"Business as Usual" For Originalism?

I've argued at length elsewhere that three of the highest-profile cases of the Supreme Court's October 2021 term marked a shift away from an originalist approach to constitutional interpretation. In Dobbs v. Jackson Women's Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Kennedy v. Bremerton School District, the Court set forth a "history and tradition" approach to determining the scope of constitutional rights. In doing so, the Court elevated historical practices to a level at which these practices define the scope of constitutional rights. The Court pays lip service to the Constitution's text, but a close reading of these opinions reveals that the text plays no meaningful role in deciding the outcome. It is therefore a mistake to call these opinions originalist, as many have.

Enter Randy Barnett and Lawrence Solum and their recent draft article, "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." Barnett and Solum advance what Michael Ramsey at The Originalist Blog describes as "an important antidote to the flood of academic commentary proclaiming that the Court's recent cases aren't originalist."

From the article's abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Barnett and Solum describe the use of history and tradition tests as "business as usual" for the Supreme Court, and argue that Dobbs, Bruen, and Kennedy "contain scant evidence of the emergence of a new approach to constitutional interpretation that would supplant either Public Meaning Originalism or Constitutional Pluralism." (p. 26). This got my attention, as I've concluded the opposite.

Walking through Barnett and Solum's analysis of Dobbs, Bruen, and Kennedy reveals the lengths one must go to in order to conclude that these cases are consistent with an originalist approach to constitutional interpretation. Despite Barnett and Solum's conclusions about the healthy state of originalism after the October 2021 term, their analysis of each case acknowledges that each opinion strays from typical originalist analysis in varying degrees. While they attempt to account for these deviations and present each case in as originalist a light as possible, they fail to demonstrate that the Court's recent decisions reflect an originalist methodology. And this is important--these were some of the biggest cases of the term, and in recent memory. If originalism isn't how the Court decides these important cases, this casts doubt on originalism's explanatory and predictive value.

Dobbs v. Jackson Women's Health Organization

In Dobbs, the Court overruled Roe v. Wade and concluded that the Constitution does not protect a right to abortion. Barnett and Solum's discussion of Dobbs focuses primarily on what the Court says about its interpretive methodology rather than on how the Court actually analyzes the case. Barnett and Solum devote pages of their article to parsing out a single sentence and a footnote in Dobbs in which the Court critiques certain approaches to constitutional interpretation and discusses how analysis ought to proceed. The Court asserts its analysis should be guided not by "freewheeling judicial policymaking" but instead by what the Fourteenth Amendment means--followed by a footnote that reiterates that the Court must look to history and tradition (p. 18-19). Barnett and Solum delve into this statement, which they ultimately conclude isn't fully originalist but instead represents a "hybrid methodology." (p. 18). Still, they argue, the statements are "best explained by the idea that the gravitational force of originalism is operating in the background" of the opinion. 

This assertion is doubtful. The argument refers to Barnett's prior work arguing that originalism may influence judicial opinions that do not mention originalism through its "gravitational force." If one looks hard enough, just about anything can be evidence of this force. In his prior article, for example, Barnett concludes that originalism exerted an influence on McDonald v. City of Chicago, on the basis of three pieces of evidence. First, Justice (Thomas) discusses the original meaning of the Privileges or Immunities clause in his concurring opinion. Second, the Court's non-originalist conclusion happened to be consistent with the conclusion that an originalist methodology would have reached. Third, the Court did not outright reject originalism. (All of this is on page 17 of the linked pdf). If evidence like this is sufficient to prove originalism's "gravitational force," it's hard to imagine a case where no such force exists short of an explicit rejection of original meaning.

Back to Dobbs. Barnett and Solum's focus on the Court's discussion of how constitutional interpretation ought to proceed is misplaced. They devote their attention to the Court's rhetoric about what it ought to do rather than examining the bulk of the opinion where the Court actually engages in the analysis that decides the case. Despite the occasional sentence proclaiming the importance of constitutional meaning, the Dobbs Court didn't spend time parsing out the meaning of the Fourteenth Amendment's Due Process and Privileges or Immunities Clauses. It didn't weigh arguments by the parties or amici regarding the Fourteenth Amendment's original meaning. Instead, it engaged in an analysis of historical laws restricting abortion dating back to the twelfth century and up until the 1973 Roe v. Wade decision. Based on these laws and its rejection of arguments that partial bans on abortion do not imply a right to abortion in instances not covered by these laws, the Court concluded that the right to abortion was not grounded in history and tradition and therefore unprotected by the Fourteenth Amendment. 

Text and original meaning did not guide the inquiry in Dobbs. History and tradition did, and were the sole basis for the Court's conclusion. Focusing on the Court's nonoperative lip-service to the meaning of the Fourteenth Amendment doesn't change this.

New York State Pistol & Rifle Association, Inc. v. Bruen

In Bruen, the Court held that New York's may-issue licensing scheme for concealed-carry permits violated the Second Amendment. Bruen, Barnett and Solum claim that the Court examines the Second Amendment's original meaning, albeit in a "very brief treatment." (p. 20). They're right about the length of the treatment--the Court's analysis is limited to six paragraphs out of a sixty-three page opinion. But they're wrong to classify those paragraphs as originalist analysis. 

