Anti-PC Grok as Corpus Linguistics

As you may have heard, Elon Musk's AI chatbot Grok went full-blast Nazi today, culminating in it calling itself "MechaHitler" and praising its namesake as someone who would have "crushed" leftist "anti-white hate." (Ironically, or not, the "leftist" account it was referring to was itself almost certainly a neo-Nazi account pretending to be Jewish).

What caused this, er, "malfunction"? Well according to Grok, Musk "built me this way from the start." But the more immediate answer appears to be an update Musk pushed urging the bot to be less "politically correct" -- an instruction Grok interpreted as, well, a mandate to indulge in Nazism.

This raises an interesting implication. Many legal scholars (particularly textualists and originalists) have recently become enamored with a "corpus linguistics" as an analytical tool for understanding the meaning of legal texts. Corpus linguistics tries to discern what words or phrases mean by taking a large body of relevant works (the corpus) and figuring out how the words were actually used in context. If originalism is about the "ordinary public meaning" of the words in legal texts at the time they were enacted, corpus linguistics offers an alternative to cherry-picking usages from a few high-profile sources (such as the Federalist Papers), sources which are likely polemical, may not actually be representative of common usages, and are highly prone to selection bias. Instead, we can identify patterns across large bodies of training text to figure out how the relevant public generally uses the term (which may be quite different from how a particular politician deploys it in a speech).

Now take that insight and apply it to the term "politically correct". This is, of course, a contested term, and critics often contend it (or more accurately, opposition to it) is a dog whistle for far-right racist, antisemitic, and otherwise bigoted ideologies. Those who label themselves "not-PC" typically contest that reading, at least in circumstances where owning up to it would risk significant consequences. So is someone calling themselves "un-PC" a signifier of bigotry or not? This could have significant legal stakes -- imagine a piece of legislation which had a disparate impact on a racial minority community and which its proponents justified as a stand against "political correctness". When seeking to determine whether the law was motivated by discriminatory intent, a judge might need to ask whether opposition to political correctness should be understood as a confession of racial animus.

Under normal circumstances, one suspects that inquiry will resolve on ideological lines -- those hostile to the law and suspicious of "anti-PC" talk inferring racial animus, those sympathetic to the law or anti-PC politics rejecting the notion. And no doubt, both sides could muster examples where "PC" was used in a manner that supports their priors. 

But corpus linguistics suggests shifting away from an individual speaker's idiosyncratic and self-serving disavowals and instead ask "what is the ordinary public meaning of 'not politically correct?'" And it would answer that question by taking a large body of texts and seeing how, in practice, terms like "politically correct" or "not PC" are used. 

Returning to Grok, what Grok's journey from "don't be PC" to "MechaHitler" kind of just demonstrated is that, at least with respect to the corpus it was trained upon, the ordinary usage of "not PC" is exactly what critics say it is -- a correlate of raging bigotry and ethnic hatred.

I don't want to overstate the case -- a lot depends on what exact corpus Grok uses to train itself and whether it properly corresponds to the relevant public. Nonetheless, I do think this inadvertent experiment is substantial evidence that, when you hear someone describe themselves as "not-PC", it is reasonable to hear that as meaning they're a racist -- because that's what "not-PC" ordinarily means. And if your conservative/originalist friends object, tell them that corpus linguistics backs you up.

"I'm Not Owned! I'm Not Owned!" Originalists Continue To Insist as They Slowly Shrink and Transform into a Corn Cob

The Supreme Court today reversed the Fifth Circuit and upheld a federal statute prohibiting persons under domestic violence restraining orders from possessing firearms against a Second Amendment challenge. The case, United States v. Rahimi, had quickly become a tentpole example of the disaster show unleashed by the landmark Bruen decision, which tossed out the "heightened scrutiny" review uniformly used by lower courts to adjudicate Second Amendment challenges in favor of a "historical analogue" test that immediately proved almost entirely unworkable. The majority in Rahimi appears to have significantly retreated from Bruen, underscoring that Bruen does not demand a "clone" law but merely something "analogous" that existed at the time of the framing (here, the relevant analogy was "surety" laws, which required "individuals suspected of future misbehavior to post a bond").

The Court's decision was 8-1, with only Justice Thomas (the author of Bruen) dissenting. This isn't too surprising -- most legal observers thought after watching oral argument that the Fifth Circuit's opinion was destined to be reversed. The stance that the "cartoonishly violent" domestic abuser at the center of Rahimi had a Second Amendment right to remain armed and dangerous was predictably something that most of the Justices wanted to race away from as fast as possible.

But the real fun, for me, came in reading the concurring opinions. Two of them, authored by the liberal Justices Kagan and Jackson, are dedicated to making the obvious point that Bruen has been an absolute trainwreck. The conservative concurrences, by contrast, are a spectacle of chest-thumping paeons to originalism as the one true standard of constitutional jurisprudence, distinguished most essentially by the fact that it is not results-oriented and prevents judges from tailoring the outcome of cases to meet their ideological preferences.

Us legal progressives have to enjoy the small things these days, and if ever there have been clearer examples of protesting-too-much in a judicial opinion, I'm not sure I've seen it. It could not be clearer that the outcome in Rahimi dictated the reasoning. It could not be clearer that the contemporary social policy consequences are basically the entirety of what drives the otherwise arbitrary inquiry into how "analogous" is analogous enough (and, for what it's worth, such policy arguments also took center stage in the conservative arguments marshalled to strike down the law -- it's policy all the way down). The ferocity through which Justices Kavanaugh and Gorsuch in particular extol originalism's virtues in their opinions reek of desperation. Bruen was a classic instance of this Court taking a huge theoretical swing in service of an abstract political ideology and leaving the mess for later. Unfortunately for them, the mess piled up quicker than they anticipated, and now they're left in the humiliating position of having to act like the ensuing disaster wasn't one of their own making.

I will give some credit to Justice Barrett for grappling with a few of the critical questions here. She correctly notes that the historical test does not mean that contemporary legislatures are limited to "an updated model of a historical counterpart" in crafting gun legislation, because "historical regulations reveal a principle, not a mold." Within the general class of domains where there is historical evidence states were permitted to implement restrictions on the right to bear arms, the legislature should get significant deference in determining how it wants to instantiate those restrictions -- the flipside of Bruen's general admonition that policy judgments have no role to play in Second Amendment adjudication.

The other essential point Barrett makes is critiquing the assumption "that founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority." We can group legislative action -- at the founding or at any other time -- into three broad buckets: (1) laws the legislature passed and which they believed  were constitutional (2) laws they did not pass because they thought they'd be unconstitutional, and (3) laws they did not pass, but not because they believed they were unconstitutional (one hopes the fourth category -- laws that were passed even though the legislature believed they were unconstitutional -- is close to a null set). The third category is an utterly mundane one: the legislature doesn't enact legislation for a whole host of reasons, the vast majority of which have nothing to do with any constitutional worries -- anything from "we think this is bad policy" to "we didn't consider this at all". 

