Appointing Expert Historians in Second Amendment Cases

Second Amendment law is in a strange place right now. The Supreme Court's ruling this past summer in New York State Rifle & Pistol Association, Inc. v. Bruen struck down New York's licensing scheme for the concealed carry of firearms. More dramatically, though, the opinion rejected a consensus approach that lower courts had adopted to test the constitutionality of firearms restrictions. Rather than subject these laws to varying degrees of scrutiny (determining the government interest at issue and whether the law was sufficiently tailored to achieve that interest), the Court instead held that the constitutionality of gun restrictions was solely a question of history and tradition:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

I've critiqued this approach to the Second Amendment at length here. To summarize my primary concerns: a focus on history and tradition forces courts out of their legal wheelhouse and into unfamiliar territory of undertaking rigorous historical analysis and attempting to analogize it to the modern day. The Bruen Court provides little guidance on how to analogize historic laws, simply stating that courts must evaluate whether they result in similar restrictions to the law being evaluated, and whether they were motivated by comparable concerns. Questions over how how far analogies may extend (e.g., how much support partial restrictions are due), how many laws are sufficient to establish a tradition, how old or recent laws must be to be relevant, are all unresolved and subjected to inconsistent analysis in the Court's own opinions.

My criticism of the history and tradition approach aside, what are lower courts to do now that this is how Second Amendment analysis is to be done. A few judges have suggested that independent experts on history may provide guidance, acknowledging that courts and attorneys lack the expertise to do so. Judge Carlton Reeves, for example, ordered the parties to a dispute over the constitutionality of a gun restriction to indicate their position on whether a consulting expert should be appointed. As it happens, both parties opposed the notion, with the United States raising concerns over how expensive such an approach would be if applied on a wide basis. This concern is unconvincing. The Supreme Court has ruled that gun restrictions must now be evaluated against history and tradition, and judges and lawyers tend not to be trained historians. If engaging in rigorous and accurate analysis is the goal, the Court has effectively required the costly measures required to accomplish correct results.

At the Volokh Conspiracy, Stephen Halbrook argues against the employment of historical experts to advise courts on the historic landscape of gun restrictions in Second Amendment cases. There are two focal points of Halbrook's arguments. First, Halbrook raises concerns over biased experts. Second, Halbrook argues that it is courts that are required to determine what the law is--not experts, and that appointing experts would upset this balance. There are problems with both of these arguments, and Halbrook's argument as a whole is a good example of those arguing for purportedly neutral approaches to constitutional interpretation doing so out of a desire for specific outcomes rather than accuracy or neutrality.

Halbrook starts by with an anecdote of a scholar who engaged in fraudulent Second Amendment research--suggesting that experts appointed by courts may end up engaging in similar analysis:

Turns out that Michael A. Bellesiles, author of Arming America, fabricated sources, distorted facts, and committed fraud. The Bancroft Prize was rescinded and Emory University fired him. But some judges, professors, and activists had welcomed his thesis with open arms because he attacked America's "gun culture" and derided the right to bear arms. A Ninth Circuit opinion relied on him in support of its "collective rights" holding about the Second Amendment, but the embarrassing cite was removed after the scandal broke. Until then, Bellesiles would have been the perfect candidate for a court to appoint as an "expert" on history.

As for experts who have not engaged in such flagrant misconduct, Halbrook suggests that they are almost just as bad:

Judge Reeves went on to quote Patrick Charles as stating that adherents of the Standard Model of the Second Amendment, who read the right to have arms as an individual right, as "fail[ing] to adhere to even the most basic norms of historical objectivity and methodology." And he quotes Saul Cornell, writing in Slate, accusing the Court in Bruen of having "cherry picked" the historical record. Both Charles and Cornell are partisan historians who oppose Second Amendment rights in their writings and amicus briefs.

. . . 

If the parties do submit expert reports in Second Amendment cases, judges should treat them for what they essentially are—amicus briefs. And courts should be particularly wary of "experts" whose views have repeatedly been rejected by the Supreme Court. If the expert joined an amicus brief supporting the government in Heller, McDonald, or Bruen, that is a pretty good sign the expert's views are out of step with the Supreme Court.

Halbrook does not take a similarly critical approach to how courts are supposed to analyze history and tradition without appointing experts. Were he to do so, his argument would fall apart. Halbrook's critique is based on the possibility that experts will engage in incorrect or biased analysis. But this possibility becomes a guarantee absent expert analysis--in which only the submissions of attorneys advocating for their clients form the basis of what is supposed to be a thorough and balanced analysis of the relevant history.

Additionally, Halbrook's view of what would render an expert's analysis untrustworthy is revealing. He suggests that any analysis that is out of step with the Court's recent opinions on the Second Amendment are unreliable--particularly in the last paragraph of his analysis. It seems that Halbrook's metric for accurate historical analysis is what the Court has declared the history to be, rather than what the history actually was. Under such a formulation, expert opinions are only reliable to the extent that they comport with the rulings of the non-historian members of the Court's majority in prior Second Amendment cases. This is not only a bonkers approach to evaluating historical analysis, but it is designed to guarantee outcomes overturning restrictions on gun possession.

What about the second argument, that it is the province of the Court, rather than experts, to determine what the law is? Halbrook writes:

Both Heller and Bruen came to the Supreme Court on decisions granting motions to dismiss. They were decided on the basis of the complaints and the parties' briefs with no factual development. The Supreme Court was urged to decline to rule on the ultimate merits in both cases but rather to send the cases back down to the lower courts for more development—in Heller by the U.S. Solicitor General and in Bruen by the N.Y. Attorney General. But the Court rejected the suggestion in both cases, and instead conducted its own analysis of the relevant historical materials to determine the scope of the Second Amendment.

This was proper because historical information does not consist of the types of facts that are determined in a trial through competing witness and expert testimony. In legal jargon, historical facts are "legislative facts," not "adjudicative facts." As Judge Posner put it in Moore v. Madigan (7th Cir. 2012), striking down Illinois's ban on carrying firearms outside the home, "Only adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of the Illinois gun law." That is going to be true in pretty much every Second Amendment case after Bruen, as the historical inquiry the courts are required to undertake is purely a matter of legislative facts. As Bruen noted, the historical inquiry "that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge."

Halbrook and the Court may deem historical facts as legislative facts that need not be developed by the parties, but this bare proclamation does not undo the reality that history, tradition, and the relevant context can be complicated and require a fair amount of work and training if accurate results are to be obtained. For example, the Bruen majority distinguished England's Statute of Northampton as largely irrelevant as an analogous historical restriction on the carrying of firearms. One of its bases for doing so was to note that the statute, in its early days, applied to the carrying of armor and larger weapons like halberds. Knives, which the Court contended were most analogous to modern day handguns, were not similarly restricted. In doing so, though, the Court overlooked a great deal of relevant historical context. Knives, while sometimes used for combat and self-defense, were also highly functional--especially in the medieval era. As an example of one overlooked function, the Statute of Northampton was enacted hundreds of years before the fork was introduced to England--before then, knives played a central role as a utensil. The Bruen majority appears to have overlooked all of this context, resulting in a misleading claim of a close analogy between handguns and knives. (For citations and other examples of the Bruen Court's failure to account for the complexity of historical analysis, see my article here).

This is only one example of how it is misleading to treat the original meaning of constitutional provisions, or the history and tradition of gun restrictions, as nothing more than legislative facts. To engage in historical analogizing, one must be aware not only of the text of prior laws, but the context of their enactment, how they were applied, and what their text meant to those who were alive at the time. This is a complex, fact-intensive undertaking, and simply declaring this to be a simple task that judges can undertake at the pleading stage does not change this. Instead, such arguments and proclamations are a tactic designed to draw attention away from the complexities of the approach the Court has adopted.