As I argue at length elsewhere, the Court does no original meaning analysis of its own, relying instead on its prior opinion of District of Columbia v. Heller which concerned the right to keep handguns in the home. The Bruen Court's citations to Heller ultimately refer primarily to modern sources and precedent. And remainder of the Court's discussion of the Second Amendment's text is limited to modern cases--including present-tense speculation over when homeowners carry guns for protection and risks one may face in certain parts of Chicago. 

Barnett and Solum claim that the Court made "a reference to the original function or purpose of the right to keep and bear arms," and cite the Court's discussion about how the need for self-defense exists outside of the home. (p. 20). But the Court made this reference in the context of ahistorical hypothetical scenarios. To the extent that self-defense is described as the "original purpose" of the Second Amendment right to keep and bear arms, that description comes from Barnett and Solum, not the Bruen Court.

While the Court's discussion of the Second Amendment's text led to its threshold conclusion that the carrying of firearms fell within the scope of the Second Amendment's protection, the bulk of the Court's analysis was devoted to analyzing whether New York's permit laws were based on a history and tradition of firearm restrictions. New York would have to demonstrate such a history and tradition for the Court to conclude that the regulated conduct "falls outside the Second Amendment's 'unqualified command.'" The Court analyzed historical firearms restrictions and rejected numerous examples of these laws as irrelevant to the inquiry, ultimately concluding that the State failed to carry its burden of demonstrating a history and tradition of regulation. 

Barnett and Solum acknowledge that "[t]here are two ways to understand this use of history," first as a tool "to discover the contours of the right to bear arms in 1791 or 1868," and second as a "method of constitutional construction" that guides how to apply an original meaning to a modern case. (p. 21). Barnett and Solum, unsurprisingly, support the second reading, honing in on the Court's acknowledgment that the Second Amendment right is not unlimited and characterizing the practice of when rights may be regulated as part of constitutional construction rather than original meaning. (p. 22). Even so, Barnett and Solum classify the Court's methodology as "a nonoriginalist approach to constitutional construction." (p. 22). 

Six paragraphs that focus on modern hypothetical scenarios and dozens of pages devoted to what Barnett and Solum characterize as nonoriginalist methodology. Not the best candidate for a case consistent with originalist methodology.

A Concerning Claim: Bruen's History and Tradition Analysis as Dictum?

During their Bruen analysis, Barnett and Solum assert that the "core holding of Bruen rests on an originalist foundation, but the historical analogue test is an implementing rule that is not justified by originalist meaning." They elaborate on this assertion in footnote 111, suggesting that Bruen's history and tradition analysis--again, the bulk of the opinion and at least a portion of its basis for rejecting New York's attempts at justifying its firearms restriction--was dictum. 

This characterization of Bruen's holding requires elaboration. One of Solum's recent Legal Theory Lexicon entries alludes to the complexities of distinguishing holdings from dicta. Barnett and Solum don't get into these complexities in their article. Their discussion is brief--little more than an assertion that the Court's history and tradition analysis "was not part of the reasoning that was necessary to justify the outcome on the facts that were before the Court." (p. 21, n. 111). They do not explain why. 

Here's how the Bruen Court set out its method:

We reiterate that the standard for applying the Second Amendment is as follows: 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.”

Bruen involved more than the question of what the Second Amendment means in the abstract. It, like all court cases, involved the application of that meaning to a set of circumstances. In Bruen, the circumstances involved a permitting regime that largely restricted people from carrying firearms. In the face of constitutional objections, New York argued that its permitting regime was supported by a history of analogous restrictions on the right to carry firearms.

Barnett and Solum's characterization of the history and tradition analysis as dictum may make sense if the Court's history and tradition analysis was unnecessary for the Court to reach its outcome. But this reading seems strained. The Court set forth a means by which a government could justify a restriction on conduct covered by the Second Amendment's plain text: prove that it's supported by a history and tradition of similar regulations. New York made its case in support of that justification. The Court rejected that case and, as a result, concluded that the law was unconstitutional.

The only way that Barnett and Solum's dictum conclusion follows is if one reads Bruen to state that the Court did not need to reject New York's justification for its regulation. One may get here by focusing on the final sentence of the paragraph quoted above--that if the State justifies a restriction by demonstrating a historical tradition of firearm regulation, the Court "may conclude" that the conduct falls outside the Second Amendment's unqualified command. That permissive, "may," leaves room for courts to still decide that the activity is protected by the Second Amendment, even in the face of a demonstrated historical tradition of analogous restrictions.

If this is the case, Bruen's implications are even more dramatic than most commentators claim. The constitutionality of any restriction on activity that falls within the text of the Second Amendment--any keeping or carrying of firearms--is up to the reviewing court's discretion even if the government is able to demonstrate a historical tradition of analogous regulations. Under this reading, there will never be a case where a law is clearly constitutional. At best, a reviewing court may permit the law at its discretion.