Unless we think that founding-era Americans enacted every single possible gun law that they thought was constitutionally-permissible -- legislating to the utmost limits of their constitutional authority -- there will be entries in both the second and third categories. But to modern eyes, these two buckets will be largely observationally equivalent -- the lack of a historical precedent could mean that laws of this sort were thought to be unconstitutional, or they could mean they weren't passed for the myriad range of other reasons laws don't get passed. Bruen basically papers over this problem by pretending the last bucket doesn't exist, but in doing so it curb-stomps its own historical test. As for me, I don't have a good answer regarding how to disaggregate the two buckets, but doing so is essential to actually applying the historical test Bruen purports to impose. I'll give one cheer to Justice Barrett for at least recognizing the problem, but I suspect that this is yet another reason why Bruen's nebulous and vexing character is going to be intractable and will remain how it's begun: an incoherent mess of law office history cloaking bog-standard ideological policy judgments.

Is Originalism a Sandwich?

In the latest iteration of her "notable sandwiches" series, Talia Lavin tackles the age-old question "Is a hot dog a sandwich?" She gathered a host of experts from a range of different disciplines to give their take, and while there wasn't a consensus, it seemed to me (I didn't count) that more leaned against it being a sandwich. The general thrust of the argument that most resonated with me, from sociolinguistics professor Matt Garley, was to frame the question as "Do people commonly or regularly refer to a hot dog (outside of this particular debate) as a sandwich?" In that light, the answer seems to be generally "no", even if it seems to formally meet the dictionary definition of a sandwich ("two or more slices of bread or a split roll having a filling in between.").

Later in the post, Talia gets a quote from Jesse Sheidlower, a lexicographer and former editor of the Oxford English Dictionary, who gave some insight on how dictionaries themselves approach this problem. Contrary to (perhaps) popular belief, dictionaries are not in the business of trying to give precise definitions that perfectly include and exclude everything that descriptively falls within the category-type of a given word. I'll quote him at length:

The general thing to know about dictionaries is that you're usually not trying to capture the complete and exact description of something; you're trying to get a general picture of what something means. This is hard enough for concrete nouns that we more or less know, like "horse" or "sandwich"; it's impossible with abstract nouns like "freedom" or "beauty". One of the most famous definitions in lexicography is the one for "door" in Webster's Third of 1961:

"a movable piece of firm material or a structure supported usually along one side and swinging on pivots or hinges, sliding along a groove, rolling up and down, revolving as one of four leaves, or folding like an accordion by means of which an opening may be closed or kept open for passage into or out of a building, room, or other covered enclosure or a car, airplane, elevator, or other vehicle."

This is what happens when you try to be exact—you get something useless.

So most dictionaries, that are written for native speakers and that assume a good-faith effort to understand the definition, give a reasonably broad definition, that will include most things that should be included and exclude most things that should be excluded.

There are, conventionally, two main types of lexicographers: lumpers and splitters. Lumpers include as much as possible ('liquid food' for soup); splitters write a dozen super-narrow definitions, and when a new variant comes up, they write another one.

Dictionaries are generally more lumpy than splitty. A sandwich is a food with something inside a bready thing. Trying to be super-precise is only going to lead to frustration (or the "door" definition above): Most people feel that a meatball sub is a kind of a sandwich but a hot dog isn't, but that's very hard to explain, so unless you have a definition like "… or a split roll having a cold or hot filling (that is not a solid length of sausage)…", you're kind of stuck.

If I can turn serious for a moment—and this is very serious—the reason that this is genuinely important, and not just a parlor game, is that people sometimes put a lot of faith in dictionary definitions. In particular, courts use old dictionaries to try to determine what words meant at a time when laws were written. But that is very much not how dictionaries should be used. If it's this hard to determine what a "sandwich" is, what are we supposed to do about words like genocide, or to bear arms? Or woman in reference to a trans woman? People literally die because dictionaries are misused. There are ways to attempt to answer these questions—corpus linguistics, sociolinguistic interviews—but thinking that a dictionary is an exact map of reality is not a correct one of these.

I wasn't expecting to see this point made in a fun post about the concept of a hot dog, but here we are. And it did crystallize for me an objection I've been flagging recently about "vulgar" textualism or originalism; a practice of judicial interpretation that purports to distinguish itself by close and careful reading of texts, but actually is just very bad at reading texts. Many of the cases that take this approach begin with a very close parsing of dictionary definitions in order to fix textual meaning. But this from the jump misunderstands what dictionaries are even trying to do. Even at the moment they are written, dictionaries are an at best imperfect map onto actual public meaning (the idea being that even if we were looking at a dictionary published today to answer the question "is a hot dog a sandwich", we'd likely be heading off in the wrong direction). And that gap only grows wider as time passes, because the actual meaning of words depends on a host of agreed-upon implicit assumptions and cultural horizons that are constantly shifting and temporally-contingent. 

We run into this question when trying to figure out how to apply an old word ("search") to technology that hadn't been invented yet when the word was written ("heat scanning"). One way of answering "is heat scanning a search under the Fourth Amendment" is to look at the dictionary definition of "search" circa 1789 and figure out if it fits. But that actually wouldn't really be the accurate answer, because what we'd actually want to know is if the relevant interpretive community would have generally used "heat mapping" as falling under the category of search. And that question, in turn, is essentially incoherent unless we also import into that community a host of surrounding cultural and linguistic practices that make "heat mapping" a legible concept that could be part of a robust linguistic pattern to begin with (if you plop down a heat mapper into 1789 without all of that context, then it's going to be seen less as a "search" and more as "eldritch magical witchcraft"). So what we're really asking when trying to figure whether heat mapping qualifies as a search today is "how would the relevant class of interpreters understand the relationship between these words, if they had the full cultural and linguistic context that we have today -- and at that point, our "originalism" is essentially just living constitutionalism.

The Constrained Constitution and the SALT Deduction

Yesterday, the 2nd Circuit rejected several states' challenge to the elimination of the "SALT" (State and Local Tax) deduction from federal income taxes (basically, allowing you to deduct state tax payments from your federal income). The elimination occurred under the Trump administration, and it was a savvy play -- it mostly affects "blue" states (which tend to have higher state taxes), and it mostly affects wealthy residents of those states (who pay the most in state and local taxes). One would not be wrong to suspect that the former concern predominated over the latter in terms of the Trump administration's logic.

Nonetheless, the Trump administration's potentially venal motives do not themselves make out a constitutional violation, and the Second Circuit here found none. That was so even though, as Jonathan Adler observed, from a purely partisan perspective the states drew a very favorable panel. It didn't matter -- there's no basis in the constitution for why any particular state is entitled to a particular tax regime, so the blue states lose.

I actually am, however, a bit curious as to how conservative legal observers explain this outcome by liberal justices. We often hear that only conservative-style originalism serves to "constrain" judges and prevent them from simply voting their partisan preferences. Yet these judges are not conservatives and, it seems fair to assume, were likely not fans of the Trump administration's gambit here. So what caused them to nonetheless reject the suit? The answer has to be something that constrains liberal judges from merely voting their policy preferences (at least some of the time) -- but the originalist/textualist apologia typically denies that said "something" can exist.

