NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we explore Originalism and the role of a judge. Today’s episode features Professor Randy E. Barnett, who is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution. 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: Is Originalism just a pretext for conservative ideology? Are Originalist judges activists by definition? RANDY BARNETT: Originalism is a way of identifying (or “to identify”) the meaning of the text of the constitution. To the extent that the text of the constitution is consistent with conservative ideology. It's going to support conservative results. To the extent that the text of the constitution is consistent with progressive ideology it's going to support progressive results. What originalism should not be about is cherry picking evidence in order to reach your preferred constitutional results. That would make originalism really no different than living constitutionalism. Originalism should be distinguished from originalists. The actual people who are doing it. Originalists are fallible. Originalists are sometimes biased like anybody else. Originalism is the method meant to discipline people. Originalism is a methodology that can be used to criticize originalists if in fact they are not living up to the ideal that originalism provides. Originalism is a theory of interpretation and as a theory of construction needs to be distinguished from the question of what is the proper role of judges in a constitutional republic? Should judges for example, be deferential to the popular branches that are elected? Or should they in fact be more skeptical of what the popular branches are doing? This is really a question concerning the appropriate judicial role in enforcing the original meaning of the text of the constitution. It's not about originalism per se. In a constitutional republic judges too are agents of we the people. And as agents of we the people, they have a job to do. And their job is to see to it that the other branches of government play by the rules provided by the original meaning of the text of the constitution. PUBLIUS: What does “judicial deference” mean? RANDY BARNETT: The constitution itself does not provide any particular standard as to how deferential judges should be or not be to it. It simply provides that the judges have the judicial power and the judicial power does include the duty to obey the higher law opposed to the lower law. Exactly what standards courts will use to assess whether a statute is consistent or inconsistent with the higher law of the constitution is something that is going to have to be a constitutional construction since it's not actually in the text of the constitution itself. But as we've already seen constitutional construction needs to be faithful to the original meaning of what is in the text. What is in the text is that we have three co-equal branches of government, each one of whom is obligated to follow the original meaning of text of the constitution. That includes the judiciary. So the judiciary should not defer to the judgements rendered by the other branches any more than the other branches need to defer to the opinions of constitutionality rendered by the judiciary other than to obey and respect the actual judgements of the courts of law. So it's just as wrong for the judiciary to defer to congresses interpretation of the scope of its powers as it is for congress to defer to the judiciaries' definition of congress's powers. What congress needs to defer to is simply a judgment that's made by the judiciary in a particular case and controversy. Likewise, the judiciary clearly needs to recognize when a proper law has been enacted and then evaluate it accordingly. The judiciary is not charged with passing laws itself. It must take laws as they are to? give to them by the congress and by the president. Some people have claimed that judges should only invalidate statutes if they are clearly in conflict with the meaning of the text of the constitution. And something like that was said by Alexander Hamilton in the Federalist Papers. But of course, this all boils down to what you think a clear conflict is. It would seem that when there is a conflict between a statue the constitution judges should follow the constitution. How clear of conflict that must be, I think is a matter of semantics. A conflict is a conflict and once a judge reaches conclusion that a conflict exists, then you need to follow the higher law. PUBLIUS: What about judicial restraint? Is restraint always the opposite of activism? What do these terms mean for a judge? RANDY BARNETT: The concept of judicial restraint should not be confused with the concept of constitutional constraint. Judicial restraint is actually is about judicial self-restraint. Where judges refrain from ruling certain ways out of deference to the other bodies. Constitutional constraint is a very important feature of our constitutional order because it means all constitutional actors including judges, must be constrained by the original meaning of the letter and the spirit of the text of the constitution. So, judges should be constrained by the original meaning even if that means invalidating a law that's inconsistent with that original meaning that was enacted by a popularly enacted legislature. It's very common for people to talk about judicial restraint versus judicial activism. Judicial activism is a pejorative. Judicial activism refers to a judge that is stepping outside his or her appropriate role and interfering with the operations of the other branches of government. The popularly representative branches of government. Everybody's against activism in that sense. Everybody's against activism in that sense. So there needed to be another label to describe an active judiciary who is not activist in this bad way. But it was simply doing its job in enforcing the rules against the other branches. And judicial engagement is the word. And judicial engagement is the term for judges who are engaged with the constitution and are doing their job in enforcing the constitution even where they disagree with the other branches of government. Judicial engagement treats judges as a third co-equal branch of government who are as entitled to their own view of constitutionality as the other branches are. And just as the legislature need not defer to the judge's view of the constitution, neither should the judges defer to the legislature's view of the constitution. That's an engaged judiciary. And