say anything about judicial precedent? GARY LAWSON: If you look at constitutional cases in quotation marks today, pick up a random issue of the United States Reports, find some case that's purports to be about applying the constitution to some particular circumstance, it almost certain that virtually everything that you read in that opinion will not be a discussion of the constitution, it will be a discussion of prior judicial decisions, usually Supreme Court decisions, purportedly discussing even more prior judicial decisions ultimately at some point ending in some case that at some point had something to say about the constitution but what it had to say about the constitution way back then, we're not really talking about because we're talking about all of the cases in between. Virtually everything that happens in my modern judicial adjudication is about precedent. It's very, very rare. Not impossible. Very rare to have a case come up where there isn't already a very thick body of prior judicial decisions and the focus of the Court's attention is on the constitution itself. Just to amuse myself, I actually did a survey some years ago of the October 1986 term of the Supreme Court, looking at cases involving constitutional provisions and what I determined didn't really surprise me was that about half of the time, the Court never even quoted the constitutional provision that was supposedly at issue. Never even quote, 'cause that wasn't what the case was about. The case was about all the prior decisions in between. So just as a matter of actual legal practice, constitutional law is not about the constitution. Constitutional law is about precedent. If you're a lawyer, you're an actual litigating lawyer, you don't need to know much about the constitution. What you need to know is what Supreme Court opinions have said about the constitution. But let's take a theoretical step back. Is that practice itself something prescribed by or even permitted the constitution? Well, why wouldn't it be? Hasn't it been around forever? Well, to some extent, yes. In the early days, there was less reliance on prior judicial decisions, but that could easily be attributed to the lack of a West reporter system. You didn't have a regular process of reporting and disseminating opinions. They weren't there on Westlaw for you. As it was understandable that people wouldn't refer to them or rely on them quite as much. Certainly, it was well established in English law prior to that time for centuries that reference to prior decisions was an appropriate source of law. In McCulloch vs. Maryland, the first argument, Chief Justice Marshall, uses for why the Second Bank of the United States is okay was an argument of precedent. Not a judicial precedent but a legislative and presidential precedent in approving the prior bank. So there's a very long, distinguished pedigree of relying on precedent to the point where it's probably correct to say prior judicial decisions on a matter count as a form of law. If you're cataloging all the things that you would count as law, the constitution, statutes. Prior judicial decisions, as a matter of legal practice over the course of centuries, have a claim to that status. They would count as among the sources of law that you would gather. And for almost everybody in the legal world, that's the end of the story. I'm kind of an odd ball on this. I wanna ask a more basic question. Okay, let's grant that all of these prior decisions, all of these precedents are a kind of law. Well lots of things are kinds of laws. Administrative regulations are laws of a sort. Common law norms are laws of a sort. Congressional statutes certainly laws of a sort. What happens when laws of that sort come into conflict with the constitution? Well if it's a statute we already know the answer, right? The constitution beats the statute. Constitution is hierarchically superior to all of these other sources of law. What if it's an administrative regulation? Constitution beats the administrative regulation. Common law norm? Constitution beats the common law norm. Prior precedent? Well, does the prior precedent beat the constitution? That's an interesting question, isn't it? I'm inclined that the constitution beats the prior precedent for the same reasons and in the same way that it beats the statute enacted by Congress and signed by the President, the duly enacted regulation and the centuries old common law norm. The constitution beats everything. That's what it means to be the constitution and if that's right, there's something very puzzling about preferring judicial decisions, conceding to be law of sorts to the actual meaning of the constitution. Now having said that, there are, to my knowledge, exactly two prominent legal academics who think there's a constitutional problem with preferring precedent to the constitution. I'm one of them. Michael Stokes Paulson is the other. We're it. On the federal bench, the only person I know of right now who has some strong sympathy for that view would be Clarence Thomas. Hasn't put it precisely those terms, but he has expressed reservations about the extent to which the Court relies on precedent in circumstances where the constitution pretty clearly says something different. But, having said that, advising young lawyers don't try that argument in Court. PUBLIUS: As you said, the vast majority of cases usually deal with precedent. So does Originalism have a place for precedent? Does it have a method to decide between competing precedents? GARY LAWSON: All right, suppose that you're dealing with any originalist except the two in the world who think that there is a constitutional problem with giving precedence, prior judicial decision, priority over the actual meaning of the constitution in cases. That's almost everybody on the planet except me and Mike Paulsen thinks that's fine. What that means is that in the actual practice of adjudication, most of the time people are not gonna be arguing about the meaning of the constitution, they're gonna be arguing about the meaning, interpretation, expansion of prior judicial decisions. Those are the texts that people will be using. So suppose we're dealing with the world where really what we're arguing about almost always is prior judicial decisions. In fact, there are gonna be almost no cases, very few cases, where something comes up that isn't overrun with prior judicial decisions and all you need to do is strictly interpret the constitution. Let us stipulate that a very high percentage of those prior judicial decisions were not rendered using the methodology of originalism. Or if they were, it was done really badly, right? So that if you sat down from scratch and tried to figure out the meaning of the constitution, you wouldn't come up with this mess of case law. Let's just grant that that's going to be true most of the time. What do originalists do with those precedents? When should those precedents trump the meaning of the constitution? When do you actually go back to the original meaning of the constitution and use those to trump the precedents and overrule them? I think it is fair to say that there is no consensus, originalist theory about how to do that. Is that a problem for originalism? Sure, it is. It's also a problem for every, single non-originalist theory out there. They've got the same problem. Nobody has a clear, crisp theory about what to do with precedents. Nobody wants to say never overrule precedents 'cause sometimes, everybody's gonna find something they really don't like. Nobody wants to say well we'll overrule a precedents whenever I really don't like them, even if that's what they mean. They're not going to say it. So how are you gonna