Pay No Mind To Door #3....

Gail Heriot is now a regular Volokh Conspiracy contributor, but I kind of wonder how long she'll last. All of her posts thus far are rather generic right-wing hobby horses of the "actually, civil rights activists are bad for minorities"/"actually, feminists are bad for women"/"actually, we should be putting more Black people in jail" sort. And while there are any number of publications that would be delighted to put those thoughts into print, it doesn't really work well in the blogging format because they're too generic. For blogging to be sustainable, it generally is responsive to contemporaneous events (if only someone else's post). In my experience, people who blog their general abstract political views tend to get bored pretty quickly.

I guess we'll see. Anyway, today's entry is "actually, feminists should oppose the Equal Rights Amendment." The argument is that feminists like certain identity-conscious programs (and hence have opposed, e.g., Proposition 209 which banned affirmative action in California), but the ERA's sex equality language would place programs of that sort in jeopardy where they operate to the benefit of women. Given this, Heriot suggests, there are two possibilities:

(1) Feminists secretly want the ERA to fail; or

(2) Feminists are willing to see sex-conscious policies struck down as unconstitutional.

Maybe. But might I suggest there might be something behind door #3?

(3) Proponents of the ERA don't understand the term "equality" in the ERA to ban the sorts of programs Heriot has in mind.

Put another way, perhaps the most straight-forward way of parsing "feminists support the ERA and support sex-conscious policies where they facilitate gender equality" is that "the prevailing public meaning of 'equality' in the ERA's text -- at least as understood by ERA backers -- does not preclude the passage and enforcement of sex-conscious policies that facilitate gender equality."

Now, to be sure, Heriot might not be wrong that the ERA, if ratified, "would very likely be interpreted to invalidate the many state-sponsored 'affirmative action' programs that currently give preferential treatment to women and women-owned businesses." The "colorblind turn" in Fourteenth Amendment jurisprudence has been notorious in not resting on even a purported attempt to discern the original understanding of the relevant constitutional text; a point of considerable embarrassment for the Court's originalists. So it strikes me as perfectly likely that the Court would give the ERA the same treatment -- ignoring powerful evidence of how what its backers and ratifiers understood themselves to be doing in favor of a particular, contested viewpoint of "equality" as sex-blindness. Still, it seems rather telling that even the prospect that an alternative view of "equality" is being appealed to here -- one that harmonizes the positions Heriot sees as inconsistent -- isn't even recognized as a possibility.

Does an Originalist Constitution Need a Standing Doctrine?

One of originalism's self-reported strengths is that it fixes constitutional meaning in a time and manner distant from immediate social controversies. The trouble with a constitution that adopts to the times is that constitutional rights are vulnerable to prevailing political winds. You may have robust freedom of speech protections now, because legal elites think it wise, but if tides change those rights disappear as the document "evolves" in another direction. And such politicized interpretations are more likely under a living constitutionalist model, because making constitutional law "in the moment" means that the enactors (i.e., the judges) will necessarily be more prone to self-interested or partisan motivations. They'll have skin in the game (even if it is only ideological) slanting their interpretations; the framers, who crafted their rules distant from today's particular social controversies, are more likely to be objective. And indeed, this is a large part of the reason why we want constitutional entrenchments in the first place: we make decisions today, when passions are cool, precisely because we cannot guarantee how we'll respond in the fires of a particular heated social controversy.

Now compare the above to modern constitutional standing doctrine. Courts can only hear actual "cases or controversies", defined as situations where the plaintiff has suffered a concrete and particular (not conjectural or hypothetical) "injury-in-fact", caused by the defendant, and redressable by a favorable ruling. The rationale is that "concrete adverseness . . . sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Deciding cases only once they've become a case ensures that courts have access to the full range of circumstances and consequences of adopting a particular constitutional rule. By contrast, "advisory opinions" passing hypothetical judgment on legal challenges which have not yet risen to a true adversarial controversy are unreliable because they lack this immediacy -- they operate in an unreal and speculative atmosphere not conducive to accurate decision-making.

These theories of decisional efficacy are in tension. The former (originalism) values distance as a means of securing objectivity, the latter (standing doctrine) favors proximity in order to achieve clarity. If we adopt an originalist methodological approach to constitutional interpretation, it is unclear why we would need or even want to preserve modern standing doctrine (at least in constitutional cases). The whole point, after all, is to decide cases without being mired inside the pressures and obscuring tendency of a genuine social controversy. The latter by definition cannot aid in ascertaining the meaning of the relevant constitutional clause (which was fixed long before); it can only distract adjudicators by drawing out the proximate and partisan consequences of a particular holding.

It is true one can craft a very instrumentalized version of the value of standing doctrine which would still apply even under "originalist" values. Under this rendition, standing doctrine assists courts because the presence of an actual controversy ensures that the relevant legal issues will be argued robustly by legal counsel with a strong incentive to press their case to the fullest. Basically, constitutional standing is valuable because it produces good briefs.

This justification for standing is oft-repeated, but I wonder if anyone believes it. Anyone who has ever observed a courtroom is well aware that standing is not actually any bar to very poorly argued cases, or worse (from the perspective of trying to come to a legally accurate decision), cases with complete mismatches between the skill sets of the attorneys. One often thinks about how one does not want a given set of facts to be the ones which set a particular legal precedent, but as a clerk I was more often worried about the precedent-setting effect of cases where important issues were being inadequately lawyered -- making potential valid arguments sound off-the-wall and foreclosing them for everyone. And even if we could be assured of competent and evenly-matched counsel, it just isn't true that concrete adverseness always promotes a full airing of legal arguments. An actual controversy means that litigation positions are chained to the idiosyncratic interests of the litigants, who may have ample reason to not promote certain outcomes or ways of looking at the case (particularly when we're talking about rules which will govern many future cases -- the problem of "playing for rules").

Once the value of the proximate social circumstances is taken out of the occasion, it is possible that advisory opinions would promote better advocacy precisely because only persons and groups who are highly invested in the issue in the abstract, not just because of how it happens to affect them immediately, would bother to argue for it.

So that's the question for the floor: Is there a tension between the decision-making values of modern standing doctrine and constitutional originalism?

He Said She Said

UC-Irvine Law Dean and noted constitutional law scholar Erwin Chemerinsky critiques originalism, and several prominent originalists including Ilya Somin, Michael Ramsey, and Mike Rappaport respond. The argument they are most disdainful of is Chemerinsky's assertion that the constitution's exclusive use of "he" to refer to the President and Vice President indicates that only men can hold those positions under the original meaning of the document. "Uncharacteristically weak," declares Somin, while Ramsey labels the claim "preposterous," an argument "so poor I wonder if someone else wrote it and attached his name to it." They both contend that until quite recently "he" was used as a gender-neutral pronoun, so it is impossible to infer that its usage in the constitution was meant to render the executive branch gender exclusive.

