Launching Originalism Watch and Exploring Progressive Originalism
ELIZABETH WYDRA: Hello. I’m Elizabeth Wydra, President of the Constitutional Accountability Center. Welcome to today’s Purple Chair Chat. We call these conversations Purple Chair Chats because normally, we would be coming to you from the iconic purple wing chairs in CAC’s Washington, DC offices. But we like so many of you have been working from home during the COVID-19, pandemic and making due. So many of us have lost so much during these difficult times even though there is now a ray of hope on the horizon but I sincerely hope that all of you are still staying safe and well.
Purple Chair Chats as those of you who joined us before know, tackle the important legal, political, constitutional moments of the day and today we are talking about an issue that is at the core of what we do here at the Constitutional Accountability Center—Progressive Originalism.
That might seem like an oxymoron to some of you. So you can also think about this chat, today, being about the progressive promise of the Constitution’s text history and values, as our Constitution has been amended over time to make our nation more equal, more inclusive, more just and more free.
But wait, you might be thinking isn’t originalism always conservative? Isn’t it always inextricably linked to the white men and the late 1700s who had the gall to write about liberty and freedom, while also enslaving people at the same time? These are legitimate questions and fortunately we are joined today in this discussion to talk about all of these questions and more by the fabulous writer for Slate Magazine, Mark Joseph Stern, who also has a JD from Georgetown and my dear friend and brilliant colleague Praveen Fernandes, who is CAC’s Vice President. I’m going to hand things off now, actually, to Praveen, who is going to moderate today’s conversation. Thank you so much Praveen.
PRAVEEN FERNANDES: Thank you, Elizabeth. It’s so great to be in conversation with you albeit virtually in these times. You know, I guess, let’s just start it off by saying CAC has this new blog series Originalism Watch and so can you tell me a little bit about what Original Watch is? What is the purpose of Originalism Watch and what it is that you’re trying to accomplish with it?
ELIZABETH WYDRA:Yeah, absolutely. So I’m very excited about this blog series which we have two posts already in our Originalism Watch series which you can find on our website. The Originalism Watch series is designed to dispel this huge myth pushed by conservatives for basically forever, that the Constitution is an inherently conservative document and any constitutional interpretation that begins with the text of the Constitution will tend toward conservative outcomes. This is totally wrong if you get nothing else from this conversation that is wrong. I will tell you more later. But, that’s the thing to remember because the reality is that originalism which we can loosely define as looking to the actual text of the Constitution and the meaning of those words in the text, at the time they were ratified in order to help us resolve constitutional disputes, that’s not an inherently conservative method. And in fact, it points more often than not to progressive outcome when it is applied rigorously and in good faith. And I think a lot of folks might be thinking, how is this possible? Especially when you think of, again, as I mentioned at the beginning, you know, this document that was revolutionary for its time, but certainly many of us were excluded from the promise of liberty at the founding.
But the reason that looking to the text of the Constitution leads to progressive outcomes, more often than conservative ones, is because the Constitution has been amended over time to make its text and our country even better than the document we were starting with. Importantly, it has been amended time and time again to ensure an inclusive multiracial democracy which did not exist at the founding.
It has been amended time and time again to give the federal government authority to enforce the guarantees of liberty and equality that we wrote into its charter protecting fundamental rights against both state and federal infringement. And I think the story is so important because it shows how over time “We the People” especially the “we” that was excluded at the time of the founding of our country have persisted and pushing our in Constitution along an unmistakable Arc of Progress and writing ourselves into our national story.
And so, because of that, originalism, as a method of constitutional interpretation, that takes the words of the Constitution at starting point should powerfully advocate for applying this constitutional Arc of Progress. And the often sweeping understanding of the progressive amendments to the Constitution, but far too often we’ve seen in the hands of conservatives that originalism only seems to embrace for lack of a better term the original constitution of the 18th century and I just want to be clear while we’re dispelling myths that I can see what you’d be confused because of that but originalism does not refer to using that original Constitution only. Although given how little conservative originalists seem to care about the amended Constitution you’d definitely be forgiven for thinking that’s where the term comes from, but that is unquestionably wrong. We apply the whole Constitution and so our Originalism Watch series aims to do two things. One, showcase the affirmative theory that the Constitution’s text and history, support progressive outcomes, like greater equality, accountability and justice. Whether we’re talking about racial justice, in rights, LGBTQ equality, access to the courts and due process, especially for marginalized and the oppressed peoples as well as protection for this inclusive, multiracial, democracy, that we fought so hard for. So that’s number one. And then number two, the Originalism Watch series will hold conservatives to account when they use originalism or what we have called Fauxriginalism to apply just a cramped reading of the Constitution as a pretext for advancing a conservative political agenda.