Arguments like Halbrook's should raise alarms to anyone who is seriously committed to the task of interpreting the Constitution based on its original meaning or in a manner that aligns with history and tradition. Under the guise of neutrality and the illusion of simplicity, advocates like Halbrook urge a method of interpretation that is designed to accomplish specific policy outcomes. The history and tradition approach has many problems. But if it is the approach that courts must take, there may be ways to make it better. Appointing experts is one such approach. Those who oppose this proposal are not concerned with accuracy--instead they treat the Court's precedent as historical gospel and seek only to perpetuate desired policy goals. 

Strategic Originalism

About a week ago, Ruth Marcus at the Washington Post wrote an essay attacking originalism. Her critiques are varied and are digestible versions of arguments made at length in the academic literature. Those looking for an approachable version of a variety of arguments critiquing originalism would do well to read her entire essay.

At the National Review, Ed Whelan responds to Marcus's criticism of originalism. Both essays involve multiple levels of critiques and responses, and I won't rehash the line-by-line debate. Instead, I will first address an exchange over whether originalism is guilty of making false promises about the objectivity of the Constitution's meaning and how Whelan's response fails to engage with Marcus's critique. I then address a brief response to the exchange by Michael Ramsey which exemplifies a common misconception of the implications of progressive originalist scholarship, From there, I address the question of whether the strategic use of originalism by progressive scholars and commentators is worthwhile. 

Originalism and Clear Answers

In Michael Ramsey's summary of Whelan's response to Marcus, he highlights the following portion of Whelan's article that he thinks calls out the "most important" flaw in Marcus's critique:

Marcus contends that originalism “offers the mere mirage of objectivity and therefore of constraint” and is a “fundamental[ly] futil[e]” enterprise. She quotes with approval the notion that “For most constitutional provisions, there is no ‘original meaning’ to be discovered.”

I have no quarrel with the proposition that there are many constitutional questions to which originalism cannot provide a clear answer. Nor, I think, do other originalists. But that is no reason to dismiss originalism when it can provide a clear answer. And on most of the hot-button questions of the past several decades (e.g., abortion), originalism clearly rejects the favored progressive position.

Originalists recognize the incompleteness of originalism as a judicial methodology, and they differ on important questions such as what level of certainty as to constitutional meaning is needed to decline to enforce a statute. I, for example, have defended a presumption of constitutionality, while many libertarians propose a presumption of unconstitutionality. There are also lots of methodological issues on which originalists hold various views. Marcus could fairly have cited this lack of consensus as a flaw in originalism.

It's worth including the precise language of Marcus's original argument that prompts these responses:

The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.

Whelan's response fails to engage with Marcus's original point. While Whelan concedes that there may be instances where originalism doesn't provide a clear answer, it is not clear how much of a concession this is. And, two sentences later, Whelan seems to limit the scope of his concession so that it does not cover "most of the hot-button questions of the past several decades." For these, Whelan claims, "originalism clearly rejects the favored progressive position."

In my not-so-distant prior career as a litigator, the word "clearly" is something I always searched for when I was preparing an opposition or reply to an opposing party's brief. This term tended to signal the most dubious claims. This is the case here. In a single sentence, Whelan waves aside libraries' worth of debate between legal scholars and historians over the original meaning of constitutional provisions at the heart of disputes over the last few decades. Whelan also fails to engage with the deeper point: history is a complex undertaking, and a thorough investigation into the original meaning of the Constitution may reveal that there is no clear original meaning. If this is the case, originalism does not seem appropriate to resolve a dispute where the Court must rule on a single meaning.

Marcus also critiques the methodology of corpus linguistics, in which lawyers and judges search databases of documents from a particular time period to determine how words and phrases were commonly used. Her broader point is that the methodology is an example of her overall argument: that uniform historical meaning is uncertain and potentially nonexistent. Whelan also fails to engage with this, focusing instead on Marcus's examples of how corpus linguistics being misapplied. He argues that this is an argument "for using corpus linguistics cautiously, not an argument against originalism." This ignores the larger point that corpus linguistics demonstrates originalism's indeterminacy. But to respond directly to Whelan's assertion, I've argued before that it's relevant to point out instances where corpus linguistics is misapplied. If this is a common mistake, then it risks a great deal of shoddy analysis under the guise of originalism--something that should raise more concern for someone like Whelan than he expresses in his response.

(This same point applies to theories of interpretation more generally as well, as I've begun to argue here, but I will leave that point aside since this post is already becoming too long, and because I'll be saying much more on this in a future article.)

Strategic Originalism

The last issue I want to address in this already lengthy post--and the issue that inspired me to write this post in the first place--is prompted by the remark that Ramsey includes after quoting Whelan's response to Marcus:

I agree with all of this, and I'd add that many center-left commentators and legal scholars are very willing to make originalist arguments when they perceive that the original meaning helps their preferred view (as it sometimes does).

Ramsey does not explain the implications of his remark, but he seems to be suggesting that those on the left are conceding the legitimacy of originalism as a theory of interpretation by resorting to originalism when it serves their desired political ends. This inference is dubious because originalist arguments may be made in a strategic manner to appeal to a conservative Court. Those making the arguments may not agree with their methodology, but such arguments may have a slightly better chance of getting the Court's attention than a straight up critique of the Court's interpretive methodology.

In the past I tended to think that progressive originalist commentary and scholarship was of little use and caused more harm than good to progressive policy objectives. Ramsey's point illustrates one of the main reasons I held this view: progressive scholarship employing originalist methodology could be characterized as legitimizing originalism. I did not agree with this inference, as I believe it is not only possible, but common, to assume certain conditions for the sake of argument and then to argue against a certain conclusion on those terms. But, as Ramsey's remark here demonstrates, this distinction is frequently overlooked for the purpose of achieving a "gotcha" argument against progressive scholars and commentators who also disapprove of originalism more broadly.

Moreover, I believed then (as I do now) that history and tradition is often skewed against progressive outcomes. Many of the Constitution's framers owned slaves. Women's rights were limited at the time of the Fourteenth Amendment's passage, and many legal regimes denied women the legal status and abilities held by men. Originalism may not provide clear answers on the meaning of vague and ambiguous constitutional provisions. In the face of this uncertainty, interpreters may give history and tradition an outsized role in constitutional interpretation. Indeed, the Court seems to have leaned into this approach in its last term, as I detail here. In cases involving the interests of women, racial minorities, and other groups who have historically been subjected to oppressive legal regimes, an approach grounded in history and tradition will tend toward negative outcomes for these groups. This isn't a fair playing field, and originalist suggestions that progressives simply must engage more at the level of historical debate are therefore unconvincing.

Despite all of this, my views today of the value of progressive originalist arguments and scholarship are now more nuanced than they once were. While it is easy for a scholar or commentator to take a stance on little more than principle, considering how commentary and scholarship may ultimately be employed in practice remains important. Broad theoretical arguments have their place: they may inform the public and politicians of the state of constitutional interpretation and, to the extent that things are unsatisfactory, provide arguments for reform. 

But scholars and commentators shouldn't forget that there are attorneys who need to make arguments before the Court--a Court with a supermajority of justices who are either self-proclaimed originalists or who have at least signed onto opinions written in a purportedly originalist manner. These advocates before the Court don't have the luxury of high-level theoretical arguments. A claim that originalism is a flawed method will fail to move these justices. Instead, these advocates' best hope of success (admittedly, a very slim hope) is to argue on the justices' level. It is here that progressive originalist scholarship and commentary may be of use. A cottage industry of originalist scholars are at work parsing out the original meaning of constitutional provisions. Maintaining an ideological balance in these scholarly endeavors makes it less likely that the output of this area of legal academia will remain politically one-sided. While originalist scholarship that reveals outcomes that align with progressive policy goals may not end up convincing conservative justices, it at least lends additional support to advocates arguing before them.