While they may ultimately be correct, I think Chemerinsky's argument has more heft to it than they admit. It was of course common practice to use "he" as a general pronoun, though whether that was because it was understood to include women or because it was understood that women were not relevant to the conversation is less obvious. "He" in relation to political positions could just as easily stem from a widely shared understanding that women were not political subjects. Ramsey musters some intertextual evidence to support his position -- that when Article II, Section 1 delineates the necessary qualifications for a President it speaks of a "person" rather than a "man." And that has some persuasive force, but the problem is that the same archaic convention which allowed "he" to stand in for men and women also allowed for "person" to refer only to men. There are plenty of occasions where dead white men spoke of humanity or people with the assumption and understanding that it was only men about which they spoke.

More broadly, while it may be true that "he" could at the time have been understood to include both men and women, it also certainly could be used to refer only to men (how else would one do it?). Whether or not it was taking the former meaning or the latter is an exercise in interpretation, and one that depends on context. "Men" was similarly generic in character to "he" at the dawn of our nation, yet it is hard seriously contend that the phrase "all men are created equal" was meant to include women. Would citizens during the framing era have understood "he", in the context of who the Constitution contemplated could be President, to be inclusive of men and women alike, or just men? I would wager the latter.

Now arguably this doesn't close the door on originalist analysis of the clause's meaning. Arguably, the popular belief that "he" in this context referred to men and men alone was only the original expected application of the clause, not its original semantic meaning. This is a distinction Jack Balkin draws, and not all originalists accept his typology. But working off it for a moment, it's unclear. Words and phrases often can have very different semantic meanings at the same time period (for example, "hot dog" can mean either a tubular meat or a show-off). Where multiple meanings exist at a given time, is a generally understood consensus that one particular definition attaches in a particular context a case of "expected application" or "semantics"? Not an easy question, in my view.

This is not to say that Chemerinsky is necessarily right and his critics wrong. I'm not an originalist, so I hesitate to make definitive pronouncement on what results originalism yields (in part because I think they're often more indeterminate than its proponents would care to admit). But I think his point has more gravity than its given credit for, and citing the linguistic convention that "he" could have been in that era a gender-neutral pronoun does not actually get us that far.

UPDATE: Relevant to this discussion is an interesting history of gendered pronouns in the English language. Apparently the use of "he" as a gender neutral pronoun was first proposed in 1745, so it was certainly accepted by the time of the Constitution's drafting and probably understood as a possible meaning in the abstract, though again not necessarily in the context of who could serve as president.

A Few Thoughts on Today's Race-Related SCOTUS Cases

The Supreme Court released three race/discrimination decisions today. The most prominent, Fisher v. University of Texas, also turned out to be the least meaningful -- the Court just remanded to the 5th Circuit to properly apply the strict scrutiny test. The second, Vance v. Ball State University, narrowed the definition of who is a supervisor for purpose of Title VII harassment claims. Finally, in University of Texas Southwestern Medical Center v. Nasser, the court tightened the causation requirements for retaliation claims made under Title VII. Some scattered thoughts below:

* Everybody thought Fisher would be a death knell for affirmative action. Instead, we got a very narrow decision that remanded to the 5th Circuit. I'm fine living to fight another day. And Justice Kennedy continues to confound -- he has yet to uphold a race-conscious affirmative action program, but he has also steadfastly refused to write an opinion closing the door to them entirely.

* Justice Scalia has been on the Supreme Court since 1986. Justice Thomas has been on the Supreme Court since 1991. Both have been the Court's highest profile exponents of constitutional "originalism," and both have also been the Court's primary cheerleaders for a "colorblind" constitution. Yet in all their years on the Court, these two good ships have yet to cross paths. Both Justices wrote concurrences in Fisher (Thomas' was more substantive), and that streak remains intact: Neither Justice has yet attempted to render an originalist justification of constitutional colorblindness.

* Part of Nasser's justification for the heightened causation requirement is the Court's worry about frivilous lawsuits, which the Court wants to see dismissed at summary judgment (pp. 18-19). This is infuriating on several levels. First, I'm not convinced there is any higher risk of frivilous filings in the retaliation context as in anywhere else. As I've argued earlier, there are good reasons to believe that persons do not bring discrimination cases unless they have a strong suspicion that they have been unjustly terminated. Second, there is a fair amount of evidence that people (judges included) are in fact too prone to dismiss discrimination claims as unwarranted because it interferes with their desire to view the world as just. This risk is amplified when there are other factors which could (but do not necessarily) explain the adverse decision (see the work of Katie Eyers on this).

Third, the problem of frivilous lawsuits shouldn't really be affected by this decision because the type of evidence which could support a jury verdict that an unlawful motive contributed to an adverse employment decision is no different than that which could support a verdict that it was the but-for cause of the decision. Once evidence is presented that retaliation was "on the mind" of the decision-maker, it is seemingly for the factfinder to decide how much of a role that factor played vis-a-vis other potential justifications for the adverse action. Nor will plaintiffs be able to self-regulate, because informational asymmetries prevent them from knowing their claim is precluded by a but-for cause defense. A plaintiff has only a limited ability to divine what is truly on the mind of her employer or detailed personnel records providing a basis for comparison. What an employee knows, generally, is (1) the fact of a discrimination complaint, (2) the response of the employer (presumably negative), and (3) the fact of the adverse action. In other words, she can know with some degree of certitude that her initial complaint was on the mind of the decision-maker when the alleged retaliatory decision was made, but has little knowledge of whether it was a but-for cause. Hence, we're likely to see more cases filed that end up being nowhere near the legal dividing line between good and bad cases, not because of plaintiff bad faith, but because of asymmetrical knowledge.

Evolving Thoughts

A solid observation on originalism:

[S]cholars such as Bernard Bailyn and Gordon Wood have demonstrated that the era from 1765 to the turn of the century was a dynamic period of consistent change and deep thought about political relationships. One cannot freeze a particular moment during that era and infer from it precisely what well-informed people thought, because they had not yet finished thinking about what something like freedom of speech or the relationship of church and state should be.

Ossification is hard!

What Makes This Song New?

The artist formerly known as Feddie seeks to defend his anti-stare decisis views (via).

The issue for many originalists, of course, is not whether a prior decision is “correct,” but whether the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue. If it is, and a substantial body of case law has been built upon the foundation of this decision, then it is perfectly reasonable for a justice to let that precedent stand as is (even if that justice would have ruled differently as a matter of first impression). But this type of “hard” originalist case is not at the center of the “stare decisis” debate. The question, plainly put, is this: At what point does it cease to matter that a prior Supreme Court decision is nonsense on stilts?

For those of us in the (Clarence) Thomas Camp, the answer is: Never. A Supreme Court decision that has no basis in the text, history, or structure of the Constitution is always and forever a judicial abomination, no matter how much time passes (e.g., Dred Scott v. Sandford, Plessy v. Ferguson). For the Burkean originalist (see, e.g., Scalia), the answer is: It depends on whether the line of jurisprudence is no longer controversial (i.e., it has essentially become woven into the fabric of the Constitution—whatever in the heck that means). Finally, for the living constitutionalist, the answer is: It depends on whether the decision in question enshrines into the Constitution a preferred policy preference (e.g., Roe v. Wade=Stare decisis is sacrosanct!; Bowers v. Hardwick= Stare decisis is fo’ suckas). In comparing the foregoing approaches to constitutional interpretation, it doesn’t take a law degree to recognize which one is concerned with, well, actual interpretation of the relevant text.