PRAVEEN FERNANDES: Thank you so much, you know, one of the things that you said that struck me was about the difference about using the whole Constitution, so, fidelity to the whole Constitution, which is the amended Constitution. But another thing that I think, sometimes people don’t understand is there are some articulations of originalism that we don’t support right and I think it sort of helps to sort of talk when we’re talking about like having fidelity to the Constitution about what that means. And could you talk about some versions of originalism or some articulations of originalism that we truly actually do have problems with?
ELIZABETH WYDRA: Yeah, absolutely. So you know, there’s this kind of idea that sometimes when we talk about originalism we’re doing what is called original intent or sometimes original expected application. And basically to oversimplify that’s where you’re like, hmm, white founding father and 1787 , how would you apply the fourth amendment to cell phones?
And that is not–frankly even conservatives when they’re being honest, would agree that that’s not how constitutional interpretation works. You know, we have words that were made law by the Constitution and so it doesn’t matter what the intent was of the people who wrote those words. One because that’s a really bad way of doing interpretation of the law. But also, frankly, it’s kind of impossible. It’s very hard to ascertain and intent when you have multiple authors of the law who probably had many different intended things.
But also, you know, I think perhaps one of the most important points is even the framers themselves in 1787 didn’t want us to look at their original intent. So ironically looking at the original intent of the framers goes against the original intent of the framers. So, instead what we do when we talk about looking to the original, meaning of the Constitution, is we start absolutely with the words and the fact is people wrote the Constitution and people ratified the Constitution to in most cases set forth general principles which were broad enough to be applied throughout the ark of our country’s history. So we talk about things like interstate commerce. That’s not a specific listing out of what counts as interstate commerce. It’s a broad term like interstate commerce that can cover a broad variety of circumstances. We talk about things like equal protection, that is a very broad general principle. We talk about it applying to persons that doesn’t list out the category of persons to which it applies. It says persons. That’s a very broad and encompassing term. So we start very much with the words themselves. We don’t cabin them to the factual circumstances at the time they were written, but we do look of course to what people thought they were ratifying. So, again, you know, if we talked about equal protection, we can think about, you know, what is the meaning of the word equal. We don’t limit ourselves to the intent of the people who wrote that, because they intended to write a general principle and so this type of original expected application, where you kind of do a seance and think about what James Madison would think about violent video games or gay couples getting married or abortion, that’s not what originalism is and frankly, there’s agreement among both conservative and libertarian there among conservative libertarian, and Progressive constitutional Scholars that’s not what we do anymore. So that isn’t what we’re talking about. Even though, I think sometimes there’s an oversimplification that might be what we’re talking about.
PRAVEEN FERNANDES: Thank you. That’s impossible. You know, I think sometimes when these people are having these kinds of conversations and there’s not a clarity about what it is, they are opposing, it leads to sort of an unproductive conversation where people are fighting an imaginary enemy and sort of there’s not clarity and really what it is that we are supporting. So, Elizabeth you’ve given us a very good articulation of sort of, you know what a rigorous and good faith application of fidelity to the text might look like if you’re talking about fidelity to the text of the whole Constitution, but I’m going to pull in Mark Joseph Stern, who in addition to his amazing writing for Slate is the author of this fantastic book, American Justice 2019: The Roberts Court Arrived.
So suffice it to say it’s a great read and Mark is an established court watcher and one of the things that I think is so interesting, Mark, in your writing about this is if Elizabeth talked about why progressives don’t have to be skittish about originalism, if it’s applied with rigor and good faith. You’ve sort of written about something slightly different, which is, I would say almost a strategic embrace of originalism, or textualism, sort of the same conversation when people are talking about the text being a simple statute, rather than the Constitution. And you sure talk about people who regardless of whether they identify as originalist or textualist have deployed, this to great effect at the Supreme Court and the lower courts. And I first noticed your writing when you were writing about this in the context of a case called New Prime v. Oliveira. But what you talked about was prescient because it sort of proved true in Bostock v. Clayton County too. So tell us about this strategic embrace.