engaged judiciary is one that independently assesses the original meaning of the text of the constitution and applies it ... An engaged judiciary is one that identifies the original meaning of the text of the constitution and follows it, whether that means upholding or invalidating an act of Congress. PUBLIUS: Can you give us any examples of judicial deference where a court did not exercise proper judicial engagement as you’ve described it? RANDY BARNETT: To understand judicial restraint, think about what Chief Justice Roberts did in NFIB versus Sebelius. Remember he sided with the majority that said that an individual purchase mandate exceeded the power of Congress under the Commerce and Necessary and Proper clause. And this would be under either the original meaning of Commerce and Necessary and Proper clause, or under existing Supreme Court doctrine, which are constitutional constructions. So it's beyond the power of Congress. He then said he had a duty to defer to the statute, and that required him to adopt not the natural meaning of the statute, which would be unconstitutional, but a reasonably possible reading of the statute, which he could then uphold. This whole idea that he had a duty to defer to the statute, rather than an independent duty to enforce the constitution against a co-equal branch of government, which is Congress, is the concept of judicial self-restraint. And it was as a result of this that an unconstitutional statute was upheld. What makes the Roberts example interesting is that on the one hand he distinguished between what the meaning of the constitution was, or in this case it was the meaning of Supreme Court doctrine that governed the Commerce clause and the Necessary and Proper clause and his duty as a judge to try to uphold the statute if he possibly could. And that meant substituting a reasonably possible reading of the statute for what he conceded was the natural reading of the statute. Another example of judicial deference is Justice Scalia's concurring opinion in the Raich case, where he is basically applying a constitutional construction which says that Congress may reach wholly interest date, non-economic activity when doing so in essential to a broader regulatory scheme. None of that, of course, is in the constitution. That's all a constitutional construction. And then he adopts a deferential approach to whether it is essential to a broader regulatory scheme. We argued that we were entitled to a hearing with an independent judge deciding whether it was actually essential or not essential to a broader regulatory scheme to reach marijuana that was being regulated by California state law. Justice Scalia adopted a posture of judicial restraint and deference to Congress' own assessment, even though Congress never considered specifically whether it needed to reach locally grown marijuana that was being regulated by the states. In this way, because of judicial deference, Congress' powers were expanded beyond that which had previously been recognized, even in cases like Wickard versus Filburn. PUBLIUS: Is Originalism a truly neutral framework for the judiciary? RANDY BARNETT: Originalism provides a neutral framework for judges to use insofar as the constitution itself is neutral. If the constitution leans one way or the other way, judges following the constitution need to lean the same way the constitution leans. So yes, it's neutral insofar as there is an objective referent outside the judge's own personal preferences to follow, which is the original meaning of the text of the constitution and a faithful construction or application of that text. But no, insofar as the constitution itself is not neutral with respect to, for example, the individual rights of we the people. It favors the individual rights of we the people over other powers that might be claimed against the individual rights of we the people. Originalism can certainly lead to unjust results if the text that's being interpreted leads to unjust results, and that was certainly the case at the founding when the text of the constitution allowed for slavery local. Under the original meaning of the text of the constitution, there was nothing that the federal government could do about slavery within a state that already had it. However, the constitution was then amended and under the original meaning of the current constitution, that unjust result is no longer constitutional. Are there other unjust results that might be constitutional under the original meaning of the text as amended? That's something about which reasonable people may disagree. Whether the constitution as a whole is legitimate, however, depends more on whether it establishes a lawmaking process that tends to lead to just outcomes, as opposed to a law making process that violates the rights retained by the people. I think that if the original meaning of the text of the constitution were actually followed, there would be a whole lot less unjust results than we currently have under the constitution that the Supreme Court has given us. I think that there would be many fewer unjust results if the original meaning of the text of the constitution, the whole constitution, were adhered to by all branches of government, as opposed to the living constitution that's been given to us by the Supreme Court. What I mean by following the original meaning of the whole text, not just parts of it would include, for example, following the original meaning of the Ninth Amendment that says the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people and the original meaning of the privileges or immunities clause of the 14th amendment, which says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. If you came down from Mars and you read those two provisions of the constitution, you'd think they were pretty darn important, and, yet, the living Constitution that's been given to us by the Supreme Court has redacted both of those provisions of the Constitution, and you ask any constitutional lawyer and they'll tell you they cannot argue either one of these provisions in an actual court case. That's wrong, and if these provisions were restored to the Constitution, along with the original meaning of many other provisions of the Constitution, then more of our individual rights would be protected from overreach by the federal government and by state government than is currently being protected by the living Constitution given to us by the Supreme Court. 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!