Is he serious? If Feddie's criteria for when to respect precedent is whether "the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue," then both Plessy and Dred Scott are simply terrible examples. Both are perfectly plausible interpretations of the constitutional text, structure, and especially history. The outcomes are not the only plausible outcomes, but legally they are not "nonsense on stilts". What those cases have in common is that they are both morally abhorrent (like, to a different degree, Bowers was). Which is why Feddie cites them. But that logic is the definition of impermissible "policy-making" as per Feddie's final paragraph.

This is the problem with how conservative judicial philosophy is actually practiced. For all its protestations of objectivity and neutrality, the policy tails completely wag the theoretical dog. Anyone who tries to sell you on the notion that Dred Scott was completely disconnected from "the law" is selling you the legal equivalent of the Brooklyn Bridge. There are plenty of grounds -- indeed, plenty of legal grounds -- to critique Dred Scott. But claiming it violates some mythical "just the facts, ma'am" vision of law is not one of them. Pretending otherwise is what happens when you, well, think the Constitution enshrines preferred policy preferences.

Minimally Minimalist

Ramesh Ponnuru has an op-ed in the NYT blasting his fellow conservatives for abandoning originalism and judicial restraint when the topic of race comes up. And he's right to do so -- in cases like Parents United and Ricci the right suddenly wants to strike down democratically enacted policies like drunken school boys because they dislike the policy.

But over at Southern Appeal, Owen Courrèges counters by making the usual stock response: Judicial review means sometimes laws are unconstitutional, so it is hardly anything problematic if conservatives sometimes find themselves striking down laws. There might be a bit of cognitive dissonance given that conservatives are significantly more likely to strike down federal laws, but in general, Courreges' point is quite reasonable.

Except that it proves too much. For anyone this side of Jeremy Waldron who does believe in judicial review, the division between laws which we uphold and laws which we strike down is always going to be at the line where those laws violate (our interpretation of) the constitution. Who does Courreges think he's distinguishing himself from? If conservatives shouldn't feel bad about striking down the law at issue in Parents United, it is precisely because they -- just like every liberal on the Court -- have a theory of the constitution which sometimes requires that laws be struck down. The term "activist" here has become totally impoverished because it translates into "decision I disagree with".

There is, of course, the separate problem about whether the conservative doctrine of originalism is faithfully applied to race cases. Justice Thomas' pathetic attempt to justify the Parents United decision on originalist grounds strongly indicates that it is not. There is not a scintilla of evidence indicating that the Reconstruction Amendments were intended, meant, or understood to create a color-blind society. And there is at least some evidence indicating they were intended to be consistent with race-conscious remedial practices. I've seen efforts to impeach the latter, with varying degrees of success. But what I've yet to see is any evidence indicating the former -- which should be a must for originalists if they're going to justify judicial supremacy on the matter.

The Impartial Referee

SEC football referees as neutral originalist judges:

Turkey's "Military"

Last year, I wrote a post noting (through Nate Oman) the parallels between Turkey's military and a "supreme court" as understood stateside. The military in Turkey views itself as the guardian of the nation's core constitutional values, most namely secularism, and has not been shy about launching coups against democratically elected governments when they, in the military's estimation, stray from these premises.

Now Rick Mills argues that Turkey's Supreme Court might be stepping into the military's shoes, preparing to launch what effectively is a coup of their own by ruling that the governing party of Turkey (the AKP) is unconstitutional (again, for being insufficiently secular).

Mills notes how this parallels and diverges with the conservative critique of a "politicized", activist judiciary. Several conservative commentators have analogized politically motivated judicial review to a military coup (most namely Robert Bork), saying in fact that there is no difference, and Mills says it could provide fodder for their claims. He also says that it might, by taking the claim seriously, in fact show off the very real differences between judicial and military checks. The ones he gives are transparancy, general lack of violence, ability to present arguments, and ability for the ruling elites to express dissent from overreaches. I gave some of my own in the year-ago post: obedience to court rulings, as opposed to military fiat, demonstrates political evolution of a state towards accepting rule of law (admittedly this doesn't work as well for politically motivated judgments).

But I'd argue that the Turkish scenario presents a graver indictment of Bork's jurisprudence than Mills lets on -- namely, that from Bork's standpoint the ruling banning the AKP might be plain right.

Originalism has always been pretty well tied to the Roman maxim "Let justice be done though the heavens fall"; otherwise known as "the law is the law, and damn the consequences." The Turkish judiciary, as Mills notes, is avowedly Kemalist -- Kemal being the founder of modern Turkey and the framer of its values. They certainly see themselves as implementing the Turkish founder's rules on how Turkey should, constitutionally speaking, be organized. The fact that in this case the ruling would effectively amount to a coup is immaterial, or should be, to Bork. Yet it is impossible to describe this as a "good" ruling -- from a democratic standpoint, from a liberal standpoint, from a rule of law standpoint, from any standpoint.

The critique is simple (originalism sometimes mandates catastrophically bad results), but effective. If Bork was on the Turkish Supreme Court, he may well have been obligated to join the coup.

Quote of the Day

From the indomitable Poz:

The question of the proper scope of a constitutional theory connects with another much discussed issue, what level of generality of the framers' intentions should guide judges in interpreting the Constitution. If you ask what the intention behind the equal protection clause was, you will find that it was both to benefit blacks in some ways but not others and to promote an ideal of equality that may be inconsistent with aspects of the framers' more specific intention, which was to entitle blacks to civil but not social equality with whites. The choice of which intention to honor determines for example whether the Supreme Court was correct to outlaw racial segregation in public schools. But it is a question about the level of generality of intention behind a single clause. To pass beyond that to intentions concerning the Constitution as a whole, a sheaf of documents written at different times and covering a variety of discrete topics--to suppose it possible to extract a single unifying intention or theme from that sheaf--is to enter cloud-cuckoo-land. This is not disparage the holistic approach but to distinguish it from one that depends on the framers' intentions, whether broadly or narrowly construed. Yet it is a considerable demerit of the holistic approach, in the eyes of many legal professionals, that it cuts free from those intentions.

Richard A. Posner, Overcoming Law (Cambridge: Harvard UP 1995), 179.

Guesswork Originalism

No matter what branch of originalism you subscribe to, it seems pretty clear that it requires a pretty heavy engagement with primary source historical texts which can illuminate the original intent/meaning/understanding of the clause in question. If law only carries normative weight via its original "construction" (which I'm using as a catch-all for these three variations), then there is no substitute for knowing this history.

But I have to say: the number of putative originalists out there far, far outstrips the amount of people who I can even optimistically imagine to be such history buffs. Some originalists undoubtedly do know the history like the back of their hand -- many originalist academics, perhaps many originalist judges. But in the public arena, I am very skeptical that official adherence to originalism is matched by the knowledge base necessary to make valid originalist claims.