Circling back to Ramsey's point about center-left commentators' and scholars' originalist arguments: these scholars may well disagree with originalism as an interpretive methodology but acknowledge the practical reality that those arguing before the Court need to makes arguments at the originalist level. Researching, writing, and commenting on historical evidence of original meaning that favors progressive outcomes is therefore not a concession that originalism is a good, or even legitimate, approach to interpretation. Instead, the work is motivated by a pragmatic acknowledgment of the realities of litigating before a conservative Supreme Court.

One may object and argue that I'm claiming that scholars are hacks. I seem to be assuming that conservative scholars will seek out conservative originalist conclusions, while progressive scholars will strive for liberal originalist conclusions. This seems to require an unrealistic amount of politically motivated academic dishonesty. Such an objective does not accurately characterize my views.

First, political bias in research outcomes will likely be unintentional in many instances. Many (though not all) legal scholars lack sufficient expertise as historians to engage in the rigorous and technical investigation necessary to accurately survey historical evidence. As a result, unconscious biases may color their analysis. These range from nonpartisan biases of applying modern legal frameworks or usages to the reading of historical texts. But they may also include interpreting a vague or ambiguous piece of evidence in a manner that ends up supporting a desired conclusion. 

Second, journals themselves may encourage conclusions that align with particular political ends. Some law journals pride themselves on publishing conservative scholarship. Others are the opposite, encouraging submissions that align with progressive policy positions. As a scholar's investigation begins to uncover evidence that leans in a certain direction, that scholar's desire to be published in one of these journals, or to associate with a particular audience, may end up motivating the scholar to seek out more of the same evidence rather than taking a more balanced approach to the investigation.

Third, scholars who are directly motivated by their political goals may end up implementing these political preferences in a manner that does not involve intellectual dishonesty. A progressive professor, for example, may come to believe after some research that the original meaning of a constitutional provision leads to conservative outcomes. The professor may decline to continue that research or publish the results of that investigation in the interest of avoiding giving ammunition to political opponents. Such a strategy involves political motivation and may raise questions over intellectual honesty and selective publications, but it seems distinguishable from a scholar who ignores contrary evidence or makes false claims in support of a desired conclusion.

My opinion of progressive originalist scholarship and commentary is nuanced. While I have come around to acknowledging its importance for those arguing before the Court, I suspect that even accurate and exhaustively researched progressive originalist work makes little difference to the conservative justices and may be crowded out by shoddy work written and published by those lacking sufficient historical expertise. Additionally, remarks like Ramsey's suggest that this work may be coopted to support claims of progressive acceptance of originalist methodology. Despite all of this, strategic originalism has its place in progressive legal scholarship and advocacy. And while this work may not influence the justices presently on the Court, it may serve as a basis for changing Constitutional law in the decades to come.

Bruen's Historical Tradition Approach and Bans on Gun Possession by 18-to-20-Year-Olds

Yesterday, the United States District Court for the Northern District of Texas issued a ruling on the parties' motions for summary judgment in Firearms Policy Coalition, Inc. v. McCraw. At issue was the constitutionality of Texas's law prohibiting 18-to-20-year-olds from carrying handguns under the Second and Fourteenth Amendments. (I initially learned of this case from Steve Vladek. Jake Charles has some interesting initial analysis of the opinion in a Twitter thread here.)

This case follows on the heels of the Supreme Court's decision in New York Rifle & Pistol Association, Inc. v. Bruen, where the Court overturned New York's handgun licensing scheme and announced a new, "historical tradition" approach to determining the constitutionality of gun restrictions. This approach requires courts to first determine whether restricted activity falls within the scope of the Second Amendment's text. If so, governments may only restrict the activity if it is consistent with a "historical tradition" of analogous restrictions on the activity.

I criticized the Bruen Court's historical tradition approach a couple weeks ago in a blog post, and I go into even greater detail in my criticism in a draft article here. To summarize, the Bruen Court provided virtually no guidance for determining what historical restrictions are analogous to present-day restrictions, or how much historical evidence is sufficient to establish a tradition of analogous restrictions. This allowed the Court to pick and choose what historical evidence it could use, and the Court took advantage of this discretion by applying a restrictive approach to historical evidence and rejecting numerous historic gun restrictions as inapposite. The Court also reached inconsistent conclusion about the number of restrictions necessary to establish a historical tradition--suggesting that three restrictions were insufficient to demonstrate a history of restricting firearm carry, but concluding that two restrictions were likely sufficient to establish a history of restricting guns from "sensitive places."

Bruen's historical tradition approach, while seemingly neutral, allows courts to impose their discretion throughout the analysis by choosing what history is relevant and choosing how much historical evidence is enough to establish a conclusion. We see this discretion on full display in yesterday's Firearms Policy Coalition ruling.

The court begins by determining that the carrying of guns by 18-to-20-year-olds falls within the text of the Second Amendment--concluding that people under the age of 21 fall within "the people," identified in the Second Amendment's, "right of the people to keep and bear arms." I won't go into much detail on this initial part of the analysis, as my focus is on the historical tradition analysis that follows. But the court's analysis appears to support Second Amendment challenges to laws restricting the possession and carrying of firearms by minors. The court notes that constitutional rights "were not generally tied to an age of majority" at the founding, noting that "the First and Fourth Amendments applied to minors at the Founding as they do today." (p. 18, internal quotations omitted). The court concluded that this logic applied to the Second Amendment as well, finding that at the time of the founding "[t]he militia was composed of those that had yet to attain the age of majority." (p. 18). This seems to open the door to constitutional challenges by those under 18 years of age by confirming that they are part of "the people" protected by the Second Amendment. Should other courts follow this logic, governments will need to demonstrate a historical tradition of gun restrictions targeting minors.

As for the historical tradition analysis, the District Court, like the Bruen Court, takes a restrictive approach to Texas's evidence of historical restrictions on the carrying of firearms by 18-to-20-year-olds. The Court rejected examples of founding-era laws that restricted the storage of gun powder, regulated gun use "in the context of militia service," and prohibited the use of firearms "on certain occasions and in certain places." (p. 16 (internal quotes omitted)). These restrictions, the court concluded, were not sufficiently analogous because they did not constitute as absolute of a restriction as the Texas law. The court also rejected historical prohibitions on gun possession by felons and the mentally ill, finding that those restrictions involved individualized determinations that resulted in restrictions on Second Amendment rights.

Most notably, though, the District Court rejected evidence of state laws "at the end of the 19th century" that restricted the purchase or use of firearms by those under the age of 21. (p. 18.) The court noted that the earliest of these restrictions dated back to 1856. The court acknowledged that:

the historical record before the Court establishes (at most) that between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the ability of those under 21 to "purchase or use firearms." And by 1923, three more states joined with similar laws. But the record stops short and does not show any "historical analogs" from the Founding Era. (p. 18, internal citations omitted, emphasis added).

The court acknowledged that this raised a question over what history the court should consider. While the Second Amendment was ratified in 1791, the Fourteenth Amendment--the vehicle for incorporating the Second Amendment's protections against the states--was ratified in 1868, well after the first of the under-21 restrictions that the court acknowledges. It therefore seems that if "historical tradition" analysis is to account for the historic context of the Fourteenth Amendment, these 23 restrictions--enacted before, or shortly after the Fourteenth Amendment's ratification--are significant evidence in favor of a historical restriction on gun use or purchase by those under 21 years of age.

The District Court's approach to this issue is mixed. After acknowledging the "ongoing scholarly debate" over whether the Fourteenth Amendment's ratification imbued the Second Amendment with new meaning, the Court quotes language from Bruen (which the Court had quoted from its earlier Heller opinion) suggesting that evidence from the post-Civil War era did not provide insight into the meaning of the Second Amendment. But the language the court quotes is not applicable. To the extent that the Heller Court gave less weight to reconstruction-era evidence, this was because the Heller Court was dealing with a restriction in the District of Columbia, and therefore did not need to consider whether the Fourteenth Amendment incorporated the Second Amendment against the states. The District Court also cited Justice Barrett's concurrence in Bruen, but only to the extent that she stated that the Court had not endorsed "freewheeling reliance on historical practice [from] the mid-to-late 19th century to establish the original meaning of the Bill of Rights." (emphasis added). Again, this quote only bears on interpreting the meaning of the Second Amendment to the extent that it is to be fixed at the time of the founding. While the Bruen Court suggested that the scope of the protection of enumerated rights is fixed at the time of the founding, it explicitly avoided answering this question. 