MARK JOSEPH STERN: Yeah, so it’s been interesting as a court watcher over a number of years to see advocates, particularly on the left, develop winning approaches at a fairly conservative court, right? I think we can agree that even before, Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court, it has been a pretty right-leaning Court for some time. And for a while, advocates on the left would usually write something called the Kennedy brief that was aimed at Justice Anthony Kennedy it and getting his swing vote. And we all knew that Kennedy was obsessed with dignity and equal dignity, and you could sort of CRTL F these briefs to see just how many times they used the word dignity and other phrases that Anthony Kennedy loved and after Kennedy stepped down, he sort of took the Kennedy brief with him, there was no need for advocates to cater to his idiosyncratic jurisprudence and instead, we started to see the rise of what I initially called, the Gorsuch brief. Now, we have even more self-proclaimed, textualists on the Court. So it’s not just the Gorsuch brief anymore. It is the brief that progressive advocates, tend to write when they want to win at SCOTUS. And what this brief does is really drill down into the text often like word by word, almost diagramming sentences. When interpreting a statute to explain why a fair reading of the plain words of the law should lead to a progressive outcome and it doesn’t always work right? There are cases where I think the conservative justices have strayed from the plain text and gone off in a different direction because of maybe policy, concerns or even political leanings. But there have been some real victories with this strategy of trying to give the justice the methodologies that they want. And so New Prime is a great example, we can get into the details here, but this was a case that stopped a decades-long winning streak for corporations, trying to prevent their workers from suing stop that that winning streak in its tracks because organizations like the Constitutional Accountability Center did a really good job explaining to the Court why in reality the text of this statute as it was understood at the time of its passage in 1925 clearly gave this certain class of employees a right or a certain class of workers a right to sue if they face mistreatment or abuse or something like that. And I think that that is, you know, the fact that almost all of the litigants in that case drilled down on the text and the original meaning of these of these words of the statute shows that the Gorsuch brief, whatever you want to call, it is here to stay and whether you love or hate textualism and originalism it is the game you have to play if you want to win at the Supreme Court.
PRAVEEN FERNANDES: Mark, thank you so much for that. I’m gonna ask you a follow-up question, which is to say that, you know, you mentioned New Prime, and sort of talked about that in detail, but I love for you to say, a little bit about Bostock v. Clayton County, which, which followed right after that. And a lot of people pay more attention to that than the New Prime decision, obviously it got more press and then also to say, you know, the examples you’ve cited so far or about applying that sort of relationship to text to simple statutes. And I’m curious about whether you see that going to beyond constitutional matters as well sort of originalism.
MARK JOSEPH STERN: Yeah. So, I think Bostock is widely considered to be the biggest victory for progressive textualism at the Supreme Court so far. And this was a case that analyzed Title VII of the Civil Rights Act of 1964, which bars employment discrimination, among other things, “because of sex”. And the question is whether this law prohibits employment discrimination against people who are gay or transgender. So, basically LGBTQ employees. And for many years progressive advocates developed a straightforward, textualist reading of the law that showed why it does encompass LQBTQ people, which might not seem obvious at first. And a lot of opponents of this strategy, a lot of conservatives, sort of groused and complained and said, well, there’s no way that you know legislators in 1964 were thinking about LGBTQ people when they passed this law. There’s no way it was designed to protect them. But what progressive litigators argued and what the Supreme Court eventually agreed with was that even if we take the word sex, as it was understood by most or all Congressman in 1964, to just mean biological sex, the distinction between men and women, this law still bars employment, discrimination against LGBTQ people, for the simple reason that it is impossible to discriminate against gay person or a transgender person without taking their sex into account, right? If you fire a male employee for dating a man but wouldn’t fire a female employee for dating a man that employee’s sex is the decisive factor that’s leading to discrimination and very similarly with what the Supreme Court call transgender status. Perhaps even more, obviously, you cannot discriminate against a transgender person without taking their sex into account and saying, well this person was born with one sex assigned, one sex at birth but now they present as a different sex and I don’t like that. And I’m not going to tolerate that, you know, the consideration of that person’s sex is really at the heart of that discrimination. And this was a theory that for a time was considered sort of far out. We saw some conservative judges, try to swat it down but when it got to the Supreme Court, it prevailed by a six to three vote. And I think again that’s the most significant triumph of what you might call fair and honest textualism or progressive textualism because it shows that you can win a monumental victory for gender minorities and sexual minorities by playing by these rules that were set out by justices like Scalia and Clarence Thomas and Neil Gorsuch who actually wrote this opinion and saying, when we play your game, when we use your methodology, it leads us to a liberal result in this case.