By itself, this wouldn't be a problem: one could adhere to originalism, and, knowing one's relative ignorance of the pertinent history, declare one's neutrality when various politically-charged decisions come down. What grounds do they have to judge -- they have no idea what their own theory is telling them the law should have said! But of course, that doesn't happen. It seems many nominal originalists do engage in bitter recriminations against court decisions they dislike, even though they exhibit little to no knowledge of the historical circumstances that would give their critiques weight.

Guesswork originalism is thus the practice of assuming what original construction is in absence of specific knowledge of the relevant history, and then stating claims on basis of that guess. It is, to be blunt, an embarrassment to the originalist project (at least when it is not called out), because guesswork originalism is rarely anything but politics and wish. They hope the 14th Amendment's original construction mandates the recognition of interracial marriage (Loving v. Virginia), but they don't know it. Contributing to public discourse in such a way is an act of bad faith -- it makes claims on the basis of particular warrants that the speaker doesn't actually know exist. Since their interlocutors (who, not being originalists, are even less likely to know the history) can't cross-check, it leads to a debate that is entirely hypothetical even as it purports to be concrete.

Voting Politically

Some folks have been giving Barack Obama a hard time for his claim that the court's should serve as a refuge and defender of the oppressed in America. This, the argue, is politics substituting itself for law. They gleefully point to John McCain's statement on what he's looking for in a judge -- a position that is supposedly non-ideological and apolitical. Conservative judges go where the law takes them. Liberal judges go where they want to go, law be damned.

Tragically, this position is false -- and it's a conservative judge who is pointing it out. Judge Richard Posner, one of the leading conservative jurists in America today (and possibly one of my professors at the U of Chicago) has a new book out, "How Judges Think" which pops the myth that liberal justices are more likely to vote their policy preferences than conservatives. Actually, conservative judges are statistically far more likely to do so, and not only that, the trend line for conservative judges is towards increased politically-based voting, while liberal judges actually have shown a slight decrease in their (already smaller) propensity to vote in accordance with their policy preferences.

Posner thinks the reasoning for this is that, since the Reagan administration, Republicans have relied significantly more on ideological considerations when appointing judges. Liberals, he suggests, are not as organized in demanding that their nominees be ideologically pure and committed. But Brian Tamanaha (with just a hint of snark?) suggests that maybe its just that "Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views)."

I don't have any problem with the presumption that courts should be defenders of the marginalized. The rights of majorities are less likely to be threatened in democracies, because they're, well, the majority, and as John Hart Ely pointed out so many years ago, majorities aren't likely to discriminate against themselves. It should be expected that the primary function of the courts will be to defend those whose interests are not likely to be defended in the democratic arena. We have for decades held to the principle that these minorities deserve special consideration by the judiciary if their equal status is society is to be maintained. Insofar as conservatives substitute their policy preferences that often counsel against protecting minorities against majorities, they are engaging in an unabashedly political project. And as for their judicial "philosophies" which "force" them into that position, as River Tam would put it, it's not part the philosophy, it's why you chose the philosophy.

Originalism, The Death Penalty, and The Perfect Poison

The decision in Baze v. Rees set off much discussion (stemming from Justice Stevens' concurrence) as to whether the death penalty can be ruled unconstitutional. The major argument against is that the constitution clearly contemplates the use of the death penalty at several points -- most notably the due process clauses ("No person shall ... be deprived of life, liberty, or property, without due process of law...."). Given this rather clear affirmation that the state can (after satisfying due process concerns) take away a person's life, is there any room for the an abolitionist claim?

To explore this issue, I offer up a fantastical historical scenario which I nonetheless think might illuminate how context is critical, even in seemingly clear textual cases. It is the story of the Perfect Poison:

* * *

When European settlers first began to arrive in America, they discovered a bounty of new flora and fauna, wildlife and crops, that were rare or non-existent back in their homelands. One of the most intriguing of these was a small, clover like plant that grew wild in the forested expanses of the east. Local Native Americans used it as euthanasia for their dying elders, or warriors mortally wounded in battle, for, when mashed into a paste and ingested, it had the effect of immediately and painlessly causing death. Observers who saw the plant being administered marveled at how -- in contrast to the bloody spectacle of beheadings or the slow struggle for air during a hanging -- men and women who were fed the clover simply seemed to drift off to sleep, without struggle or apparent distress. Dubbed "American Hemlock", the plant was colloquially known simply as "the perfect poison."

Seeking to distinguish themselves from their more backwards European forebearers, American colonists rapidly began utilizing the perfect poison as their sole method of execution. This is not to say there was no debate over the morality of the death penalty. Quakers and other abolitionists argued strongly that the state had no right to claim a human life, as part of their generic opposition to non-violence. When America achieved independence and the constitution was being drafted, this debate grew in salience dramatically. When the due process clause was drafted to include the potential for capital punishment, progressives reformers attempted to make a stand and strip the word "life" from the text.

The debate was fierce, instigated primarily by a few true believers on each side. Knowing that their "objective" critique of capital punishment was unlikely to sway undecided delegates, abolitionists pointed to the excesses of the French Revolution and tried to emphasize the risk of brutal, undignified killing at the hands of the state. The "spirit of '76" made the delegates very receptive to the inherent human dignity possessed by all individuals, even criminals. But advocates of the death penalty responded by pointing to the perfect poison. America already had nearly 100 years of experience with this drug, and thus reliably knew that they could apply the ultimate punishment while still maintaining the dignity of the criminal. They pointed out that if, by some chance, the national government wished to abandon the perfect poison, it would run afoul of the just-completed clause prohibiting "cruel and unusual" punishment (what would later be the 8th amendment). The risks the abolitionists claimed were confined to old Europe. Americans had developed their own method of execution, that was quick, painless, and immediately lethal.

As the debate progressed, it became clear that the existence and use of the perfect poison was going to be the decisive factor. Delegates who had come in undecided were gradually won over to the pro-death penalty side. The abolitionist's arguments were abstract and unpersuasive given the existence and universal usage of the perfect poison. "Were we still in England, and capital punishment meant sickening hangings (with many more savage citizens clamoring for the return of burning at stake!), I would not hesitate to ban it," proclaimed one delegate from New Jersey. "Where the culture is one of barbarism, where the norms of the enlightenment have not penetrated, the penalty of death is too dangerous to lie in the hands of man. But, God blessed America with an excellent herb, one which evades all the traps of savagery, and our people in their infinite wisdom have taken to use it. It is always possible that our people will regress or thirst for more blood, I admit. But I believe that, given the choice between civilization and the abyss, our people will choose the former."

And so it was that the constitution passed explicitly contemplating the use of the death penalty in America.

Unfortunately, what was not foreseen by the Representative from New Jersey, nor any of the other delegates at the Convention, was the rapidity by which Americans would settle their new country. American Hemlock, as mentioned, grew only in the leafy expanses of the eastern forests, and was resistant to cultivation. It was also highly sensitive to human encroachment. As these woods were cut down to make room for new farms and homesteads, the perfect poison became harder and harder to find. At the same time, its demand was skyrocketing, leading to over-harvesting. By the mid-18th century, the plant was only rarely seen. In response to this scarcity, governors began authorizing the alternative forms of execution that had repelled the framers: hanging and firing squads. But even with this shift in policy, habitat loss had doomed American Hemlock. By 1890, it was declared extinct.