Perhaps recognizing this uncertainty, the District Court concluded that even if it were to consider Reconstruction-era evidence, Texas still failed to prove a historical tradition of restriction. Here, the Court takes advantage of Bruen's failure to set forth any guidance on how much evidence is sufficient to establish a historical tradition of a restriction on gun rights:

At most, Texas's historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on "the purchase or use of firearms" for those younger than 21. Based on Bruen's guidance, however, the Court concludes these laws cannot sufficiently establish that a prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent with this Nation's historical tradition of firearm regulation. (p. 19).

First, this framing suggests that the restrictions were enacted later than they actually were. As the court notes earlier, 20 states had enacted restrictions on the purchase or use of firearms by those under 21 between 1856 and 1892. By highlighting 1923 only, the court makes it seem like these laws arose later in time than they actually did. Second, it is a mystery why the court emphasizes the words, "prohibition" and "regulation." It does not argue that the difference in terminology is of any relevance to the constitutional analysis.

Most notably, though, the conclusion that 22 restrictions is not enough to establish a historical tradition is an extremely restrictive approach to the historical evidence. Bruen suggested that three examples were insufficient, but this is a far cry from the 22 examples in the Texas case. The District Court's conclusion that no historical tradition existed despite 22 examples of historic restriction places a near-insurmountable burden on governments seeking to demonstrate traditions.

It is also worth noting the Supreme Court's approach in framing historical evidence of abortion restrictions in its Dobbs opinion, where it concluded that historic restrictions on abortion in some circumstances were not evidence of a right to abortion in other circumstances. There, the Court argued that the lack of evidence of restrictions on particular behavior does not imply a historic understanding that the behavior was protected by the Constitution. That logic may be applied to the Texas case. For those states in the Reconstruction Era that did not enact restrictions on gun purchase and use by those under 21 years of age, they may have believed they could have enacted those restrictions and simply have chosen not to do so.

Firearms Policy Coalition, Inc. v. McCraw illustrates Bruen's lack of guidance for lower courts. This lack of guidance leaves courts with a substantial amount of discretion to pick and choose relevant historical evidence and to determine the sufficiency of evidence necessary for governments to meet their burden in seeking to restrict gun use and possession. The court here took full advantage of that discretion in concluding that 22 historic restrictions were not enough to establish a tradition. If such a restrictive approach survives appeal, this case could be the first of many instances invalidating longstanding restrictions on gun purchases and possession. 

Choosing History

Will Baude has written a column in the Washington Post, entitled Of Course the Supreme Court Needs to Use History. The Question is How.

Baude discusses the Supreme Court's use of history in its most recent term. He argues that using history is unavoidable:

History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

This use of history, as Baude notes, led to some recent dramatic decisions. In Dobbs v. Jackson Women's Health Organization, the Court ruled that there was no constitutional right to abortion, overturning Roe v. Wade, and causing abortion becoming illegal in numerous states due to trigger laws. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court overturned a New York statutory scheme that had been in place for more than a century that required people to prove good cause in order to obtain a license to carry concealed firearms.

In Bruen, the Court first held (after about a page of analysis with no historical discussion) that the Second Amendment protected a right to carry firearms in public--extending the scope of the Second Amendment's protection beyond the scope of the home. The Court then spent most of its opinion applying a "historical tradition" approach to the constitutional interpretation. In Bruen, this meant that the government could restrict the Second Amendment right to carry firearms only if it could show a historical tradition of analogous restrictions on the right to carry firearms in public. The Court considered a host of laws, cases, and commentary, ranging from English law and common law, to colonial-era restrictions, to laws at the founding, during reconstruction, and beyond. Laws that happened to support broad restrictions were outliers, the Court argued. Old English authorities, like the Statute of Northampton, were outdated. Many of the founding-era and reconstruction-era restrictions were too narrow to be analogous--they restricted carrying firearms for certain purposes only, like causing terror and disruption. By choosing what historical laws were analogous, the Court was able to shape the historic record to fit its desired outcome: that there was no tradition of restricting the carrying of firearms. New York's law therefore had to go.

The next day, in Dobbs, the Court engaged in similar analysis to determine whether there was a historical tradition of permitting abortion. No such tradition existed, the Court claimed, citing "English cases dating all the way back to the 13th century" (despite its earlier discrediting of the Statute of Northampton as too old) and citing a host of historic restrictions banning pre-quickening abortion (that is, abortion before movement of the fetus could be detected--often at a point between the 16th and 18th week of pregnancy). These pre-quickening restrictions--restrictions that prohibited abortion in certain circumstances--are similar to many of the historic restrictions on carrying firearms that the Court rejected in Bruen--gun restrictions only banned carrying firearms in certain circumstances. In Dobbs, however, the Court cited these cases to support its conclusion that there was no historic recognition of any right to an abortion. The Court argued that just because pre-quickening abortion "was not itself considered homicide, it does not follow that abortion was permissible at common law--much less that abortion was a legal right." (Dobbs, p. 2250). Using this logic (logic that was notably absent in Bruen) The Dobbs Court cited partial abortion restrictions as evidence of a lack of a historical tradition of recognizing abortion rights. 

This closer look at these opinions reveals that the Court is not so much "doing" or "using" history as Baude suggests, but "choosing" history. Looking up historical evidence and parsing out historic laws and their development is a small, and seemingly insignificant part of the Court's analysis. The real work happens when the Court decides whether evidence is analogous to a present claimed right or restriction. 

The Court provides virtually no guidance or rules for this process. The Court doesn't say how many historical laws and regulations are necessary to establish a tradition, how old examples can get before they are too old, or where to draw the line between founding- or reconstruction-era laws that clarify or liquify meaning versus those that are unacceptably modern. This failure to provide guidance isn't an accident. It gives the Court the flexibility to treat the evidence in a manner that supports its desired conclusion. For example, in Dobbs, the Court cited commentaries from as far back as the 13th century as evidence of historic abortion restrictions. But the day before, in Bruen, it dismissed the Statute of Northampton (enacted in 1328 and in place for hundreds of years thereafter) as inapplicable, in part because they were unacceptably ancient. 

Another example: in Bruen, the Court dismissed colonial-era examples of restrictions on carrying firearms, stating that the respondents had only identified three such regulations and that "we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation." (Bruen at 2143). Earlier in its opinion, though, the Court asserted that restricting firearms in "sensitive places" was consistent with historical tradition--despite citing sources that were only able to identify two examples of colonial and founding-era restrictions on carrying firearms in sensitive places. (Dobbs at 2133, citing an article by Kopel & Greenlee and an amicus brief that only identify Maryland laws forbidding carrying guns in the houses of the legislature and a Delaware constitutional provision prohibiting guns in polling places). When it comes to restricting firearms, three examples are not enough to establish a historical tradition. But when it comes to reaffirming the sensitive places analysis that Justice Thomas had previously signed onto when he joined the Court's opinion in District of Columbia v. Heller, two examples were sufficient.

Baude argues that if critics of the Court want to make a difference, they're going to "have to make the best use of history, not try to escape it." They can't be like the dissenting Justices who "engaged superficially on historical grounds." This strategy is misguided. Confronting the Court with historical evidence likely make a difference in politically salient cases--as Bruen and Dobbs demonstrate. Critics may do history, they may use history. They may set forth a slew of examples in support of their claims. But this won't make any difference to a Court that chooses history to support desired results.

Choosing history as a basis for constitutional interpretation also skews the playing field against progress and protection of disadvantaged groups. The dissenting Justices make this point in Dobbs: 

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women's liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women's rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. (Dobbs at 2324-25, Breyer J. dissenting).

