Page 62 - ACTL Journal_Sum24

From two terms ago, I think the three most important cases were Dobbs on abortion, Bruen on Second Amend- ment rights, and Kennedy on the Establishment Clause. I think all of those cases were decided substantially on Originalist grounds. The Bruen case, Justice Thomas’ opinion starts with a text and then turns to a historical assessment of what gun laws looked like in the 19th century. Now maybe you think that’s not the right approach. But I think there’s little doubt that is an Originalist opinion be- cause it uses Originalist materials to understand what the meaning of the relevant text was at the time it was adopted.
61
JOURNAL
So does it have any meaning today? We have, indeed, justices who say that they’re Originalists. Does that matter? Well, let me suggest a few cases where I think it absolutely has.
I want to start off with Gamble v. United States, a 2019 case about the Double Jeopardy Clause. The question was wheth- er a successive prosecution in state and federal court for the same offense violates the Double Jeopardy Clause. The Su- preme Court took cert on this case, I think, to find that it was a violation; because otherwise, it’s not clear why they granted cert on this. But when the case came before the court, Mr. Gamble made his case, principally on Originalist grounds. And the Supreme Court heard what he had to say and con- cluded that he had not made the case. And the opinion for the court was written by Justice Alito, but joined by the other self-professed Originalists, with the exception of Justice Gor- such. Justice Alito decided the case on Originalist grounds that successive prosecutions by different sovereigns was not understood to be a violation of the double jeopardy clause at the time that the amendment was adopted. I think this case was decided because the Originalists materials didn’t support Mr. Gamble‘s claim.
Moore v. United States is a Sixteenth Amendment case. The question was whether income tax under the Sixteenth Amendment includes a realization requirement; that is, you actually have to get the money before you have to pay taxes on it or whether you can be taxed on the unrealized gains. I’m not a tax lawyer; I don’t have any idea what the right answer to this is. But the arguments in this case are being made on Originalist grounds, and I think the decision will come on Originalist grounds.
Originalist decision. One criticism of the Dobbs case is that it relies on the Due Process Clause without really explaining what the original meaning of the clause is. The Supreme Court bound itself into applying the Due Process Clause as the foun- dation of fundamental rights under the Fourteenth Amend- ment. I think that was wrong; I think most people think that’s wrong. I think most people think that the rights come from the Privilege and Immunity Clause, not from the Due Process Clause. But I don’t think that affects the bottom line: The ques- tion of whether we find rights to have been widely understood at the time that the amendment was adopted. And I think ap- plying that methodology, the court found that there was no understanding of an abortion right at the time it was adopted.
I’m not saying that Originalism matters in every case. Prec- edent matters in a lot of cases and judges will sometimes do what we all do, which is look at the result we’d really like and then try and figure out how to get there. But what Original- ism does is offer some constraint on judges who profess to be Originalists and then we, as lawyers, can say this is the original meaning and you must follow it, even if you prefer a different outcome because that’s the way the Rule of Law works. That’s the aspiration [of] Originalism: to make the Supreme Court, at least a little bit, more about law.
Professor Eric J. Segall:
I want to make a few points in response to that.
First, regarding Mike’s caveat about precedent fitting into Originalist methodology: I think we should question that if there’s so much non-Originalist precedent out there, which there is, then maybe those justices didn’t even think Original- ism was the way to go.
A second point, more importantly, is that Originalism abso- lutely began in the 1960s and ‘70s as a reaction to Roe and Miranda and the idea that the Warren court was viewed as so excessive. And then Ronald Reagan and George H. W. Bush had twelve years of Republican judges. After those twelve years – this is not a partisan statement, this is a descriptive statement according to the most important academic Origi- nalists, people like Randy Barnett and others – Originalism as a constraint went out the window. If Randy Barnett were here, he would say the purpose of Originalism is not con- straint; it is to get it right, whatever that means.
Justice Scalia once said, “I’m an Originalist but I’m not a nut.” That’s a direct quote. He was referring to Justice Thomas. Jus- tice Thomas is the strongest self-identified Originalist proba- bly in American history. Justice Thomas’ opinion in Bruen is the most anti- Originalist opinion in American history. I want
In Kennedy about Free Exercise, that case itself didn’t say a whole lot about Originalism, but it relied on earlier cases, which found that whatever the Establishment Clause means, it doesn’t mean that incidental prayers by government officials are unconstitutional. And we know that because if you go back to the time that the Constitution was adopted, these prayers were quite common as expressed by Justice Scalia in his dissent in a case called McCreary, which Kennedy largely follows.
And then Dobbs on abortion rights. This case is complicated be- cause there’s precedent that made it difficult to do a ground up