PRAVEEN FERNANDES: Thanks and you can see that grappling in the Bostock opinion, right, about what it means to be faithful. This is text. The conversation that Elizabeth had earlier about this is not about protecting subjective expectations is all about the conversation where people are talking about whether people were thinking of LGBTQ individuals in the workplace and of course you know the analysis that the Gorsuch opinion sets out says this is really about sex discrimination and seen a different way this is about saying there’s no LGBTQ exception to a sex discrimination rule that is set out very cleanly in Title VII of the Civil Rights Act of 1964. So that’s so that’s so helpful, Mark, and I’m going to bring Elizabeth back in so we can all have a conversation. I think both of you have set up such an interesting case, in some sense about what this methodology can do if it’s applied with rigor and in good faith, both by the advocates who present it before the courts and the justices were judges who are responding to those arguments. So let me get to the other part of Originalism Watch that Elizabeth mentioned, which is not only to make the positive case, but sort of to call out on its own terms places where it’s being misused, and where what we’re seeing is Fauxriginalism, not originalism, and to me, I guess when I’m thinking about this reminds me maybe a little bit like the trope in daytime television of the evil twin where an evil twin sort of comes into town. The good twin is tossed into a coat closet somewhere and all manner of mischief and damage is created. And at some point there’s a big reveal and you know, and the viewers realize “oh wait this wasn’t Kara, this was her evil twin Tara” and in some sense it’s an acknowledgement that bad things happen but it’s also trying to make clear, whatever you think, it’s not, who you think that’s responsible for this. And I think in some sense, Fauxriginalism about saying, whatever you think brought us to this result, it’s not fidelity to text and history, that brings us to this place. So you can critique something like Shelby County v. Holder and say, yes, a bad thing happened. That is a terrible decision, but just so we’re all clear. It’s not fidelity to text and history, that brings us to this place. So I thought I’d ask you like, what are the examples of Fauxriginalism that pop up to your mind that people need to understand.
MARK JOSEPH STERN: So for me, the best example is Heller v. District of Columbia and this is a decision that established for the very first time an individual right to bear arms under the Second Amendment and it might as well be captioned: Let’s badly misread historical documents with Antonin Scalia. This is an example of a judge who was not trained as a historian who has no expertise or background in historical analysis, being fed selectively edited and cherry-picked documents from hundreds of years ago. And frankly, just misinterpreting them. There have been many Law Review articles that have explained all of the errors that Scalia makes in that opinion. We don’t need to go through all of them today. But one thing I will point out is that there’s been a massive undertaking in recent years to study the language at the time, the Second Amendment was ratified to learn what the actual public, meaning of bear arms was what it meant to keep and bear arms and after analyzing thousands and thousands of documents scholars have proved pretty much beyond a doubt that this phrase was always used in connection with militia service and with service in the armed forces. And that Scalia’s analysis of the words, “keep and bear arms” in Heller is just wrong from an original perspective. It’s not what the people who ratified the Constitution and the people who lived under the Constitution in 1791 thought that it meant. It’s not what they believed they were ratifying when they when they you know past the Second Amendment. And I think it’s kind of embarrassing that the Supreme Court has refused to re-evaluate the decision in Heller. And it’s left that job to lower court judges. Some on the right who are more honest than some of our conservative justices, there was a ninth circuit decision authored by the very conservative Judge Bybee, that analyzed the history of the Second Amendment in over a hundred pages actually did use real historical methodology and proved again, really beyond any reasonable doubt that the phrase “keep and bear arms” was not meant as an individual right. And certainly wasn’t meant as a right that one could carry into public that this notion that you could take your guns with you in public, that, that was enshrined in the Second Amendment is just nonsense. And so, I think whenever we have this conversation about Fauxriginalism, it’s great to start with Heller because you can go through paragraph by paragraph, Scalia’s opinion and show where he went awry and how basically pro-gun advocates, either tricked him, or deceived him, or convinced him to re-write the Second Amendment to mean something that it was never intended to say.