* * *

The point of this story is to illustrate how contemporary context can matter, even to an originalist or textualist. The framers sanctioned the use of the death penalty within the specific context of the availability of the perfect poison. Not contemplating the modern problem of ecological collapse, the founders did not envision the potential for these circumstances to change. But, without the perfect poison, it would seem clear that, at the very least, the question of whether the death penalty was constitutionally sanctioned was open again, notwithstanding constitutional text that contemplates its use.

Now, obviously, this story is extreme. Most obviously, there was no perfect poison, nor is there any proof that American colonists would have used or preferred even if there was. Also importantly, the story creates a scenario where the necessary trigger for permitting the death penalty physically disappeared from the planet. I am not arguing that the actual process of deliberation over the death penalty even closely approximated this.

Nonetheless, I think this story is conceptually illustrative. For one, at the very least I think it demonstrates that changes in context can theoretically alter what is and is not sanctioned by constitutional clauses, even under a very strict form of originalism. And I think it demonstrates that point more broadly that might be apparent at first glance. The framers in this story were making decisions about broad principles based upon what -- in retrospect -- we can see to be temporally-specific assumptions. Here, the assumptions were laid out explicitly (in the debate, anyway -- the drafted text did not anywhere specifically demand that life only be taken by the perfect poison), and the change in circumstances was dramatic. But in general, I think it's obvious that when people engage in deliberation they work from within the only conceptual framework available to them -- that is, their own place, time, and vantage point -- and make decisions that are contingent on those assumptions. As Iris Marion Young points out, "in political communication our goal is not to arrive at some generalities .... Instead, we are looking for just solutions to particular problems in a particular social context" [Inclusion and Democracy (Cambridge: Oxford UP 2000), 113]. Everyone deliberates that way, utilizing assumptions (usually unstated) drawn from the world around us that -- like the world itself -- can and often do change in the future.

The standard "originalist" (or perhaps "classical originalist", since I think the debate here is still largely intra-mural) response here would be to say that the constitution accounts for changing circumstances through the amendment process, nothing more. But I think the perfect poison story demonstrates why this is too thin a response. The existence of the perfect poison -- assumed to be permanent but really contextual -- was an embedded assumption laid into the text as originally deliberated and drafted. It would seem foolish to take from that ratification debate the principle that the death penalty absent the perfect poison is consistent with the mutually agreed upon principles that came out of the ratification debate, because that's clearly not what had been agreed upon. Rather, any debate about the current constitutionality of the death penalty would have to closely examine the relevant context and assumptions under which it was passed (including assumptions about justice and human dignity) to see whether they still hold up in the present day. If, for example, the founders ratified the use of the death penalty based on a conception of human dignity that is now "extinct", is that any different than ratifying the use of the death penalty based on the availability of a "perfect poison" that is now extinct? I don't know. But it's an interesting question to ask.

When Does Originalism Start?

The 15th Amendment officially enfranchised Black Americans. Hence, I presume that Blacks did not get the chance to vote for the ratification of it, or the other Reconstruction Amendments (obviously, they didn't participate in the drafting). It was only going forward that Blacks actually were officially included in the constitutional process. And, if practically speaking Blacks were only let in on truly equal terms after 1965, then only the 25th, 26th, and 27th amendments can truly be said to have been drafted and ratified with the true assent of the American population writ large.

What prompts this observation? John McGinnis and Michael Rappaport have a new paper on SSRN entitled The Desirable Constitution and the Case for Originalism. Essentially, the thesis is that originalism is a superior form of constitutional adjudication "because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories." The reason is that constitutional texts are approved by super-majorities, which helps protect minority interests and creates the type of consensus necessary for entrenched laws. Since the only time constitutional meaning is affirmed through super-majoritarian means is during the ratification process, that is the best lens for ascertaining the optimal constitutional meaning. Originalism is thus justified because and only because it represents the contours of a broad, super-majoritarian consensus.

I skimmed the article, but the part I was really interested in was where McGinnis and Rappaport deal with that ever-present anti-originalist objection: that Blacks were simply not included in this decision making process for much of America's history (the discussion is on pages 39-43). This raises a larger question of when originalism starts. If originalism is justified by the existence of broad consensus among constitutional ratifiers, originalism only makes sense as a interpretative project where such consensus was present. If a given group is excluded, it's impossible to claim broad consensus, and the whole project is suspect, at least until the exclusion is rectified. And even then, the project only works going forward. It can't claim retroactive legitimacy from the people hitherto excluded.

M&R concede that Black exclusion represented a severe constitutional failing. But, they argue, this failing was mostly corrected via the passage of the Reconstruction amendments, which, facially at least, eliminated the problem. M&R also concede that, for at least a century afterwards, Blacks remained excluded in spite of the existence of these protections. But they say that this was due to a failure of originalism -- had the amendments been construed as they were originally meant, then Blacks would have been able to participate.

The problem is that this response doesn't work within M&R's own paradigm. For starters, it is unclear why creating nominal Black inclusion in the 19th century accords retroactive legitimacy to amendments passed during the period of Black exclusion in the 18th. Perhaps, amendments 16-28 are now in the clear (though not entirely, as I'll get into below), but amendment 1-12 certainly still retain the taint of original sin, if you will. Amendments passed in the future do not and cannot alter the conditions under which laws were enacted in the past. Hence, M&R can't really grant super-majoritarian legitimacy to original meanings cast prior to the period of Black inclusion.

Second, M&R's argument is premised on the existence of actual, not theoretical, inclusion and participation. Even if a group, such as Blacks, is officially free to participate in the political marketplace, so long as there are practical bars, the over-arching consensus M&R strive for remains absent. Hence, the effective absence of Black political participation in the century after the reconstruction amendments also casts doubt on the existence of consensus, and by extension, the legitimacy of post-Reconstruction amendments. M&R do say that they view this absence as a failure of non-originalism, not originalism, but that's besides the point. Regardless of why participation wasn't present, so long as it was absent we cannot assume broad social consensus. This, as my opening paragraph indicates, pushes the "start" of originalism out past 1965, with only the 25th amendment on up qualifying.

But the final problem M&R run into is that I believe, under their framework, the Reconstruction amendments are tainted too by the specter of exclusion. Remember, M&R give legitimacy to constitutional texts not because of abstract moral theorizing that tells us that clauses like "equal protection" or "free speech" are cool. They gain legitimacy because they're drafted under conditions of broad participation and consensus. But Blacks still couldn't participate in the drafting of the Reconstruction amendments, and hence those amendments also don't actually represent super-majoritarian consensus either.

