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.
Is Originalism just a pretext for conservative ideology? Are Originalist judges activists by
definition? 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.
What does “judicial deference” mean? 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 the conclusion that a conflict exists, then you need to follow the higher law.
What about judicial restraint? Is restraint always the opposite of activism?
What do these terms mean for a judge? 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. Can you give us any examples of
judicial deference where a court did not exercise proper judicial engagement as you’ve described it?
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.
Is Originalism a truly neutral framework for the judiciary? 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.
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.
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