ELIZABETH WYDRA: Just add to that, you know, the irony, of course, is that the time in which there is a constitutional discussion about an individual right to bear arms is not around the Second Amendment. It comes when we’re talking about protecting Black Americans from racist, white militias around the time of the enactment of the Fourteenth Amendment. So if Scalia had been a better student of constitutional history he might have looked to that more than this. I agree with Mark a very flawed reading and application of Second Amendment history, which was doing something very different. You know, the idea that what we’re concerned about the Second Amendment was empowering militias, what we’re concerned about. When we finally got to a point of talking about an individual right to have a gun for defense, was about protecting against militias to try to protect individuals in this, you know, the most concerning cases, where Black Americans who were being terrorized by lynch mobs and white militias. And that was the first time we really see a discussion around having an individual right in your home, to defend your family from racist violence, you know. And that I think when you have this full understanding of the Constitution and its history, you know it leads you to things like looking at policing. Looking at the way that the 14th Amendment was intended to protect individuals, particularly black and brown and Asian American communities in the United States from racist, perpetrated by state-sponsored actors either expressly through the types of police forces they had then or white militias, who a blind eye was turned to by the state. And so you know you look into all of that, you see that you know the movement for Black lives is written into the Fourteenth Amendment. So if we’re going to talk about some of these things, let’s talk about it and its full history instead of this you know I say this word intentionally, whitewashed history of gun rights that were talking about in the Heller decision. I mean, fortunately I think you know, the good thing I can say about the decision is that Scalia rightly recognized that, no matter what history you’re looking at there, certainly are reasonable regulations contemplated throughout our constitutional history, and even Scalia’s opinion in Heller recognizes that. But I would say, you know, just to get to your question Praveen. I think one of the things that actually my colleague David Gans wrote about in our Originalism Watch series is the originalist argument against abortion rights. There was this recent opinion out of Cleveland from a Trump appointed judge and he tries to make this argument that the, that prohibition of abortion is supported by originalism and even the scholars upon whom he relies are like you got, uh, you got arguments wrong. Because as I think Justice Ginsburg, frankly did a very good job while she was on the bench of explaining. The idea that abortion rights are crucial to the constitutional protections or equal citizenship that are crucial to the idea of liberty and equality. If you can’t control your own bodily, autonomy in that most fundamental way of controlling reproduction, how can you truly be free or to be considered an equal citizen. I think that’s one area that I think is also misunderstood. And there is a strong, strong originalist case for abortion rights, and the arguments against it as we just saw in the sixth circuit opinion by Judge Bush are frankly laughable.
MARK JOSEPH STERN: Yeah. If I could just add to that too. In that opinion and in others starting with Clarence Thomas’s opinion a few years ago we’ve seen conservative judges, especially Trump appointees try to link abortion with eugenics and to claim that abortion arose out of the eugenics movement and is inextricably linked, not just eugenics, but specifically to racist eugenics, and to the concept of ethnic cleansing and I spoke with Professor Melissa Murray of NYU Law about this. She’s studied this probably more than anyone else. And again, we can say that is just objectively false. The United States, in general, did not ban abortion at the founding. Abortion bans would have been pretty unusual in the 1780s and 1790s. They really only came about after the Civil War when, in essence, white conservative lawmakers were afraid that immigrants and Black people were reproducing at faster rates than white people and wanted to prevent white women from controlling their reproductive lives to ensure that they would continue having more and more white babies to prevent some kind of demographic catastrophe in their eyes. And so this is an example where a fair and honest application of originalism flips the outcome doesn’t just debunk what conservatives are claiming but actually shows quite the opposite that from the start abortion bans have been about controlling women’s autonomy controlling their liberty and equality and equal access to society and are rooted abortion bans, are the are the actual laws rooted in racism. It’s not the liberalization of abortion that’s rooted in eugenics, it’s the banning of abortion. And this is another instance, where, you know, most of these conservative judges are not trained historians, they’re doing what we call law office history cherry-picking out a few quotes here and there pretending like this historical narrative that they craft aligns with reality. When, in reality, it’s actually sort of back formulated to fit their preferred outcome in a case.
PRAVEEN FERNANDES: It’s so useful to hear. I feel like one of the things that this conversation has done is brought to the forefront that people think conversations in some sense about a methodology are dusty or sort of academic conversations. But what you’ve said, is that, there’s a real impact about fidelity, text and understanding history in a rigorous and real way. And when it’s misunderstood or distorted, there are huge ramifications for all the issues that people care about and that impact our lives and in a very real way. I could chat with you all day but I realized that we asked you only for half an hour of your time and so I am so grateful to be in conversation with both of you. Elizabeth and Mark, thank you so much for joining us. I hope that you will participate in this ongoing conversation that that is obviously been launched by Originalism Watch and you can find out more on our website. And it’s also scrolling down on the bottom in case you need to see it there. Thank you so much for your time today.
MARK JOSEPH STERN: Thanks so much. Always a pleasure Praveen.
ELIZABETH WYDRA: Thank you Praveen and thank you Mark. And thank you everyone for joining us.