What does Baude have to say to the fact that history itself is skewed due to the historic mistreatment and disenfranchisement of women and African-Americans?

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.

Baude's point about Dobbs is unresponsive. As the Dissent points out, the absence of women's voices and participation in the political process is a glaring example of how history is skewed in a particular direction--here against the interests of women. For hundreds of years, women weren't guaranteed the right to vote. They were restricted from many professions, including the law and and the teaching of law. Is it really all that surprising that the notion that the right to abortion had anything to do with the right to privacy was a relatively recent part of legal discussions over abortion law? What's more, Dobbs wasn't about the meaning of the Constitution's text. The Court's conclusion regarding the scope of Due Process was based entirely on historical laws and restrictions, filtered through the selective reliance on certain examples and characterizing other examples in a manner that rendered them irrelevant or transformed them into further support. 

Additionally, Baude's mention of historical arguments about the relevance of the right to bear arms for newly freed African Americans in Bruen rings hollow in light of the fact that substantial majorities of modern communities of color support stricter gun laws (a point that Adam Winkler raises here). Baude's argument demonstrates the point he's trying to refute. In citing the reconstruction-era need for African Americans to be armed, the Court applies the oppression that African Americans faced during reconstruction to modern circumstances. This historic violence, which was perpetuated by white communities and government officials, ends up shaping and defining the modern right to keep and bear arms for all communities, despite the opposition of modern communities of color.

Perhaps there will be occasional exceptions where historical tradition aligns with the rights of criminal defendants an unpopular groups. But historical discrimination and oppression of women, racial minorities, Native Americans, and other disadvantaged communities suggests that we are off to a rough start if we choose to look to the past to guide present decisions. Cloaking the analysis in with phrases like "original public meaning" or "historical tradition," and characterizing the analysis as "ultimately deciding . . . law, not history for its own sake" as Baude urges may obscure this reality and make the process seem more neutral. But "doing" or "using" history leaves those seeking meaningful reforms and protections for disadvantaged groups and communities at a disadvantage from the outset. 

A clarification: Parties and those arguing before the Court should, of course, do what they can to make historical arguments. Doing so will ensure that no stone is left unturned and will shine a brighter spotlight on the Court's motivated reasoning.

Criticizing the Court's methodology is preferable to attempting to meet the Court on a skewed playing field. Perhaps the Court won't listen. But making this point abundantly clear to voters and lawmakers may prompt reforms or--at the very least--urge the election of Presidents and Senators who will appoint and approve Justices who engage in alternate methodology. Critics are better off making these arguments than legitimizing flawed, skewed, malleable historical and originalist methodologies by participating in those methods themselves.

UPDATE

Those who want to read even more about this should check out my draft article on the Court's historical tradition approach in Bruen, which I just posted to SSRN. Comments are welcome!

The Present Public Meaning Approach to Constitutional Interpretation

My article, The Present Public Meaning Approach to Constitutional Interpretation will be published in Volume 89 of the Tennessee Law Review--most likely sometime in 2023. The article is here. Here's the abstract:

Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism ultimately fall flat if critics fail to propose preferable alternative to originalism. After all, it takes a theory to beat a theory.

This Article proposes an alternate theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This straightforward alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer’s recent article, Unoriginal Textualism, argued for the theory’s feasibility. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited.

This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach to constitutional interpretation is a better means of constraining judges, and leads to judicial decisionmaking that is more transparent and predictable. It also better achieves goals of democratic legitimacy by taking into account modern views on indeterminate, value-laden language in the Constitution and its amendments and by accounting for significant expansions in the right to vote since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles originalism faces, and is more likely to lead to desirable results by better accounting for present circumstances.

This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is still preferable to originalism—avoiding numerous shortcomings and critiques against originalist methodology, and preferable in light of many normative considerations that originalists claim to honor. Originalists must therefore take the present public meaning approach seriously when defending their theories of constitutional interpretation.

This article has been in the works, in one form or another, for a few years. I previously blogged about Schauer's article here, and got into some of the initial thoughts that I've since incorporated into the larger article.

At The Originalism Blog, Michael Ramsey has a brief reaction to the article:

Often, especially as to technical provisions, I think present public meaning doesn't differ that much from original public meaning, which is why (in my view) original meaning originalism is, or should be, heavily textualist. But sometimes it does, and I'm not sure of the justification for letting our basic law be determined by random changes in language. More importantly, though, I think in many cases the present public meaning isn't distinct from what one thinks the Constitution ought to mean. Consider "due process of law": does its modern meaning include "substantive" due process? That question isn't really separable from whether one thinks it should include "substantive" due process. Thus it is not really an objective test.

On the first point, I agree that there are likely many instances where the original and present meanings of constitutional provisions are the same. Age requirements for offices and the numbers of senators per state don't require us to delve into the archives to determine original meanings. But these generally are not the provisions that trigger litigation and which are front and center in modern disputes over constitutional law.

As for the justification for taking an approach that may result in "random changes in language" changing the meaning of the Constitution, a substantial portion of the Article discusses why this potential problem is: (1) generally portrayed as more dramatic than it actually is; and (2) why other shortcomings of originalism which this approach either avoids or substantially mitigates are a compelling reason to accept this cost of the present public meaning approach.

As for Ramsey's concern about this not being an "objective test," it's unclear how this objection does not apply to originalism as well. The article's suggestion is fairly minimal: rather than looking to the original public meaning of a constitutional term or provision, judges, lawyers, and the public should look to the present public meaning of the term or provision. Apply this to a phrase like "due process of law." The definition of this term is not immediately apparent. One might argue that this indeterminacy is not a product of present or original meaning, but the phrase itself--it's a loaded term.

Originalists will likely respond that the original public meaning of "due process of law" is narrow and technical, and that once one gets into the weeds of historic meaning, what seems to be a loaded or indeterminate phrase can actually be parsed out with a fair degree of certainty. Lawrence Solum and Max Crema have recently posted a forthcoming article arguing precisely that. From the abstract:

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Say that Solum and Crema's argument is correct. This doesn't change their observation at the outset: "The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text." If the modern meaning of "due process of law" does include substantive due process, then that's the meaning. Seems fairly "objective" to me. 

And it's unclear how originalism is more "objective" than the present public meaning approach. Indeed, if one can establish that substantive due process is not a part of the original public meaning of "due process of law," then the choice to proceed with an originalist interpretation may well be motivated by the goal of reading that phrase to exclude substantive due process. This does not appear to be a particularly objective approach either.

"Objectivity" aside, the present public meaning approach is appealing in other ways. As Solum and Crema's article demonstrates, if they are right about the original public meaning of the Due Process of Law Clause, then "almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective." A strong originalist approach to constitutional interpretation would result in an extensive overturning of precedent, leading to legal upheaval. Moreover, the present public meaning approach makes the task of interpreting the Constitution more democratic--it employs meaning based on what America today looks like, rather than the unrepresentative America of the founding, where women and African Americans lacked the right to vote. And this approach requires judges to be more up front with their reasoning. Hiding goal-oriented decisions behind a haze of selective historic citations is no longer an option. Even if there is a lack of objectivity, the nature of the present public meaning approach makes it more likely that this will be apparent to the public.

Ramsey's brief remark does not lend itself to an extended, in-depth response, and I look forward to seeing if he and others have more to say. The version of the article that is currently online will be updated to incorporate at least some additional discussion of potential objections--in particular, I will be addressing likely objections from Christopher Green based on what he discusses in this article. Work, an impending wedding, and career moves have delayed these revisions, but they will be coming soon! In the meantime, comments are welcome!

The Opaque, Incomplete Corpus Linguistics Analysis in the Mask Mandate Ruling

As virtually all news outlets have reported, Judge Kathryn Kimball Mizelle of the United States District Court, Middle District of Florida, recently struck down the CDC's requirement that people wear masks in certain settings, including plains, train stations, busses, and other public transit settings. The ruling is here. The case is Health Freedom Defense Fund, Inc. v. Biden.