If this is the basis for Barnett and Solum's dictum conclusion, they should say so. Doing so would clear up their reasoning, but at the cost of conceding a reading of Bruen that permits unprincipled and arbitrary invalidation of swaths of gun restrictions. If they have some other basis for their dicta claims, they should make that basis explicit.

Kennedy v. Bremerton School District

Kennedy--a case arising from a high school football coach who was suspended with pay after repeatedly praying on the 50-yard line of the football field after several games--is a difficult case because despite making broad proclamations about historical methodology, the Court did not engage in any historical analysis or determination of the original meaning of the Establishment Clause. Barnett and Solum acknowledge this, stating that the "opinion is not analytically precise about the roles that history and tradition play in the Court's reasoning."

This lack of information doesn't stop Barnett and Solum from using this case to support their argument, though. First, they state that the opinion: 

seems to assume that, as a matter of history, prayer like that in which the coach engaged was not considered an establishment of religion, but no historical analysis was actually presented in the opinion itself. Had there been such analysis, then the Court would have been relying on historical practice as evidence of original meaning. 

I cannot deny that if the Court had engaged in original public meaning analysis, it would have engaged in original public meaning analysis. But that's not what happened here. Instead, the Court set forth a parade of horribles--suggesting that a contrary conclusion would result in teachers being fired for praying quietly at lunch or wearing yarmulkes to school. The Court concludes that "[w]e are aware of no historically sound understanding of the Establishment Clause" that would permit such hostility to religion. Barnett and Solum seize on this language, arguing that this reference of history "suggests that it is originalism and not tradition that is actually doing the work." (p. 25). But absent actual analysis of history or meaning, this evidence is thin at best.

Barnett and Solum conclude that Kennedy "is so brief that no firm conclusions can be drawn about its general significance." (p. 38). Again, their analysis is curtailed only to the language of constitutional interpretation (or its lack) and fails to acknowledge what the Court did. In Kennedy, the Court used a slippery slope analysis to conclude that the school district's disciplinary measures were unconstitutional. Even if the Court's reasoning did not employ the history and tradition methodology used in Dobbs and Bruen, it was not an originalist analysis. And yet, on the basis of this nonoriginalist methodology, the Court overturned the longstanding precedent of Lemon v. Kurtzman and further limited the force of the Establishment Clause. 

Implications

The remainder of Barnett and Solum's paper discusses how history and tradition may be fused with originalist methods. They note, as they have elsewhere, that historical practices may be used as evidence of original meaning. (p. 29). They then make suggestions about how originalist justices should opine when a majority of the Court reaches nonoriginalist conclusions. Their advice is tailored to match the lineup of the Dobbs, Bruen, and Kennedy decisions. For example, they suggest that if a case outcome is originalist, but the holding is not, the originalist should often concur in the result but not in the majority opinion. But if the "outcome and the holding are originalist but the reasoning is nonoriginalist," such as a history and tradition case, "there is a strong reason for the originalist judge to join in the majority opinion, if the vote of the originalist judge is necessary to sustain a holding that is identical or nearly identical to the constitutional doctrine required by the original meaning of the constitutional text." (pp. 33-34). The originalist judge can then write a concurrence that explains the originalist basis for the outcome. 

Barnett and Solum make a brief attempt to characterize Justice Thomas's concurring opinion in Dobbs as one such opinion, claiming that he "wrote separately to disagree with [the majority opinion's] nonoriginalist implications." (p. 35) But this characterization isn't supported by Thomas's opinion--including the quoted excerpt they cite. Far from disagreeing with nonoriginalist implications, Thomas briefly sets forth his position that the notion of substantive due process is unsupported by text and history. Thomas, as footnote 178 of Barnett and Solum's article confirms, presents this as a further reason for the outcome--not as a disagreement. Additionally, Thomas's reasoning veers away from original meaning before that analysis has barely begun, and is devoted to an action plan of overturning even more longstanding precedent and a litany of policy objections to substantive due process invoking concerns over judicial policymaking, distortion of constitutional law, and the "disastrous ends" to which substantive due process jurisprudence often leads.

Barnett and Solum's discussion of originalism's role is useful only if one assumes that the Court will take an original public meaning approach to constitutional cases. But this assumption is unsupported by the rest of their article. Barnett and Solum claim that "by clarifying the nature of the reasoning in" Dobbs, Bruen, and Kennedy, that they have dispelled concerns over a "novel history-and-tradition alternative" to originalism. (p. 37). But they haven't done so. Instead, they hone in on brief excerpts of the opinions that resemble originalist reasoning without regard to the larger context of how the Court decided each case. And even with this tunnel vision of original public meaning, Barnett and Solum acknowledge numerous nonoriginalist aspects of the opinions.

In Dobbs, Bruen, and Kennedy, the Supreme Court abandoned original meaning. Barnett and Solum fail to demonstrate otherwise. They, and other originalists, must reckon with the fact that their preferred manner of interpretation does not predict, explain, or influence how the Court decides its cases.