articulate a principle other than overrule them when I don't like them that explains when precedents should be overruled, when they should be distinguished, when they should be followed slavishly. Nobody's got a good theory about that. Nobody, from any methodology, even people who build their entire models of constitutional interpretation around what's called common law constitutionalism, really smart people doing this, don't have good theories of precedent. So yeah, integrating precedents into a model of interpretation like originalism, really big problem. Does that disadvantage originalists in respect to any other methodology? I don't think so. PUBLIUS: Are there any Originalist rules about precedent? Can we derive rules from the Constitution? GARY LAWSON: So if nobody from any methodological perspective has a really good theory of precedent, how can we describe the way that precedent actually functions in the Courts and if we work hard enough, can we actually glean from the constitution itself any guidance about how precedent should be employed? Well, let me start with that second question first. I don't think you can actually get much by way of examining the constitution. Not zero. I thinK you can get something, don't think you can get much. What you have, you don't have a precedent clause in the constitution, right? What you do have is Article Three vesting the judicial power of the United States in federal courts. It is not at all crisp and clear what judicial power is or was in 1788, but one can fairly say that judges in the Anglo-American tradition, circa 1788, sometimes, not always, sometimes looked to prior decisions, treated those prior decisions as a source of law. The problem is that they did that primarily in connection with a common law system or a statutory system in England that didn't have a constitution standing as its supreme law. So the hierarchy of legal sources was different. I think one can fairly conclude that the judicial power, in Article Three, includes the power and, in some case, the duty, the responsibility to treat prior precedents as a kind of law, as a source of law, they do seem to have that status in the Anglo-American legal tradition. Doesn't answer the question in constitutional cases of what to do with the precedent when it conflicts with the constitution. It may provide a measure of guidance about how to handle precedent in statutory cases, in case involving federal common law. There it is plausible to think that the judicial power includes the traditional modes of utilization of precedent that would have been familiar to judicial actors in the 18th century. If you can get something out of the constitution, it's not gonna get you the thing that people are really interested in which is how do you reconcile precedence with the actual constitution when it looks like the two are in conflict? The first question, what are the operative rules of precedent that operate in Court? Well once I figure that out, I will write the book that explains it and I will become spectacularly famous because a lot of people have smashed their heads against walls trying to come up with that. It is very difficult, I won't say impossible, very difficult by reference to some predetermined set of rules to predict how precedent is going to play out in a wide range of cases. Sometimes you can predict it fairly clearly, but in the contested cases, the people who can accurately predict how those cases come out are not law professors. They're spectacularly rich litigators if they have that skill. We don't have a canonical set of rules or norms. We have guidelines. We have things that say propositions like well it's not enough to overrule a precedent that it was wrong, it's gotta be really wrong. It's gotta be upsetting settled expectations or if it would upset settled expectations to overrule it, then you don't overrule it unless it's really, even if it's really, really wrong, except that sometimes they do anyway. So it's possible to come up with what I would describe as rules of thumb. And actually, over a very wide range of cases, yoU will learn this in your law school careers, most of the time, everybody who's involved in the legal system, takes certain precedents as the starting point. You never have to deal with it because they just aren't challenged. People kind of know which ones are embedded in the system and only in very, very extraordinary circumstances are those embedded precedents actually challenged. But to describe those as rules of precedent, very difficult to do. There's actually a book that was put out fairly recently that includes chapter by the newest Supreme Court justice, Brett Kavanaugh, trying to bring some measure of coherence and consistency to the use of precedent in the courts. Maybe, possibly, that's the start of a new model of academic jurisprudence that will give us something like a set of rules of precedent. That's a goal that a lot of people have had for a very long time. Don't think we have it yet but, as I just said, people are starting down that path. PUBLIUS: Is Originalism impossible now that so many precedents conflict with it? GARY LAWSON: Suppose that you really want to be an originalist judge. You want to decide cases in accordance with the original meaning of the constitution But you also believe in the conventional account of precedent. Whatever that turns out to be. However you ultimately describe that conventional account, it treats large masses of prior decisions as essentially unchallengeable starting points. If, hypothetically, lots and lots of those precedents, one might even say most of those precedents or virtually all of the precedents, are themselves not originalist, that is just viewed as interpretations of the constitution, they don't match up to the actual communicative meaning of the instrument. But you're taking all of those as your starting point, spending almost all of your time arguing not about the meaning of the constitution, but about the meaning of the prior judicial decisions, what is there left of originalism? The short answer is not very much which is why you don't see dramatic swings in jurisprudence even when the composition of the Court changes. Originalism comes into play, in this setting, in a relatively modest number of cases. Every once in a while, as in the Heller decision from a decade ago, where issues about the second amendment came up, essentially for the first time. The methodology that you choose to approach those questions of first impression might make a difference. Every once in a while, as in Crawford vs. Washington, in 2004, when the Supreme Court dramatically remade its jurisprudence under the confrontation clause of the sixth amendment. Original meaning will be pulled out and used explicitly to overrule a large body of non-originalist precedent. Those are exceptional cases. Those don't happen very often. This is why the stakes about the interpretative methodology on the Court tend not to be nearly as great as people think. This is why Elena Kagan, who I admire enormously and have for a long time, can say we are all originalists now. And not being drummed out of all of her social circles. Even if that's true, it's not gonna change a lot of results because most of the time, it's not originalism that's driving the boat. What's driving the boat is interpretation of prior precedents. So is originalism completely irrelevant as an interpretative methodology? No. There are those cases every once in a while where on the margin it will make a difference. That's not nothing. But it's not everything either. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about Originalism. 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!