Reaction to the ruling has been swift. Most of the commentary is an early phase, with initial reactions widespread on Twitter. For some initial, detailed discussion, Ilya Somin writes about the opinion here, suggesting that it is more defensible than critics claim, but that it may still be vulnerable to being overturned on appeal. The Wall Street Journal's editorial page writes favorably of the ruling here. The Washington Post has dueling takes for and against the ruling. 

More undoubtedly will be written as the days go on and as commentators parse the 59-page decision. Initial reactions suggest that the textualist methodology employed by the court is lacking. (See, e.g., here and here). I want to focus on one portion of the analysis: the court's use of corpus linguistics methodology in support of its conclusion.

I won't delve into the intricacies of the dispute and all of the arguments made by the parties and addressed in the ruling. In brief, the court addressed whether 42 U.S.C. § 264(a) was a sufficient basis for the CDC's mask requirement. The court concluded it was not, finding, among other things, that section 264(a)'s grant of power to provide for "sanitation" did not apply to requiring masks.

In reaching this conclusion, one method the court employed was corpus linguistics--a method in which databases of documents and texts are searched for instances in which words and phrases are used. In theory, one trying to determine the meaning of a word or phrase can type that word or phrase into a corpus linguistics database and examine the instances in which that word or phrase is used across a wide variety of texts. In doing so, patterns may emerge demonstrating multiple usages, common trends in meaning, and other information that may aid in determining the definition (or definitions) of a term. This method of interpretation has gained steam in recent years, particularly in originalists circles where it is hailed as a groundbreaking method for determining the original public meaning of constitutional provisions. (See articles by Lawrence Solum and Thomas Lee and James Phillips advocating the use of corpus linguistics in the originalist context). As I've noted in recent work coauthored with Alexander Hiland, this methodology raises a fair share of concerns, including a lack of transparency as to how a judge undertook the corpus linguistics analysis. The corpus linguistics analysis in Judge Mizelle's opinion demonstrates that this concern is well-founded.

Here's the excerpt of the ruling addressing corpus linguistics (from pages 17-18 of the ruling):

Customary usage at the time agrees. One method to assess the ordinary meaning of a term is to search a database of naturally occurring language. A search returns the desired word as well as its context and, with a sufficient sample size, search results permit inferences on how a word was used. This method is known as corpus linguistics.[FN 2] The Court here searched the Corpus of Historical American English (COHA) [FN 3] to find uses of "sanitation" between 1930 and 1944. Of the 507 results, the most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. Common examples referred to sanitation in the context of garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object. In contrast, by far the least common usage-hovering around 5% of the data set-was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean. And so, the COHA search results are consistent with the contextual clues of the active words surrounding sanitation in § 264(a).

[FN 2]: "Corpus linguistics is an empirical approach to the study of language that uses large, electronic databases" of language gathered from sources such as books, magazines, and newspapers. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788, 828 (2018) (footnote omitted) (describing this tool).

[FN 3]: The COHA corpus is publicly available. See CORPUS OF HISTORICAL AMERICAN ENGLISH, https://www.english-corpora.org/coha/ (last visited Apr. 12, 2022). It is "the largest structured corpus of historical English." Id. Because Congress enacted the PHSA in 1944, the Court searched for uses of the word "sanitation" and variants like "sanitary'' and "sanitize" between 1930 and 1944. The search returned 507 hits, or "concordance lines."

This description of the analysis that the court undertook and the conclusions drawn from the analysis lack transparency and raise a number of questions.

To start, it is unclear what search (or searches) the court undertook. In footnote 3, the court indicates that it searched for the word "sanitation," and also "variants like 'sanitary' and 'sanitize'." The court does not specify how many variants of "sanitation" it searched for--only providing two examples of such variants. It appears that the court conducted a single search, although this is unclear as well, given the acknowledgment that the court searched for variations on "sanitation." This suggests that there was a single search for "sanitation," along with some of its variants (say: "sanitation OR sanitary OR sanitize"). The court's failure to specify the precise terms of its search, however, leave the reader to speculate as to how the court conducted its search of the database.

The court's analysis also lacks transparency regarding how it coded the results of its search. The court gives two apparent examples of its coding: results reflecting the meaning, "a positive act to make a thing or place clean" and results reflecting "a measure to maintain a status of cleanliness, or as a barrier to keep something clean." The court does not specify whether its search uncovered alternate meanings, and the percentage of results that fell into these meanings. Indeed, the only percentage specified in the opinion is that five percent of results were consistent with the "measure to maintain a status of cleanliness" meaning. The court is silent as to the percentage of results that fell into the other meaning it identifies, stating only that the "most frequent usage of sanitation" fit that sense. It is unclear whether sanitation as "a positive act to make a thing or place clean" was a majority of the results or a plurality of the results. Even if this sense was a majority of the results, there is still room for the possibility of a frequently used, third meaning that the court does not identify here. Without a breakdown of how results were coded and the frequency of hits for each definition that was code one cannot know how the court reached its decision or evaluate the significance of its conclusions regarding the frequency of definitions.

The court also fails to list sufficient examples detailing how it decided to categorize the search results. The court notes that it one of its definitions was "a positive act to make a thing or place clean," but goes on to provide purported "examples" that list little more than characterizations of the context of the terms. Some of these terms are likely loaded: "sewage" and "garbage disposal," for instance, suggest that some of these results may have been uses of the term, "sanitation," in a specialized sense to describe a "Department of Sanitation." The court does not specify how it classified search results like this, or whether it treated such results differently from the use of "sanitation" in non-departmental contexts. Departments of Sanitation likely carry out a variety of activities, including taking positive actions to make places clean and to maintain a state of cleanliness. Accordingly, it is likely that the court's analysis included hits that, themselves, could have been interpreted in multiple ways. The court does not specify whether, in these cases, it selected one of the alternate definitions, whether it discounted the result from its analysis, or whether it coded the result as including multiple definitions.

Additionally, this analysis illustrates an overall issue with corpus linguistics analysis: the methodology does not contain a basis for selecting among multiple meanings that a search of the relevant corpus uncovers, or whether choosing a single meaning is appropriate. Here, the court notes that the results of its analysis indicated that there were at least two potential meanings of "sanitation." The court ultimately concludes that it should use the variation that appears most frequently, but does not state why the most frequent usage is the only usage that should be employed (for a critique of this assumption, see Donald Drakeman's essay on corpus linguistics; although see Neal Goldfarb's arguments to the contrary). Moreover, selecting a particular meaning of "sanitation" is, itself, a judgment call as to how broadly to read the statute. If one takes a wide view of the CDC's power, one may be inclined to read "sanitation" to cover all of its potential meanings, so as to allow the CDC to take a broad range of actions. Limiting the reading of "sanitation" to only one of its alternate definitions is, itself, a judgment call as to the appropriate breadth of the agency's power--yet no basis or justification for this assumption is set forth.

Advocates of corpus linguistics claim that it can bring a level of empirical rigor to legal interpretation. But as the court's ruling in this case demonstrates, corpus linguistics can backfire and lead to conclusions based on methodology that is impossible to examine or verify. Advocates of corpus linguistics will undoubtedly argue that misapplications of the methodology should not count against the method itself. But in a world where attorneys may increasingly seek to use corpus linguistics in a one-sided manner to convince judges that their position is correct, or where judges themselves employ corpus linguistics without the necessary transparency, the costs of this method to judicial transparency may outweigh the benefits. A judge or attorney may abuse dictionary definitions by selecting a particular dictionary or one particular definition among alternate, plausible definitions. But these abuses can be identified and critiqued. This is not the case with incomplete corpus linguistics analysis, in which a failure to disclose search terms, coding methods, and percentages of coded results makes it impossible to evaluate the interpretive methods employed. The court's decision in Health Freedom Defense Fund illustrates how this opaque, incomplete methodology can impact the lives of millions.