This is easy to look past, because it seems apparent that had Blacks been included, they obviously would have voted in favor of these amendments. But this isn't quite true -- as M&R concede, it's entirely possible that they would have demanded additional clauses and protections, for example, ascertaining social rights (they also say they might have tried to protect affirmative action. I think that the case for permitting voluntary affirmative action is far stronger under putatively originalist frameworks than the argument against it -- in fact, I've seen no evidence whatsoever making the case against it beyond mere assertion. It is claims such as this which make me skeptical of originalism's supposed "neutrality" writ large). More importantly and fundamentally, we have no idea what the drafting, debate, text, or ratification would look like under those conditions. Trying to salvage the event through historical counter-factuals is vain endeavor -- but that runs true in both directions. It's equally speculative to assume that the constitution would look roughly the same, as it would be guess at what or how much might have changed. Hence, what would be truly accurate to argue is that originalism is irredeemably corrupted when texts are drafted outside of situations consisting of full and equal participation, and we have to look to other justifications for our preferred interpretative schema in such cases.

At this point, M&R fall-back considerably from their original position. They claim that, even granting the existence of continued defects in the constitution, the costs of fixing them by judicial fiat (or junking the constitution entirely) are outweighed by the costs, particularly that of legal instability and constitutional dissension. This is less of a response than a capitulation -- it admits that their metric may end up reifying political decisions cast under Black exclusion, but claims there is no away around that without trashing the rest of their model. At which point, I don't think they can be surprised if Black legal theorists and their allies advocate doing just that. Stability, after all, is not a boon when we're stabilizing an injustice. Uncertainty about whether you have equal rights is still better than certainty you don't have them. And none of these issues are ones that directly relate to M&R's thematic argument for why originalism is justified: the existence of a super-majoritarian consensus, because we're already beyond the point at which such consensus could be reached. Once this structural argument for legitimacy is abandoned, and we move to more contested issues of weighing (such as the need for legal stability), then the apparatus becomes vulnerable to attack from other competing values, and it loses whatever claim it had to immunity from non-originalist critique.

So, to conclude: the exclusion of Blacks from the political community means that the original consensus surrounding constitutional amendments passed in this period is nullified. Consensus can't be extended retroactively, so the passage of the Reconstruction amendments doesn't impact the original infirmity of the bill of rights and original constitution. And consensus requires actual, not theoretical, ability to participate, so neither can we claim that amendments passed in periods of de facto Black exclusion have true originalist legitimacy. Consequently, M&R's contemporary originalism can only start with those amendments passed under conditions of full and equal participation, which gives us an originalism of amendments 25-27, but nothing else. If originalism is to survive in the future, it has to kill off its desire to rescue the past. There is no way to salvage original meanings of constitutional clauses drafted under conditions of mass exclusion. Originalism can only work in situations where the entire community is participating. Where this did not occur, we must find other paths to constitutional interpretation.

Disconnected Originalism

I'm not an originalist, for reasons I can and have expounded on at great length. But that doesn't mean I don't understand it's appeal, particularly to lay persons not used to thinking about theories of interpretation. When we make a statement, we want it to mean what we want it to mean. We get upset when folks take our words to mean something we did not intend. "That wasn't what I meant!" is a common lament of those who feel that the interpretation of their words has deviated from their original intention. Originalism, of course, appeals to that same instinct. If I don't like my words to mean something different from what I meant them to mean, why should want anything else for my constitution?

The problem is this linkage is one of original intention. But, for reasons I outline in this post, most originalists today have abandoned original intent as unworkable, in favor of original meaning or understanding. These two forms of originalism don't connect with that intuitive "I want to mean what I want to mean" formula. Hence, we have a disconnect between how originalism is academically justified and operationalized, and it gains popular support and legitimacy.

Pseudo-Originalist Arguments

In a previous post, I unpacked the originalism trinity, exploring how the broad term "originalism" really encompasses at least three subtly different interpretative theories. To follow-up that one, I thought I'd write a post on "pseudo-originalist" arguments -- ones that often drape themselves under the label of "originalism", but really are something else entirely. Specifically, I've noticed that often, nominal originalists simply cite the fact that a proposition or position is old in lieu of proving that it constituted the original intent, meaning, or understanding of the clause in question. For example, Scalia and Thomas, the Supreme Court's prominent originalists, defend the "color-blind" principle, which is quite old (the term dates back to Justice Harlan's Plessy dissent in 1896, and Justice Thomas has tried to date it back even further to the writings of Fredrick Douglass) and has a long pedigree in American racial thought. But there is very little evidence to show that this is the original meaning of the 14th Amendment -- a fact that becomes evident when one remembers that Plessy was decided nearly 30 years after the ratification of the Amendment. Another good example would be the debate over whether the federal government only has powers "expressly" delegated to it. John Marshall answered that question in the negative in McCulloch v. Maryland, holding that the omission of the word "expressly" from the 10th Amendment (in contrast to the Articles of Confederation, where it was included), showed that the original intent of the constitution was to give the central government broad powers. But as Kurt Lash argues in a upcoming paper, that conclusion appears to be incorrect -- the framers did, in fact, think that the powers of the federal government were supposed to be limited to that which was expressly enumerated.

This mistake tangles up two very different justifications for legal decision-making. To be sure, there are perfectly good reasons to take the longevity of a given legal principle into account when deciding how to rule on present cases. But these reasons aren't the same as the one's that motivate originalists. Originalism is normally justified on two grounds: that it is more democratic, because it enacts the policies people actually and consciously chose to vote for, and that it represents the "true" meaning of the clause, before it was muddled about by interpretation. Appeals to the longevity of a rule (through stare decisis or other means), by contrast, are defended on two rather different premise: that people have come to rely on the prior rule (predictability), and that the fact that the rule has "stood the test of time" signifies that it is working.

Two sources might be the cause of the mix-up. The first is that both originalism and, to coin a term, temporalism are both appealing to historical texts in opposition to a contemporary re-interpretation. The second is that both the reasoning used by originalism and that used by temporalism are appealing to modern-day conservatives -- they (say they) like democratic deference and absolute Truth (originalism), but the also are strong proponents of social stability and relying on received wisdom (temporalism). It is unsurprising that the two might be blended together, as they both make arguments that judges of similar political alignments will find persuasive.

But that notwithstanding, originalism and temporalism are actually very different. The latter is more pragmatic and Burkean -- it draws its power not from the "legitimacy" of the interpretation, but the fact that society has already adopted it as the "rule" and has creating working institutions relying on that. Originalism, by contrast, is ideological -- it claims supremacy because it shows the "true" meaning of the law in question and because it's interpretation is democratically ratified. It doesn't particularly care about how the change in law will work in practice.

Why does this matter? The blurring together of originalism and temporalism, in effect, gives conservative jurists two bites at the apple when seeking to justify their preferred policy ends as legally mandatory. Some policies are legally defensible under an originalist regime, but not a temporalist one, others vice versa (and some both, and some neither). People who think of themselves as constrained by an interpretative philosophy, of course, are not free to simply hop from theory to theory until they find the one that fits their preference for the case. But that self-check only kicks in when the judge is cognizant that this is what she is doing. When originalism and temporalism are not seen as separate, that constraint falls away.