In Praise of Unoriginal Scholarship

Authors of law review articles frequently claim that their article "fills a gap in the literature," that they are making an "original" contribution, or that their take on an issue (that has likely been the subject of prolonged debate for decades, if not centuries) is a completely new perspective. Critics scoff at these claims, arguing that they are almost always exaggerated and that, when it comes to big ideas about the law, there's nothing new under the sun (an example of this criticism is here). These critiques aren't far off. A lot of scholarship addresses arguments that have already been made elsewhere in the legal literature or in the academic literature of adjacent scholarly disciplines (which more than a few academic legal writers tend to avoid). 

Despite this criticism, authors continue to claim originality and take what they may well believe to be original--albeit potentially unusual or ridiculous--positions on issues. They do so in the hope that they'll end up making a novel contribution that ends up resonating (or, less charitably, with the hope that they can at least dupe editors and readers into thinking that they're making a truly original point).

Perhaps those caught up in the modern race to fill literature gaps and make original claims should take to heart the words of Jeremiah Smith in his article, "The Use of Maxims in Jurisprudence," where he prefaces his critique of various legal maxims with this disclaimer:

Those who are wont to eulogize maxims may not unreasonably require their critics to "file a specification." In compliance with this request, we proceed to furnish specific criticisms of some specific maxims. And the objections to these maxims will be stated, so far as practicable, in the words of jurists of acknowledged reputation. One who has the temerity to attack popular idols can hardly expect even to obtain a hearing, much less to convince, if he relies solely on the views "evolved from his own inner consciousness." The convincing force, if any such there be, of this article will consist in its want of originality. (emphasis added).

The landscape of legal scholarship may become just a bit less ridiculous if more authors and editors meditate on the last sentence of that paragraph. 

Originalism and the Dual Critiques of Indeterminacy and Dishonesty

At the Originalism Blog, Michael Ramsey writes about a couple of recent columns by Eric Segall and Andrew Koppelman, both of which are inspired by Justice Ketanji Brown Jackson's confirmation hearing. This post focuses on one of Ramsey's quick reactions to Koppelman's column.

Koppelman writes:

Originalism has three central problems. It doesn’t really constrain judges. Even if it did, it would do so randomly and chaotically. But in fact, as it has been deployed in the Supreme Court, it is a fraud: The self-styled originalists don’t really care about historical evidence. They manipulate it to reach the results they find politically congenial, and then parade their virtue by saying they are merely following the law.

Ramsey responds:

This essay, like others in a similar vein, seems to suffer from inconsistent claims: either (a) original meaning is indeterminate and so isn't useful as a way of constraining judges, or (b) purportedly originalist judges are frauds in that they ignore the best historical evidence to follow their political preferences. These are both potentially powerful critiques but they're inconsistent so the critic needs to pick one or the other. (Lawyers can argue in the alternative but scholars shouldn't.)

Ramsey goes on to respond to each of these issues, but I want to focus on this initial point. This claim of inconsistency is misguided, as both of these problems may exist simultaneously. One way to illustrate this is to take into account multiple categories of originalist actors. I focus on two categories here: (1) academic originalists; and (2) judges and Justices who claim to be originalists. Critiques of indeterminacy tend to have their place in the academic 

First, consider critiques of originalism as presented by its scholarly proponents. A critic may correctly argue that original meaning may be difficult or impossible to determine. There may also be multiple potential original interpretations of particular provisions. Academic originalists aren't without responses.  They often acknowledge that determining meaning is only one step of interpreting and applying the Constitution to cases before courts or to guide one's behavior. Interpreters may rely on particular rules to determine what interpretation should ultimately be implemented--for examples, rules that the most commonly used meanings of terms should be employed in cases where provisions have multiple meanings, or rules that ambiguous provisions should be interpreted with an eye to the "spirit" of the provisions (or the Constitution as a whole). Critics, in turn, may respond that the choice of what rules to use may inject further indeterminacy into what meaning is ultimately implemented. They may also argue that certain approaches to translating the meaning of constitutional provisions into implementable legal rules and determinations may introduce plenty of opportunities for vagueness and personal opinions to sway decisions. It may turn out that these layers of potential inconsistency are enough to doom originalism as a desirable approach to constitutional interpretation. The debate goes on.

While battle over academic theories of originalism rages in the pages of law reviews and on legal blogs, judges and Justices are making decisions on real world cases. Some of these decisions may be made on purportedly originalist grounds. And it may not take much analysis to realize that these originalist grounds ultimately have little to no connection to any accepted version of the original public meaning of the Constitution. Through selective citations to the vast originalist literature (vast, in part, due to the sheer quantity of theorizing necessary to translate indeterminate provisions into implementable interpretations), judges and Justices may back up their goal-oriented decisions with enough citations and historic hand-waving to create an appearance of legitimacy. 

There doesn't seem to be anything inconsistent about pointing out these two problems with originalist interpretation. Originalism may ultimately provide a range of potential meanings--a range that may be so broad (or that lacks a principled manner of choosing between options). While this issue and the potential meanings and methods for choosing between meanings is debated at the academic level, disingenuous, goal-oriented judges and attorneys may purport to take an originalist approach, yet go beyond the range of potential meanings originalism suggests. They may also reach conclusions that turn out to be consistent with originalism by happenstance, should those results end up being consistent with the desired result.  

Both of these problems can exist simultaneously, and both must be accounted for should originalists ever hope for their theory to be applied in a consistent, meaningful manner. Highlighting the seeming inconsistency of these problems in an effort to avoid criticism is nothing more than a dodge. 

One final point:

"Lawyers can argue in the alternative but scholars shouldn't." This seems to be a throwaway line, but it's a revealing example of legal academia's disconnect from the practice of law. There's been some more discussion lately of the ongoing trend of hiring professors with substantial academic, clerking, and fellowship credentials, but with little to no practice experience. Here, the disconnect is made explicit: "lawyers" are separated from "scholars," with the tactics of the former group having no place in the discourse of the latter. Perhaps this is an attempt to justify legal scholarship's increasing disconnect from the realities of practice--if the argumentative methods of lawyers has no place in legal academia, perhaps there is no loss as a result of the widening gap between practice and scholarship.

This instinct seems misguided. While legal scholarship certainly appears different from the arguments attorneys make in briefs and in court, it is (at least in theory) written with the purpose of describing or influencing the legal landscape. If legal scholarship is disconnected from practice (including the practical aspects of lawmaking, judicial opinions, and other real-world aspects of the law), it will end up having little to no impact beyond the theoretical universe it inhabits.

Making the Law Review Submission Process Less Terrible

The Spring submission cycle for law reviews is well underway (and over for some), and has prompted a familiar series of complaints about the academic legal publishing process. Many of these complaints raise concerns dating back decades. Yet the submission process remains largely unchanged. To an extent, this is because a great deal of criticism targets well-established, fundamental aspects of the system without a view to the practicalities of changing these aspects. 

For example, while there may be benefits from switching from student-edited journals to journals edited by faculty, this would be such a dramatic change to the world of academic legal publishing that it is unlikely to occur. Practical considerations that often fall by the wayside for critics making this particular argument include: how will faculty find the time to add editing law reviews to their current workloads? If students are to still maintain some editorial role, or cite-checking responsibilities, will they still be incentivized to do so absent the ability to select the scholarship that is published? What would this system mean for the cite-checking progress, in which all citations are subjected to multiple levels of review to ensure accuracy?

Here, I offer some thoughts on simple steps to improve the law review publication process. While these ideas aren't going to transform the publication process into a delight for everyone, they are meant to be steps in the right direction. My primary consideration is whether these proposals are easy to implement by the relevant actors and whether they lead to at least some incremental improvement to the publishing process.

By way of background (you can skip this paragraph if you're familiar with the law review publishing process), law journals are almost all student-edited. Students select articles to publish, edit the text of the article, and undertake a rigorous cite-checking process in which they locate all sources cited by the article, ensure that all citations are accurate, and revise the footnotes so that they comply with the numerous formatting rules of the "Bluebook," which governs the form of legal citations. Law reviews typically review and select articles in two seasons: the Spring season, which lasts from February to March, and the Summer season, which lasts from August to September. These are rough approximations--some law reviews accept submissions earlier, some later. Submissions are almost all sent using Scholastica, a third party platform. Authors upload their articles, as well as copies of their CV and, sometimes, cover letters describing each article. Once uploaded, authors may then send their articles to as many law reviews as they wish, although there is a $6.50 fee for each submission. Unlike in other academic publishing contexts, there is generally no expectation that submissions are exclusive. Indeed, once an offer to publish is received, authors have the option to "expedite" their submission to other journals by sending an alert that they have received a publication offer and have until a certain deadline to respond. This may prompt other journals to prioritize the submission above others, as there is now a deadline to accept, and as another article has apparently found the submission worthy of publication. Unsurprisingly, this leads to journals being inundated with submissions. Editors with less-prestigious journals have trouble filling their volumes, as many offers they extend end up being expedited to other publications. Anthony Kreis details this process, and its many problems, in his concise essay, "Picking Spinach."

With that, here are some modest proposals for making the law review process just a bit more bearable for all involved. As I noted at the top of this post, I don't pretend that these proposals will solve all problems with academic legal publishing. Normally, I'd say that further discussion is warranted on what systemic changes could improve the publishing process for all. But that discussion has been happening for nearly a hundred years now, with little meaningful progress. Perhaps there is hope, but for now, incremental changes that make the system a bit better ought to be a larger part of the conversation.

• More Anonymous Submissions. More journals should employ an anonymous review process, in which the author's name, employer, and other identifying information is hidden from the journal. Many law journals have implemented anonymous submissions procedures already, including several leading publications. Detractors claim that such an approach can be circumvented, as enough investigation may reveal clues to the author's identity. These critiques miss the mark, as anonymous submissions are meant to prevent using an author's name and pedigree as a shortcut for selecting or prioritizing an article rather than its content. The depth of investigation required to uncover an author's identity is likely greater than the effort needed to evaluate whether it is worthy of publication, and certainly far greater than simply reading the name of an author and their employer and concluding that an article should get priority as a result. Time-pressured editors will therefore be more likely to focus on the article's merits rather than do detective work to determine the author's identity.
• Scholastica Should Identify ALL Law Reviews Requiring Anonymous Submissions. Scholastica claims that they have recently implemented a change that flags law journals requiring anonymous submissions. While I certainly saw several journals with this designation in the most recent submission cycle, these designations were not exhaustive, missing multiple journals that required anonymized, or partially anonymized, submissions. For example, the NYU Law Review requires anonymous submissions, but Scholastica has not yet added a designation indicating this. If Scholastica is going to claim to flag all journals that require anonymous submissions, it should do so.
• Journals Not Accepting Submissions Should Close Themselves on Scholastica. Journals have the option of listing themselves as closed to submissions on Scholastica, which makes it impossible for authors to submit articles to them. Many journals do this after they have completed their review of articles during a submission season. I suspect that many journals that are no longer reviewing new submissions often fail to list their journal as "Closed" on Scholastica, which may give authors the impression that the article is still open to submissions. This is a waste of authors' time and money, and will likely clutter the inboxes of law journals. The simple step of closing a journal to submissions will fix this.
• Journals Should Update Their Submission Guidelines. Journals typically post a set of submission guidelines on Scholastica, indicating when they will review articles, formatting guidelines, anonymity policies, and other preferences they have. Many of these guidelines, however, are clearly out of date, with journals proudly announcing that they began accepting submissions for this season starting on March 1, 2019. This suggests that the rest of the guidelines may be out of date, and adds further mystery to whether the journal is indeed accepting submissions.
• Journals Should Say Whether They Refuse Student Submissions. Many journals have a blanket policy of refusing submissions from students at other law schools. These policies are, in general, misguided. But reforming them is the type of far-reaching, ambitious reform that is unlikely to catch on. Instead, my modest suggestion is that if law journals will not accept submissions from students at other schools, they should clearly say so and, if possible, prevent students at other schools from submitting articles to them via Scholastica. This would save authors' and student editors' time, and would allow student authors to prioritize submissions to the more enlightened journals that are open to all types of authors.
• Eliminate Formatting Guidelines at the Submission Stage. This may be getting into the realm of proposals that are too bold, but journals should refrain from requiring particular formats, such as fonts, double-spacing, and related requirements (although requiring footnotes, rather than endnotes, may be an exception to this proposal). Journals requiring different types of formatting may result in authors needing to prepare multiple sets of submissions for the same article, which can lead to confusion in tracking and expediting articles. Many, if not most, submissions are sent as Word documents, which journals can easily reformat themselves if it aids in their review. To the extent that a journal prefers a particular font or finds that double spacing aids in the editing process, these are all requirements that a final draft submission can meet after acceptance for publication. 
• Scholastica Should Change Submission Pricing, Or At Least Waive or Reduce Fees for Certain Authors. Very little criticism of the publication process mentions the price that Scholastica charges for submissions. I suspect this is because most law schools subsidize the submissions of their professors (an assumption I am making based on my prior experience, as well as the replies I am seeing to this tweet). This allows Scholastica to continue charging its submission fees without seeing a drop in use. It also means that professors, who are often the most outspoken about law review reforms, don't bear the burden of paying for their submissions, resulting in the issue seeming to be a lower priority. But for those outside of the academy--particularly those working in government, nonprofit organizations, or as clerks--Scholastica's pricing may be prohibitive. At the very least, it makes it difficult to compete with professors who may operate with effectively unlimited submissions. Timothy Lau is one of the very few commentators who has flagged the problem of submission pricing in his article, "A Law and Economics Critique of the Law Review System."  He proposes a graduated pricing scheme, where in which the first 10 submissions cost $4.00 each to submit, the next 10, $5.00, and so forth, capping out at $13.00 for the 100th submission and onwards. To an extent this would make it easier for non-academics to submit--at least as far as their initial submissions are concerned. It would also, in theory, reduce what Lau describes as "saturation submission," in which large numbers of submissions overwhelm law reviews. This approach has its drawbacks. For one, the particular graduated pricing scheme Lau proposes would likely be too burdensome for nonacademic publishers who aren't making biglaw money. Moreover, if law schools continue to subsidize submissions, pricing changes would not impact author behavior. Instead, Scholastica should consider reduced pricing for those who are not associated with a law school, or a allowing a certain number of free submissions for these authors, which would reduce the burden of submission, and help these authors better compete with those in academia. Since the bulk of submissions will likely continue to come from professors, the cost of this reform should be low.
• More People Should Call Out Submission Pricing. As a follow up to the previous proposal, I want to emphasize that Scholastica's submission fees should be part of the discussion of law review submissions and reforms. It is barely mentioned, but the high price of numerous submissions, coupled with law schools subsidizing submissions, places nonacademic authors--and particularly those working in government or public interest--at an economic disadvantage. 
• Law Journals Should Reject All Pending Articles Once Their Volumes Are Full. For me, both this submission season, and last submission season, were strangely quiet. Many journals to which I submitted never responded in any way. As for the rejections I received, many indicated that the journal had filled its volume and was no longer reviewing any submissions--which suggested to me that my submission had not been reviewed before rejection. Still, that latter approach is preferable to no update at all. If journals have filled their volumes, they should send out an automatic notification to those whose submissions are still pending that those submissions will not be published. Widespread, uniform adoption of this approach would give authors a better idea of the landscape of what journals are still open, and inform decisions on where to expedite and whether further submissions are warranted.

Perhaps some of these suggestions (particularly the Scholastica pricing ones) are too ambitious. But if Scholastica and law reviews adopt some or all of these suggestions, it would make the publication process a bit easier for everyone. Problems remain, but at least they'd be a little less terrible.